SECOND SECTION
CASE OF
PAULIUKIENĖ AND PAULIUKAS v. LITHUANIA
(Application no.
18310/06)
JUDGMENT
STRASBOURG
5 November 2013
This judgment will become final in the circumstances set
out in Article 44 § 2 of the Convention. It may be subject to
editorial revision.
In the case of Pauliukienė and Pauliukas v. Lithuania,
The European Court of Human
Rights (Second Section), sitting as a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Işıl Karakaş,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Lawrence Early, Acting Section Registrar,
Having deliberated in private on 15 October 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
18310/06) against the Republic of Lithuania lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Lithuanian nationals, Ms Zita Pauliukienė
(“the first applicant”) and Mr Vytautas Pauliukas (“the second applicant”), on
2 May 2006.
The applicants were represented by Mr T. Bezgėla,
a lawyer practising in Kaunas. The Lithuanian Government (“the Government”)
were represented by their Agent, Ms E. Baltutytė.
The application concerns in particular the second
applicant’s complaint that he had been defamed by the media, in breach of his
rights under Article 8 of the Convention.
On 10 December 2008 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
Written submissions were
received from the Open Society Justice Initiative, the Media Legal Defence
Initiative and the Romanian Helsinki Committee, which had been granted leave by
the President to intervene as third parties (Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of Court, as in force at the material time).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The first applicant, Ms Zita Paliukienė, was born in 1954. The second applicant, her
husband Mr Vytautas Pauliukas, was born in 1953. They are both Lithuanian
nationals and live in Kaunas.
A. The applicants’ disputes with neighbours in connection
with the applicants’ house
In December 1995 the first applicant bought a
portion (339/631) of a plot of land at 40 Raseinių Street and 13 Telšių
Street in Kaunas. In January 1996 the subplot was registered in her name
in the Real Estate Registry.
It appears from a letter from the authorities of
29 April 2003 to the applicants’ neighbour, Č.P., that on
3 April 2003 the Kaunas territorial planning authorities issued an administrative-law
penalty notice against the first applicant on the ground that she was pursuing
construction works inside a warehouse (ūkinio pastato viduje) built
on the above-mentioned plot of land and was disregarding the orders of the
official supervising construction works. The Government state that to their
knowledge that decision has not been quashed. On 7 November 2003 the first
applicant was again ordered to stop the building works as she had no permit to
carry them out.
On 29 September 2003 the Kaunas region
territorial planning authorities issued an administrative-law penalty notice on
the ground that the first applicant had unlawfully reconstructed a house
situated at 40 Raseinių Street and 13 Telšių Street in Kaunas.
The first applicant was fined 1,000 Lithuanian litai (LTL). On 7 November
2003 the administrative court quashed the decision, on the procedural ground
that the penalty notice of 29 September had been issued in the absence of
the first applicant. The case was returned to the territorial planning
authorities. On 25 November 2003 the authorities issued a repeat
penalty notice about the unlawfully reconstructed house. This time the
applicants’ daughter was present and signed the document. She told the
authorities that they could not enter the house because she had no keys to it. The
first applicant was fined in the same amount, LTL 1,000.
By a decision of 5 February 2004 the Kaunas
Regional Administrative Court quashed the decision of 25 November 2003 due
to procedural flaws. The court considered that the first applicant’s offence
was of a continuous nature, and that it was therefore necessary to establish
the date on which the offence had become known, because a fine under the Code
of Administrative Law Offences could be imposed only within six months of
the date the violation became known. The territorial planning authority
appealed.
On 20 May 2004 the Supreme Administrative
Court allowed the appeal in part and returned the case for new examination due
to procedural flaws. The court noted however that the legal qualification of
the first applicant’s actions was not questioned in that case.
By a decision of 1 June 2004 the Kaunas Regional
Administrative Court found that the date on which the administrative violation by
the first applicant had come to light was 15 May 2003. Given that the
fine on the first applicant was imposed only on 25 November of that year,
more than six months had passed since that violation surfaced, and therefore no
administrative punishment was possible. The case was discontinued.
In January 2009 the first applicant asked the Kaunas
territorial planning authority to approve the house in question, built on the
plot of land belonging to both applicants, as fit for habitation. The
authorities informed her, however, that there were certain deficiencies in
respect of the arbitrarily reconstructed house. Moreover, after those
deficiencies had been eliminated the second applicant was also obliged to
obtain approval in relation to the building from their neighbour Č.P.
B. The applicants’ disputes with neighbours in connection
with the applicants’ plot of land
The applicants’ neighbour Č.P. had sued the
second applicant in civil proceedings for pecuniary damage, on the ground that
on 13 October 2002 the second applicant had arbitrarily and unlawfully
demolished Č.P.’s fence. In that connection the municipal authorities had
earlier found the second applicant guilty of a violation of administrative
law. Their decision was upheld by administrative courts at two levels of
jurisdiction. By a decision of 28 September 2003 the Kaunas City District
Court allowed Č.P.’s civil claim in full.
On 4 April 2003 the territorial planning
authorities gave the first applicant an administrative warning, because
she had unlawfully built a wall on State land and had refused to demolish it.
This conclusion was confirmed by the Kaunas City District Court on
24 April 2003.
Further, on 12 July 2003 the applicants’ neighbours Č.P.,
P.Ž., J.D. and L.B. addressed a written complaint to them. The neighbours
stated that for the last eight years the applicants had been ignoring the law, had
lied, and had used corrupt connections when managing their property. They also
submitted that the second applicant had used his position as a Kaunas city
elder for his personal proprietary interests, instead of trying to keep an untarnished
reputation. The neighbours gave a detailed list of the applicants’
misdemeanours as confirmed by the authorities’ decisions, where it had been
mentioned that the applicants’ house was too large, and that they had unlawfully
occupied certain parts of a plot of land belonging to neighbours J.D. and L.B.,
and had also occupied State land. The neighbours expressed the wish, however,
that in future all the neighbours would be able to live in peace, and that the
applicants would abide by the law. The Government state that later on a copy of
this note was given to a journalist.
