CYIL vol. 11 (2020)

ONDREJ HAMUĽÁK – HOVSEP KOCHARYAN – TANEL KERIKMÄE CYIL 11 (2020) framework of this case the judge Fura-Sandstrom mentioned that the obligation to respect human dignity and integrity “cannot be deemed to end with the death of the individual in question” 47 , whose opinion was based on Kantian’s categorical imperative principle (which is typical in German case law) according to which any person should be treated as an aim, but not as a means. Of course, in some cases, such as Jäggi v. Switzerland , the Court admitted that the “right of the deceased, deriving from human dignity, to protect their remains from interferences contrary to morality and custom” 48 . In the Putistin v. Ukraine case the Court stated that “the reputation of a deceased member of a person’s family may, in certain circumstances, affect that person’s private life and identity, and thus come within the scope of Article 8 (…) where a publication in the mass media allegedly provoked the presupposition that the applicant’s father had been a Gestapo collaborator” 49 . However, while analysing the case law of the ECtHR, we can conclude that even if Article 8 of the ECtHR contains some elements of the right to data protection, it is not yet interpreted as providing any effective protection to the deceased’s rights (including data protection). As a rule, the Court follows a case by case approach to this issue, granting protection only to living people and refusing to recognize the existence of human rights for the dead, except for the cases where the issue of the personal life of the deceased is directly related to the protection of the rights of living persons. So, the case law of both European Supranational Courts does not provide any unambiguous and effective criteria for post- mortem data protection. 3.2 Approaches in the Case Law of the National Courts of Selected EU Member States (Example of German, Italian and French Case Law) Analysing the case law of different national courts, L. Edwards and E. Harbinja argue that: “(…) many states whose legal system derives partly or wholly from civilian tradition have historically been more inclined to recognize both the principled existence of personality rights, and their persistence after death, for reasons related to the historical respect for notions of liberty, dignity and reputation, especially of creators (…) Nonetheless, there are significant differences even among the key civilian legal systems as to transmission of personality interests on death.” 50 Such differences can be shown, first of all, in the examples of French, Italian and German case law. For example, considering the deceased person’s dignity protection, the German courts referred to several statutes and, in particular, to Article 1 of the German Basic Law. In the cases of Wilhelm Kaisen  51 and Heinz Lembke  52 , the Federal Constitutional Court of Germany has specified that in the case of the deceased, on the one hand, the right to the dignity of the individual, and on the other hand, the moral, personal and social significance

47 Reference is made to the German Basic Law and the Mephisto Case. 48 Jäggi v. Switzerland, App. no. 58757/00, Judgment of 13 October 2006, para 19. 49 Putistin v. Ukraine , App. no. 16882/03, Judgment of 21 November 2013, para 33.

50 EDWARDS, L., HARBINJA E.: Protecting Post-Mortem Privacy: Reconsidering The Privacy Interests Of The Deceased In A Digital World . Cardozo Arts & Entertainment Law Journal , 2013, vol. 32. no. 1, pp. 83-129. Available at: http://www.cardozoaelj.com/wp-content/uploads/2011/02/Edwards-Galleyed-FINAL.pdf. 51 BVerfG, Beschluss der 1. Kammer des Ersten Senats vom 05. April 2001 – 1 BvR 932/94 –, Rn. 1-33. Available at: http://www.bverfg.de/e/rk20010405_1bvr093294.html. 52 BVerfG, Beschluss des Zweiten Senats vom 13. Juni 2017 – 2 BvE 1/15 –, Rn. 1-161. Available at: http://www. bverfg.de/e/es20170613_2bve000115.html.

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