CYIL vol. 11 (2020)

CYIL 11 (2020) THE CONTEMPORARY ISSUES OF POST-MORTEM PERSONAL DATA … the right to respect for their private and family life, their home and his correspondence”, while the Article 8(1) of the EU Charter provides that “Everyone has the right to the protection of personal data concerning him or her”. At the same time, both provisions say no word about the possibility of their application to post-mortem privacy protection, just using the ambiguous word “everyone”. The case law of the European Supranational Courts plays the key role in these conditions, somehow spreading light on the above issue. Despite the fact that the CJEU has not yet had an opportunity to directly show its approach on this issue, in the Lindqvist case, the Court indicated that “(…) nothing prevents a Member State from extending the scope of the national legislation implementing the provisions of Directive 95/46 to areas not included within the scope thereof, provided that no other provision of Community law precludes it.” 36 This case can be somehow connected to the post-mortem data protection issue. As we can see, even if the case was related to the predecessor of the GDPR, the Court indirectly showed its attitude to post-mortem data protection leaving it to the EU Member States’ margin of appreciation, on the basis of which some EU Member States, as it was already mentioned, taking into account different criteria, have made changes in their legislation on data protection. Unlike the CJEU, the ECtHR has had numerous disputes to consider related to the recognition of human rights (including data protection) for deceased persons. However, the Strasbourg Court generally takes a cautious approach which it is possible to see through analysing its case law. For example, in the cases of Yakovlevich Dzhugashvili v. Russia 37 , Koch v Germany  38 , Sanles Sanles v. Spain  39 or Thevenon v. France  40 , the Court held that Article 8 of the ECHR should only be applied to a living person, but not to the deceased, because it is a “non-transferable” right. In the case of Akpinar and Altun v. Turkey , the ECtHR ruled that “human quality is extinguished on death and, therefore, the prohibition of ill-treatment is no longer applicable to corpses”. 41 In the case of the Estate of Kresten Fittenborg Mortensen v. Denmark , the Court stated, that despite “the concept of “private life” is a broad term not susceptible to exhaustive definition” 42 , which “covers the physical and psychological integrity of a person” 43 and “a compulsory medical intervention, even if it is of minor importance, it constitutes an interference with the right to respect for a person’s private life” 44 , “however, it would stretch the reasoning developed in this case-law too far to hold in a case like the present one that DNA testing on a corpse constituted interference with Article 8 rights of the deceased’s estate” 45 and “considers that there has been no interference with the rights of KFM’s estate for the purposes of Article 8 Section (§) 1 of the Convention” 46 . Although in the 36 C-101/01 Lindqvist , ECLI:EU:C:2003:596, para 98. 37 Yakovlevich Dzhugashvili v. Russia , App. no. 41123/10, (dec.) 9 December 2014, paras 23-24. 40 Thevenon v. France ((dec.), no. 2476/02, 28 June 2006). 41 Akpinar and Altun v. Turkey, App. no. 56760/00, para 82. 42 See Gillan v. Quinton v the United Kingdom , App. no. 4158/05 12 January 2010 para 61; See also X and Y v. the Netherlands , judgment of 26 March 1985, Series A no. 91, p. 11, para 22. 43 Ibid. 44 see X v. Austria , App. no. 8278/78, Commission decision of 13 December 1979, Decisions and Reports (DR) 18, p. 155; Acmanne and Others v. Belgium , no. 10435/83, Commission decision of 10 December 1984, (DR) 40, p. 254; and Y.F. v. Turkey , no. 24209/94, § 33, ECHR 2003-IX. 45 The Estate Of Kresten Filtenborg Mortensen v. Denmark, App. no. 1338/03 15 May 2006. 46 Ibid. 38 Koch v Germany , App. no. 497/09, 17 December 2012, para 78. 39 Sanles Sanles v. Spain ((dec.), no. 48335/99, ECHR 2000-XI).

233