On 27 February 2004 the first applicant was
informed by the authorities that some parts of her house were outside the boundaries
of the plot of land at 40 Raseinių Street and 13 Telšių Street in
Kaunas and were on land belonging to the State. She was reminded that arbitrary
occupation and use of State land entailed administrative liability. On
9 March 2004 a penalty notice for an administrative offence was issued to
the first applicant for arbitrary occupation of State land. However, by a
ruling of 14 April 2004 the court found that the boundaries between
the applicants’ land and the State land had been established only after those
parts of the house had been built, and that therefore the first applicant could
not be held liable for the offence.
In 2004 the first applicant brought court
proceedings against her neighbour Č.P., claiming that in 1994 he had built
a brick wall between her plot of land and his, and that that wall encroached on
her plot by 1.16 square metres and thus breached her property rights. Her civil
claim was dismissed as unfounded by both the first-instance and the appellate
courts. On 2 November 2005 the Supreme Court terminated the proceedings,
upholding the lower courts’ conclusions.
C. Civil proceedings for defamation
On 11 November 2003 the daily newspaper Respublika
published an article covering the applicants’ boundary disputes with Č.P. and
the other neighbours. The article mentioned that that year the second applicant
had been elected elder of Kaunas city centre (Kauno miesto centro seniūnas). The article alleged that
the applicants were illegally building on their plot of land and had occupied
part of the land belonging to the other owners and the State. The relevant passages
of the article stated as follows:
“The elder was occupying the neighbours’ land [Seniūnas užėmė kaimynų žemę];
Elected Kaunas city centre elder this year,
Vytautas Pauliukas has been building illegally on his plot after occupying land
belonging to his neighbours and the State, and is not complying with
prohibitions by various institutions on rebuilding the derelict dwelling house situated
in his yard [Šiemet Kauno miesto Centro seniūnu išrinktas Vytautas
Pauliukas, pažeisdamas įstatymus, savo sklype vykdo savavališkas statybas,
yra užėmęs valstybinę ir kaimynams priklausančią
žemę, nepaiso įvairių institucijų draudimo rekonstruoti
apleistą gyvenamąjį namą, stovintį kieme];
When going through the process of acquiring the land in 1995,
[Mr and Mrs] Pauliukai enlarged their plot at the expense of the
neighbours and the State - the entrance to L.B.’s yard was narrowed and the
roof of [the applicants’] house overhung P.Ž.’s outhouse [1995
metais tvarkydami žemės įgijimo dokumentus, Pauliukai pasididino
teritoriją kaimynų ir valstybinės žemės sąskaita -
susiaurėjo L.B. įvažiavimas į kiemą, o virš nedidelio P.Ž.
namuko pakibo Pauliukų namo stogas];
The residential dwelling section of the city’s housing
department ordered Pauliukai [reference to both applicants] either to submit a
reconstruction project or to demolish the building by 2 May. However, Pauliukai
did not comply with the order, and continued to build a new house inside the
old one without permission [Miesto ūkio departamento
būsto skyrius įpareigojo Pauliukus iki gegužės 2-osios parengti
statinio kapitalinio remonto projektą arba jį nugriauti. Deja, Pauliukai
nurodymo nepaisė ir senojo pastato viduje, neturėdami tam
leidimų, ėmė statyti naują namą];
V. Pauliukas has worked as deputy director of Inkaras, an
enterprise belonging to EBSW [V.Pauliukas yra dirbęs EBSW
koncernui priklausančiame “Inkare” direktoriaus pavaduotoju];
Despite several notices [warning them] not to proceed with the
illegal building work, Pauliukai have disregarded letters from various
institutions and have continued with the works [Nors Pauliukai
buvo kelis kartus įspėti nevykdyti savavališkų statybų, jie
įvairių tarnybų raštų nepaiso ir toliau atlieka darbus].”
After the article
was published, on 1 December 2003 the second applicant asked the newspaper
to correct the part of the article he considered to be erroneous and damaging
to his reputation as a Kaunas city centre elder. He was also dissatisfied at
being linked to the Inkaras company, owned by the EBSW group of companies,
which was at that time under criminal investigation for bringing Inkaras to insolvency.
As the newspaper did not comply with this request, he then brought a claim in the
civil courts, seeking rectification of the article and compensation for
non-pecuniary damage. The third party in the civil proceedings, the applicants’
neighbour Č.P., told the court that the article did not contain any untruths,
and suggested that the civil claim be dismissed.
On 3 December 2004 the Vilnius City Second
District Court dismissed the second applicant’s claim. The court took into
account that when preparing the publication the journalist had talked to the
applicants’ neighbours, examined documents, telephoned the second applicant and
had regard to his opinion. The court pointed out that, in accordance with
Article 2.24 § 5 of the Civil Code, the press could be held liable for
defamation if it knew that information it published did not correspond to reality,
that is if it acted in bad faith. However, in some circumstances the media had
a right to trust certain sources of information (for example, an official
police report or a document by other municipal or State authorities). In such
cases the media were exempt from the obligation to verify the accuracy of that
information. On this point the court noted that the applicants’ neighbours had repeatedly
addressed complaints to State and municipal institutions about the applicants’
housing projects. Those complaints had been investigated by the authorities and
official replies had been received. For the court, the case file showed that
both of the applicants had been held liable under administrative law for rebuilding
the house without a permit and for unlawfully occupying State land. Conversely,
the applicants’ neighbours had been honest when they addressed the State and
municipal institutions, because, as the replies from those institutions
indicated, their accusations in respect of the applicants had proved to be
true. These were precisely those written replies that were given to the
journalist when she was preparing the publication. Given that they were
official documents, the journalist had a right to trust their content.
