Full case report

Balan v Moldova

Reference Application no. 19247/03
Court European Court of Human Rights

Judge Bratza J and Casadevall, Bonello, Traja, Pavlovschi, Šikuta and Hirvelä JJ

Date of Judgment 29 Jan 2008


Summary

Human rights – Photographs – Protocol 1, Article 1, ECHR – Peaceful enjoyment of possessions – State use of private property – Unauthorised use of photographs – Photographer’s right to compensation


Facts

The complainant photographer (B) retained the intellectual property rights in a photograph of a castle that he had taken. He complained that the photograph’s use by the respondent state as a background for national identity cards without his permission constituted an unjustified control of use of property within the meaning of Protocol 1 Article 1 to the European Convention on Human Rights. The respondent state refused B’s request for compensation for use of the photograph and that decision was upheld by the domestic courts.


Issue

Whether the state had violated Article 1 of Protocol 1 of the Convention


Held

B had possession of the photograph within the meaning of Protocol 1 Art 1. The state’s use of the photograph without B’s permission amounted to an interference with B’s property rights that was disproportionate to the aims pursued. The Court accepted that the respondent state’s issuing of identity cards to its population served an undoubtedly important public interest. However, it went on conclude that such an aim could have been reached in a variety of ways that did not involve a breach of B’s rights; a contract could have been concluded with B or another photograph could have been used. Accordingly the use made by the respondent state of B’s photograph amounted to a violation of Protocol 1 Art 1 of the Convention. B was entitled to EUR 5,000 for pecuniary and non-pecuniary damages.


Comment

The European Court of Human Rights concluded that the “domestic courts failed to strike a fair balance between the interests of the community and those of the applicant, placing on him an individual and excessive burden”.


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