The district court also noted that the first
applicant had been named in the article as the owner of the plot of land in
question. Given that no evidence had been submitted to the court to the effect
that the property had been divided between the two applicants, the presumption
that the plot of land was joint property of the two applicants as spouses was a
valid one. This explained why the article mentioned not only the first applicant
but also the second applicant. It was also noteworthy that in the civil court the
second applicant had acknowledged that the authorities had ordered a halt to construction
on the plot of land belonging to his wife, but argued that they had obeyed the
order. However, from the letter of 29 April 2003 (see paragraph 8 above)
it was clear that the reference in the article to administrative sanction was
correct. As regards the second applicant’s prior work at Inkaras, he himself
admitted that he had worked at the Inkaras factory as head of a production unit
(cecho viršininkas). Accordingly, the second applicant had failed to
prove that his dignity had been insulted because of the published reference to his
position at Inkaras.
The Vilnius City Second District Court next observed
that defamation meant publication of material which did not correspond to
reality and which in the light of law and moral and customary norms damaged a person’s
honour, dignity or reputation in society. It indicated further that the insulting
nature of the material published did not have to be proven if the words or
combination of words used were manifestly insulting. The court concluded that
the publication at issue did not contain such language. Next, the court noted
that in defamation cases the court had to examine the construction of the
sentence as well as the whole context of the publication in order to find out
the exact meaning of the word or combination of words. The court concluded that
the second applicant had indicated only separate sentences but had not had regard
to the whole content of the publication.
By a ruling of 13 April 2005, the Vilnius
Regional Court allowed the second applicant’s claim in part and ordered the
daily to print a rectification. The appellate court considered that the lower
court had erred as regards the factual circumstances of the case. Specifically,
the documents from the Real Estate Registry showed that the owner of the house
and of the plot of land was the first applicant. Consequently, the published
material did not correspond to reality, because the evidence of inappropriate
use of the property had been linked to the first applicant but not to the
second. Similarly, as regards the second applicant’s former post at Inkaras,
which belonged to the EBSW group, that statement was misleading, because the
second applicant had in fact worked as a director at a [subsidiary] enterprise,
Inkaro padai, which he did not deny. The appellate court thus concluded that
naming the second applicant separately and together with the first applicant as
persons who had broken the law, and linking those breaches of the law to the
first applicant’s employment, as well as stating that in the past the second
applicant had had links to the EBSW group, was damaging to his authority as a
public figure. The court considered that the journalist had deliberately
ignored her obligation to provide information that was fair, accurate and
impartial, in breach of Article 3 of the Law on the Provision of Information to
the Public.
On 2 November 2005 the Supreme Court took a
final decision in the case. The court indicated that Article 25 of the Lithuanian
Constitution guaranteed the right to freedom of expression. Nevertheless, that
right was not an absolute one, and had to be exercised taking into account the
rights of others as well as the interests of society. Furthermore, Articles 4
and 19 of the Law on the Provision of Information to the Public obliged the media
to present information correctly, without bias and in compliance with the requirements
of journalistic ethics.
As regards the circumstances of the case, the
Supreme Court noted that the publication at issue described a situation in
which there was conflict among four co-owners of the plot of land over the boundaries
of that plot, the applicants’ illegal construction and their unlawful occupation
of the neighbours’ and State land. It was clear from the content of the
applicants’ neighbours’ complaints to various institutions and the replies they
had received that those neighbours were trying to protect their rights which
had been breached, and also to make sure that the second applicant, who was a
public figure, abided by the law. The neighbours, acting in good faith, gave
copies of those complaints and replies to the journalist, who in turn wrote an
article on the subject. The first-instance court was correct to find that the official
replies from municipal and State institutions, which referred to violations of
law committed by both applicants in that they had reconstructed the house
without a permit and had also occupied State-owned land and demolished part of a
neighbour’s wall, among others, were a sufficient basis for publication of information
about a public figure, the second applicant, who had been elected Kaunas city centre
elder.
The Supreme Court also emphasised that the mere
fact that the second applicant was not mentioned in the replies from the
municipal authorities did not confirm that the violations could not be linked
to him. Despite the fact that the plot of land and the house where both
applicants lived were registered in the first applicant’s name, that property
had been acquired during their marriage. Accordingly, this was their joint
property which they had equal rights to manage and use, in accordance with
Article 21 of the Code of Marriage and Family. Moreover, in the event that
a co-owner of the property of a public figure exercised their co-ownership
rights inappropriately, the public figure (in this case the second applicant)
had a duty to control his co-owner’s actions and to prevent violations of the law,
as in this case. For the Supreme Court, if a co-owner exercising the joint
property rights of both spouses violated the pecuniary and non-pecuniary rights
of other persons, the other co-owner incurred liability as well, the more so if
that other co-owner was a public figure. Having regard to the above arguments,
the Supreme Court concluded that the appellate court had wrongly interpreted Article
3 of the Law on the Provision of Information to the Public and erred in finding
that the journalist had deliberately violated that law by breaching her
responsibility to present correct, precise and impartial information. The
Supreme Court concluded that those errors made the decision of the appellate
court invalid. The decision of the first-instance court was upheld.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Article 22 of the Lithuanian Constitution
provides that the private life of a person is inviolable. Information
concerning private life may be collected only in accordance with the law, which
protects everyone from arbitrary and unlawful interference and from
encroachment upon his or her honour or dignity. Article 25 provides for a right
to seek and impart information. This right may not be limited unless it is
necessary to do so to protect a person’s private life or dignity.
As regards the right to privacy and protection
of honour and dignity, the Civil Code reads as follows:
Article 2.23. Right to Privacy and Secrecy
“1. The privacy of a natural person shall be inviolable.
Information on a person’s private life may be made public only with his consent
...
3. Establishment of a file
on another person’s private life in violation of law shall be prohibited. A
person may not be denied access to the information contained in the file except
as otherwise provided by the law. Dissemination of information on a person’s
private life shall be prohibited unless, taking into consideration the person’s
official position and his status in society, dissemination of the said
information is in line with a lawful and well-grounded public interest in
having the said information.
4. Publication of matters
related to a person’s private life, however truthful they may be, as well as
making private correspondence public in violation of the procedure prescribed
in paragraphs 1 and 3 of the given Article, and invasion of a person’s dwelling
without his consent except as otherwise provided by the law, keeping his
private life under observation or gathering information about him in violation
of law as well as other unlawful acts, infringing the right to privacy, shall all
form the basis for bringing an action for compensation for pecuniary and
non-pecuniary damage incurred by the said acts...”
Article 2.24. Protection of Honour and Dignity
“1. A person shall have the right to demand the
refutation, in judicial proceedings, of publicised data which abase his honour
and dignity and which are erroneous, as well as redress for pecuniary and
non-pecuniary damage incurred by the placing in the public domain of the said
data ... Data which have been made public shall be presumed to be erroneous unless
the publisher proves the opposite to be true.
2. Where erroneous data have
been publicised by mass media (including the press, television and radio) the
person who is the subject of the publication shall have the right to provide a
refutation and demand that the media outlet concerned publish the said
refutation free of charge or make it public in some other way ...
3. A request for redress for property, pecuniary or
non-pecuniary damage shall be investigated by the court, irrespective of
whether or not those responsible for the dissemination of those data have refuted
them.
4. Where a media outlet refuses
to publish a refutation or make it public in some other way, or fails to do so within
the term provided in paragraph 2 of the given Article, the person concerned
thereby acquires the right to apply to court in accordance with the procedure
established in paragraph 1 of the given Article. The court shall establish the
procedure and the term for the refutation of data which were erroneous or
abased the person’s reputation.
5. Media outlets which
publicise erroneous data abasing a person’s reputation shall provide redress for
damage to property, pecuniary and non-pecuniary damage incurred only in cases
when it knew or should have known that the data were erroneous, as well as in
cases when the data have been made public by its employees or anonymously and
the media outlet refuses to name the person who supplied the said data.
6. A person who places erroneous data in the public domain shall
be exempted from civil liability in cases when the publicised data relates to a
public figure and his State or public activities, and the person who has placed
them in the public domain can show that his actions were in good faith and
meant to introduce the person and his activities to the public ...”
. The
relevant parts of the Law on the Provision of Information to the Public read as
follows:
Article 3. Basic Principles of Provision of Information to
the Public
“1. In the Republic of Lithuania freedom of information is
enshrined in the Constitution, this and other laws, and international treaties
of the Republic of Lithuania.
2. Producers and disseminators of public information as well as
journalists shall be governed in their activities by the Constitution and laws,
international treaties of the Republic of Lithuania, also by the principles of
humanism, equality, tolerance, and respect for an individual person; they shall
respect freedoms of speech, creativity, religion, and conscience, variety of
opinion, adhere to the norms of professional ethics of journalists, support the
development of democracy and public openness, promote civil society and State
progress, enhance State independence, and develop national culture and
morality.
3. Public information must be presented in the media fairly,
accurately and in an unbiased manner.
4. The use of freedom of information may be restricted by the
requirements, conditions, restrictions or penalties set out in the laws and
necessary in a democratic society to protect Lithuania’s State security, its
territorial integrity, public order and constitutional system, to guarantee the
impartiality of its judicial authority in order to prevent law violations and
crimes, disclosure of confidential information and protect people’s health and
morality as well as their privacy, dignity and rights.
5. Persons shall be held accountable for violating the freedom
of information and statutory restrictions on the use of freedom of information
in accordance with the procedure established by this and other laws.”
Article 4. Freedom of Information
“1. Every person shall have the right to freely express his
ideas and convictions. This right encompasses freedom to maintain one’s
opinion, to seek, receive and disseminate information and ideas in accordance
with the conditions and procedure set out in the laws...”
Article 14. Protection of Private Life
“1. When producing and disseminating public information, a
person’s right to have his personal and family life respected must be ensured.
2. Information about a person’s private life may be published
only with the consent of that person, except for the cases specified in
paragraph 3 of this Article and if the publication of such information does not
cause harm to that person.
3. Information concerning private life may be published without
a person’s consent in cases where the publication of such information helps to
reveal violations of law or criminal acts, also where such information is
presented in open court. Furthermore, information about the private life of a
public figure (State political figures, public servants, heads of political
parties and public organisations, as well as other persons participating in
public or political activities) may be made public without his consent where
such information discloses the circumstances of the aforementioned person’s
private life or his personal characteristics which are of public significance ...”
Article 19. Information not to be Published
“...
2. It shall be prohibited to
disseminate disinformation and information which is slanderous and offensive to
a person or degrades human dignity and honour...”
The Law on Civil Service provides that the civil
service is based on the principles of rule of law, transparency and
responsibility for the decisions taken. One of the basic principles of conduct for
civil servants is exemplariness: he or she must duly perform his or her duties
and be of irreproachable reputation, respectful and orderly (Article 3).
The Law on Local Government provides that the
neighbourhood (seniūnija) is a structural
territorial unit of a municipality. The neighbourhood is headed by the elder (seniūnas), who is appointed by the director of the
municipal administration in accordance with the Law on Civil Service. The elder
carries out internal management of the neighbourhood (Articles 30 and 31).
On 15 May 1998 the Supreme Court adopted a
ruling concerning courts’ practice in civil cases concerning protection of
honour and dignity (Teismų praktika, 1998, Nr. 9). The court
ruled that a person’s privacy and his or her honour and dignity should be
protected when it is established that information about him has been
disseminated without his consent and in the absence of lawful public interest. When
assessing non-pecuniary damage caused it was important to take into account
such criteria as the form and the manner of dissemination, the guilt of the
defendant, and the content of the information.
Article 21 of the Code of Marriage and Family (Santuokos
ir šeimos kodeksas) provided that property obtained by spouses during their
marriage was their common and joint property. They had equal rights to manage
and use that property. Even if the property had been registered in the name of
one of the spouses, it was considered to belong to both spouses.
III. RELEVANT INTERNATIONAL LAW
. Article
17 of the International Covenant on Civil and Political Rights, acceded by
Lithuania on 20 November 1991, provides that no one shall be subjected to
arbitrary or unlawful interference with his privacy, nor to unlawful attacks on
his honour and reputation. Everyone has the right to the protection of the law
against such interference or attacks.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The second applicant complained that the article
in the daily Respublika had tarnished his reputation, and thus breached
his right to respect for his private life, as provided in Article 8 of the
Convention, which reads as follows:
“1. Everyone has the right to respect for his
private and family life...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society ... for the prevention of
disorder or crime, for the protection of health or morals, or for the protection
of the rights and freedoms of others.”
A. The parties’ submissions
1. The applicant
The second applicant argued that the facts
presented in the impugned article were aimed at creating a sensation and represented
him negatively to the public eye, thus insulting
his dignity and honour and damaging his reputation. He maintained that even
though the journalist had relied on numerous documents issued by the
authorities before 11 November 2003, the day of the publication, those decisions
on the applicants’ behaviour had later been revoked by the domestic courts. The
second applicant also argued that the plot of land at issue belonged to his
wife (the first applicant). On this point he strongly objected to the Supreme
Court’s conclusion to the effect that the co-owners of a property were jointly
responsible for it in the event of any misconduct, and that if one of the
co-owners was a public figure he had a duty to prevent violations of the law (see
paragraph 27 above). The second applicant vehemently asserted that neither he
nor his wife had ever unlawfully occupied land belonging either to the State or
to their neighbours, nor had they committed any of the other violations of the law
attributed to them in the publication. He also maintained that reference to his
previous employment as deputy director of the Inkaras enterprise, part of the EBSW
group, was defamatory, because, given the bad publicity surrounding the EBSW
group, he had thereby been classified as a person linked to criminal activities
in the past.
Lastly, whilst acknowledging the importance of
freedom of expression, the second applicant maintained that in his case the
journalist had overstepped the bounds of responsible journalism. She had not tried
to check the information, and her intention had been not to present relevant
information to the reader, but to humiliate him and tarnish his reputation.
This conclusion could be drawn from the context, the headlines and the absence
of official documents supporting the material published. Accordingly, there had
been a breach of his rights under Article 8 of the Convention.
2. The Government
The Government firstly argued that there had
been no interference with the second applicant’s right to respect for his
private life. They noted that civil servants acting in an
official capacity were, like politicians, subject to wider limits of acceptable
criticism than others (see Janowski v. Poland [GC], no. 25716/94,
§ 33, ECHR 1999-I). Under Lithuanian law, civil
servants had a duty to behave in an exemplary manner and to have an irreproachable
reputation. This obligation extended beyond official duties, and was not
exclusively associated with actions performed in an official capacity. The
Government thus believed that the actions of civil servants should continually
be subject to public scrutiny and be open to criticism, especially when it came
to cases of disregarding the law. The Government also submitted that the
adverse effect of the publication was limited only to possibly unpleasant
feelings for the second applicant, given that, to their knowledge, he continued
to hold the position of neighbourhood elder at least until April 2009, when the
Government submitted their observations on admissibility and merits.
Accordingly, the severity of the adverse effects on his reputation were not
sufficiently serious to give rise to an interference with his private life (see
Costello-Roberts v. the United Kingdom, 25 March 1993,
§ 36, Series A no. 247-C).
Should the Court nevertheless find that there
was an interference, the Government maintained that it was in conformity with the
requirements of Article 8 § 2. Firstly, the interference was prescribed by law.
The Civil Code and the Law on Provision of Information to the Public contained
provisions on the protection of privacy in the context of freedom of
expression. However, they equally stipulated that information on a person’s
private life could be made public without his consent, taking into
consideration his official position and his position in society, if the
dissemination of the said information corresponded to a lawful and well-founded
public interest in that information. Furthermore, the interference had a
legitimate aim, that of protecting the rights and interests of others. In the
instant case the protection of private life had to be balanced against freedom
of expression. Above all, the principal aim of the publication was not to
tarnish the second applicant’s reputation, but to disclose information of
public importance, after the applicants’ neighbours had approached the
journalist with documents indicating that their legitimate interests were being
violated by the applicants’ actions.
The Government also considered that in balancing
two interests the Lithuanian courts had given sufficient weight to the second
applicant’s rights under Article 8 of the Convention. Firstly, they had rightly
qualified the statements in the article as statements of fact and thus
susceptible to proof, therefore placing a more stringent test on the
journalist. The courts had emphasised that the journalist had acted in good
faith. When preparing the article she had gathered information from all
available sources: she had spoken not only with the applicants’ neighbours, but
with the second applicant himself. It was also critical that the journalist had
relied on official documents - sources of information which, according to the
Supreme Court, she had a legitimate right to trust. Taking into account the systemic,
multiform nature of administrative-law violations attributed to the property jointly
owned by both applicants and that they had acted in an extremely abusive and inappropriate
manner, the statements in the publication were accurate enough to allow the
conclusion that the right to freedom of expression did not overstep the bounds
of responsible journalism. In the light of the above, the Government considered
that there was a fair balance in the instant case in favour of freedom of
expression.
3. Third-party interveners
The representatives of the Open
Society Justice Initiative, the Media Legal Defence Initiative, and the
Romanian Helsinki Committee firstly submitted that to the extent the Court
recognised that a right to reputation resided in Article 8 of the Convention,
it should define and circumscribe that right carefully. The interveners
endorsed what they understood as the Court’s view in Karakó v.
Hungary (no. 39311/05, 28 April 2009) that an alleged defamation victim was not automatically
entitled to Article 8 protection, in so far as not every injury to public
standing constituted an encroachment on that person’s right to respect for his
or her private life. The threshold for Article 8 protection had to be clear and
convincing evidence that defamatory allegations were a) factual in nature; b)
primarily intended to insult the applicant (rather than to honestly contribute
to public debate); and c) “of such a seriously offensive nature” that the
publication had “an inevitable direct effect on the applicant’s private life”.
In judging whether the criteria have been met the Court should take into
account the extent to which the applicant had entered the public arena and
should therefore demonstrate a higher degree of tolerance to criticism. For the
interveners, such a standard was not only required by the established tenets of
the Court’s case-law on Article 10, but was also consistent with the
interpretation of Article 17 of the International Covenant for Civil and
Political Rights and the prevailing practices of the Council of Europe States. Most
importantly, such a standard would provide media outlets with clear direction
in making their decisions to publish important material on matters of public
concern. Uncertainty would only encourage caution and thus deprive the public
of material that should be published.
. Finally,
the interveners considered that in cases involving Article 8 based
challenges to expressions on matters of clear public interest, the findings of
national courts in favour of free expression should be “set aside” only if they
can be shown to be clearly arbitrary or summarily dismissive of the
privacy/reputation interests at stake. A different approach risked both unravelling
the hard-won victories in domestic implementation of the Court’s case-law on
Article 10 of the Convention and opening the Strasbourg floodgates to
ill-founded claims of damage to reputation.
B. The Court’s assessment
1. Admissibility
The Government have argued that the publication
at issue did not affect the second applicant’s rights under Article 8 seriously
enough for that provision to be applicable. The Court reiterates, however, that
in the article the second applicant had been named as a person holding public
office and repeatedly breaking the law. It has
already been accepted in the Convention organs’ case-law that a person’s right
to protection of his or her reputation is encompassed by Article 8 as being part of the right to
respect for private life. The Court therefore considered that a person’s reputation, even if that
person was criticised in the context of a public debate, formed part of his or
her personal identity and psychological integrity and therefore also fell
within the scope of his or her “private life” (see Pfeifer v. Austria,
no. 12556/03, § 35, 15 November 2007, with further references). The Court explained its approach to such cases in its
judgment in A. v. Norway (no. 28070/06, § 64, 9 April 2009),
holding that in order for Article 8 to come into play, the attack on personal
honour and reputation must attain a certain level of gravity and in a manner
causing prejudice to personal enjoyment of the right to respect for private
life (see Mikolajová v. Slovakia, no. 4479/03, § 55, 18 January 2011; Roberts and
Roberts v. the United Kingdom, (dec.), no. 38681/08, §§ 40-41, 5 July
2011). Having regard to the accusations in respect
of the second applicant, the Court sees no reason to hold otherwise. Article 8 of the Convention thus applies. The Court also finds that the second applicant’s complaint
is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds. The
complaint must therefore be declared admissible.
2. Merits
(a) General principles
. Starting
from the premise that the present case requires an examination of the fair
balance that has to be struck between the second applicant’s right to the
protection for his private life under Article 8 of the Convention and the
publisher’s right to freedom of expression as guaranteed by Article 10, the
Court finds it useful to reiterate some general principles relating to the
application of both articles.
. The
Court firstly notes that the second applicant did not complain of an action by
the State but rather of the State’s failure to protect his reputation against
interference by third persons, in breach of Article 8 of the Convention. It
reiterates that, although the object of Article 8 is essentially that of protecting
the individual against arbitrary interference by the public authorities, it
does not merely compel the State to abstain from such interference: in addition
to this primarily negative undertaking, there may be positive obligations
inherent in effective respect for private life. These obligations may involve
the adoption of measures designed to secure respect for private life even in
the sphere of the relations of individuals between themselves. The boundary
between the State’s positive and negative obligations under this provision does
not lend itself to precise definition. The applicable principles are,
nonetheless, similar. In both contexts regard must be had to the fair balance
that has to be struck between the competing interests of the individual and of
the community as a whole; and in both contexts the State enjoys a certain
margin of appreciation (see Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004-VI, and Pfeifer,
cited above, § 37). In this context, the Court
considers that the State’s obligation under Article 8 to protect the applicant’s
reputation may
arise where statements going beyond the limits of what is considered acceptable
criticism under Article 10 are concerned.
. The
Court has held on numerous occasions that freedom of expression constitutes one
of the essential foundations of a democratic society and one of the basic
conditions for its progress and for each individual’s self-fulfilment. Subject
to paragraph 2 of Article 10, it is applicable not only to “information” or
“ideas” that are favourably received or regarded as inoffensive or as a matter
of indifference, but also to those that offend, shock or disturb. Such are the
demands of pluralism, tolerance and broadmindedness, without which there is no
“democratic society”. As set forth in Article 10, freedom of expression is
subject to exceptions, which must, however, be construed strictly, and the need
for any restrictions must be established convincingly (see Axel Springer AG v. Germany [GC], no. 39954/08, § 78, 7 February 2012 and the case-law
cited therein).
. The
Court has also repeatedly emphasised the essential role played by the press in
a democratic society. Although the press must not overstep certain bounds, regarding
in particular protection of the reputation and rights of others, its duty is
nevertheless to impart - in a manner consistent with its obligations and
responsibilities - information and ideas on all matters of public interest. Not
only does the press have the task of imparting such information and ideas; the
public also has a right to receive them. Were it otherwise, the press would be
unable to play its vital role of “public watchdog” (see Bladet Tromsř and
Stensaas v. Norway [GC], no. 21980/93, §§
59 and 62, ECHR 1999-III; and Pedersen and
Baadsgaard v. Denmark [GC], no. 49017/99,
§ 71, ECHR 2004-XI).
. In
addition, the Court is mindful of the fact that journalistic freedom also
covers possible recourse to a degree of exaggeration, or even provocation (see
the Prager and Oberschlick v. Austria judgment of 26 April 1995, §
38, Series A no. 313). Furthermore, it is not for the
Court, any more than it is for the national courts, to substitute its own views
for those of the press as to what techniques of reporting should be adopted in
a particular case (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298, and Eerikäinen and Others v. Finland, no. 3514/02, § 65, 10 February 2009).
. The
Court has recently set out the relevant principles to be applied when examining
the necessity of an interference with the right to freedom of expression in the
interests of the “protection of the reputation or rights of others”. It noted
that in such cases the Court may be required to ascertain whether the domestic
authorities struck a fair balance when protecting two values guaranteed by
the Convention which may come into conflict with each other in certain cases:
namely, on the one hand freedom of expression protected by Article 10, and on
the other the right to respect for private life enshrined in Article 8 (see Axel Springer AG, cited
above, § 84, and MGN Limited v. the United
Kingdom, no. 39401/04, § 142, 18 January 2011;
for the criteria relevant for the balancing
exercise see Von Hannover v. Germany (no. 2) [GC], nos.
40660/08 and 60641/08, §§ 108-113, ECHR 2012).
. Lastly,
in cases such as the present one the Court considers
that the outcome of the application should not, in principle, vary according to
whether it has been lodged with the Court under Article 10 of the Convention by
the publisher who has published the offending article or under Article 8 of the
Convention by the person who was the subject of that article. Indeed, as a
matter of principle these rights deserve equal respect (see Hachette Filipacchi Associés (ICI PARIS) v.
France, no. 12268/03, § 41,
23 July 2009; and Mosley v. the
United Kingdom, no. 48009/08, § 111, 10
May 2011). Accordingly, the margin of appreciation
should in principle be the same in both cases. Where the balancing exercise
between those two rights has been undertaken by the national authorities
in conformity with the criteria laid down in the Court’s case-law, the Court
would require strong reasons to substitute its view for that of the domestic
courts (see MGN Limited, cited above, §§ 150 and 155, and Palomo
Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and
28964/06, § 57, ECHR 2011).
(b) Application of these principles to the present
case
In the instant case the
Vilnius City Second District Court and the Supreme Court found that the six
statements published in Respublika on 11 November 2003 were not
defamatory and thus did not breach the second applicant’s right to protection
of his privacy. The Court therefore has to examine whether those two courts balanced
the second applicant’s right to protection of his private life in respect of
the statements made in Respublika against the publisher’s right to
freedom of expression in accordance with the criteria laid down in its
case-law.
. Much
of the parties’ argument in the present case related to the definition of the ownership
of the plot of land situated at 40 Raseinių Street and 13 Telšių
Street in Kaunas and the buildings built on it, which had
been the cause of the neighbour dispute and thus were mentioned in the
publication. The second applicant claimed that that property had been
registered in his wife’s name and that therefore he should not be held liable
for any wrongdoing. The Government contested that argument, claiming that the
property was jointly owned by both applicants, who thus were equally
responsible for its management. Even though it is not for the Court to resolve
the questions of application of the domestic law, the Court is inclined to
share the Government’s argument, which appears to be based on Article 21 of the
Code of Marriage and Family (paragraph 34 above) and, above all, has been
upheld not only by the Vilnius City Second District Court, but also by the
Supreme Court - the highest level of jurisdiction for interpretation of the
domestic law. Accordingly, the Court will continue its examination on the
premise that it was for both applicants to make sure that their property was
properly managed.
. The
Court reiterates that the first-instance and the cassation courts found that
the publication at issue was in accordance with the provisions of the Civil
Code and of the Law on the Provision of Information to the Public (see paragraphs 21 and 25 above), and thus had a basis in
domestic law. Those two courts also attached due importance to the link between
the second applicant’s position as an elder of Kaunas city centre and the
subject matter of the article - abuse of powers and interference with the rights
of others by a public official when managing the applicants’ property. In view
of the second applicant’s position as a representative of local government and
the powers stemming from his post, the public had a right to be informed about
conduct of a municipal official which was openly at odds with that position. In
the view of those two courts, the publication thus contributed to a debate of
general interest.
. The
Court agrees with this assessment. It notes in particular that the definition
of what constitutes a subject of general interest will depend on the
circumstances of the case. The Court has already recognised the existence of
such an interest where publication concerned political issues or crimes (see Rothe
v. Austria, no. 6490/07, § 55, 4
December 2012).
. The
role or function of the person concerned and the nature of the activities that
are the subject of the report constitute another important criterion. In that
connection a distinction has to be made between private individuals and persons
acting in a public context, as political figures or public figures.
Accordingly, whilst a private individual unknown to the public may claim
particular protection of his or her right to private life, the same is not true
of public figures. A fundamental distinction needs to be made between reporting
facts capable of contributing to a debate in a democratic society, relating to
politicians in the exercise of their official functions for example, and
reporting details of the private life of an individual who does not exercise
such functions (see Von Hannover v. Germany (no. 2), cited
above, § 110,
with further references). Given that there were repeated accusations of breaches
of administrative law, and having regard to the second applicant’s position in
local government, the Court agrees with the domestic
courts’ conclusion that public interest in the report clearly prevailed over his
interest in the protection of his private life and of his reputation.
. The
Court reiterates that the way in which the information was obtained and its
veracity are also important factors. Indeed, it has held that the safeguard
afforded by Article 10 of the Convention to journalists in relation to
reporting on issues of general interest is subject to the proviso that they are
acting in good faith and on an accurate factual basis and provide “reliable and
precise” information in accordance with the ethics of journalism (see Axel Springer AG, cited
above, § 93). In the instant case the Court observes that the domestic courts
considered the information published in the article of 11 November 2003 to
be a question of fact, rather than a value judgment, and accordingly required
more accuracy from the journalist. In setting out their reasons the first-instance
and the cassation courts observed that the journalist had acted in good faith.
She had questioned not only the neighbours, who represented the opposing side
in the conflict, but also the second applicant himself. Most importantly, those
two courts emphasised that when gathering her facts the journalist had relied
on official documents issued by the State and municipal authorities (see paragraphs
21, 23 and 26 above). For those two courts, the journalist had no reason to
doubt the veracity of that information. On this last point the Court reiterates
its position that the press should normally be entitled, when contributing to
public debate on matters of legitimate concern, to rely on the contents of
official reports without having to undertake independent research. Otherwise,
the vital public-watchdog role of the press may be undermined (see Bladet
Tromsř and Stensaas, cited above, § 68).
. The
second applicant has argued that the appellate court apparently did not follow
that approach, given that some of the administrative-law violations had
eventually been revoked by courts (see paragraphs 10, 12 and 17 above). While
this is true, the Court cannot overlook the fact that in April 2003 the first
applicant had twice been warned by the territorial planning authorities because
she had been pursuing construction works without permission and had unlawfully
built a wall on State land (see paragraphs 8 and 15 above). Similarly, the first
applicant’s administrative- law violation in connection with unlawful
reconstruction of the applicants’ house had been established in September 2003
(see paragraph 9 above). Furthermore, the same month the court allowed a
civil claim by Č.P., the applicants’ neighbour, against the second
applicant for unlawful demolition of Č.P.’s wall (see paragraph 14 above).
These facts had been clearly established by the State and municipal authorities
before the article was printed in Respublika on 11 November 2003,
and no final administrative court decision had yet been taken until that
day (see paragraphs 12 and 17 above). Accordingly, the Court is not prepared to
disagree with the first-instance and cassation courts’ finding that there was
sufficient evidence supporting the allegations against the second applicant of
wrongful management of property. Lastly, whilst noting that reference to the
second applicant’s former job at the Inkaras enterprise had not been entirely
accurate, the Court does not find it utterly misleading either, for the second
applicant has himself admitted that he worked at a related enterprise, Inkaro
padai, in the past (see paragraph 22 above). The Court thus considers that that
reference alone did not overstep the limits of careful journalism. Moreover,
the impugned article apparently had no serious consequences, because, as has
been argued by the Government and not denied by the second applicant, he kept
his post of a Kaunas city elder long after the article was printed (see
paragraph 39 above).
. In
sum, the domestic courts found that the text of the article published in Respublika on 11 November
2003 fell within the limits of permissible reporting on a matter of general
interest. They took extensive evidence, in particular from a number of official
documents, and came to the conclusion that in essence the allegations made in
the article were true. The Court sees no reason, let alone any strong reason,
to deviate from the domestic courts’ findings, which were based on thoroughly
established facts and a detailed assessment of the conflicting interests, in
accordance with the criteria established by the Court’s case-law. Accordingly,
nothing in the case file discloses a failure on the domestic authorities’ part
to protect the second applicant’s right to respect for his private life and
reputation.
. The
foregoing considerations are sufficient for the Court to conclude that there
has been no violation of Article 8 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The first applicant complained under Article 1
of Protocol No. 1 to the Convention that she had been deprived of the
effective control and use of 1.16 square metres of her land through the
unlawful construction of a fence by a neighbour, Č.P., on her plot. The
Court notes, however, that the claim was examined and dismissed as unfounded by
domestic courts at three levels of jurisdiction (see paragraph 18 above).
Having had regard to the documents submitted by the parties, the Court sees no
reason to question that finding. It follows, that this complaint must be
dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the second applicant’s complaint under
Article 8 of the Convention admissible and the remainder of the application
inadmissible;
2. Holds that there has been no violation of
Article 8 of the Convention.
Done in English, and notified in writing on 5 November 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Guido
Raimondi
Acting Registrar President
