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ARMONAS v. LITHUANIA - 36919/02 [2008] ECHR 1526 (25 November 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/1526.html
Cite as:
27 BHRC 389,
[2008] ECHR 1526,
(2009) 48 EHRR 53,
[2009] EMLR 7
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SECOND
SECTION
CASE OF ARMONAS v. LITHUANIA
(Application
no. 36919/02)
JUDGMENT
STRASBOURG
25 November 2008
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 Armonas v. Lithuania,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 4 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 36919/02) 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 a Lithuanian national, Judita Armonienė
(“the applicant”), on behalf of her late spouse Laimutis
Armonas (“the husband”) on 2 October 2002.
The
applicant, who had been granted legal aid, was represented by
Ms L. Meškauskaitė, a lawyer practising in
Vilnius. The Lithuanian Government (“the Government”)
were represented by their Agent, Ms E. Baltutytė.
The
applicant alleged that the State had failed to fulfil its obligation
to secure respect for her family's private life as a result of the
derisory sum of non-pecuniary damages awarded in her husband's
favour, even though a serious violation of the family's privacy had
been committed by a major newspaper. In addition, the applicant
claimed a violation of her husband's right to an effective domestic
remedy as the national law imposed a low ceiling on compensation for
non-pecuniary damage caused by the unlawful public dissemination of
information by the mass media about a person's private life.
On
7 September 2005 the Court decided to give notice to the
Government of the applicant's complaints under Article 8 of the
Convention. On the same date, the Court decided to apply Article 29 §
3 of the Convention and to examine the merits of the complaints at
the same time as their admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant's family lived in the village of ĄZuolpamušio,
Pasvalys district. Her husband died on 15 April 2002.
Prior
to his death, on 31 January 2001 the biggest Lithuanian daily
newspaper, Lietuvos Rytas, published a front page article
entitled “Pasvalys villages paralysed by the fear of death:
residents of the remote Lithuanian area shackled by the AIDS threat”
(Pasvalio kaimus paralyZavo mirties baimė: nuošalios
Lietuvos vietovės gyventojai atsidūrė AIDS grėsmės
gniauZtuose). The following statements of particular concern to
the applicant's family were made in the article:
“Notoriously promiscuous, thirty-year old Gitana
Biriuk is already sick with this fatal disease ...
An HIV-positive person lives in a village in the
Pajiešmenys area. This [is] G. Biriuk, an unmarried mother of
two children ...
The father of G. Biriuk's two children is an inhabitant
of Paiešmenių [village] - L. Armonas...
Medics at the Pasvalys hospital confirmed that G. Biriuk
is HIV-positive. The woman was taken to hospital with tuberculosis.
Blood tests revealed that she was HIV-positive ...
The woman [G. Biriuk] has already been diagnosed with
AIDS - this is the last stage of the infection. The disease can last
from a year up to ten years but finally ends with death...
Laimis Armonas is HIV-positive...
Last week ... the father of G. Biriuk's two children,
living in Pajiešmenių village, was taken to Pasvalys
hospital with a high fever...
L. Armonas is another victim of AIDS...
From the appearance of the patient [reference to L.
Armonas] and the symptoms of the disease, the doctors suspected that
he might be HIV-positive. The reply recently received from the AIDS
centre confirmed the suspicions.”
The
husband instituted proceedings in the Vilnius City Third District
Court, suing the newspaper for non-pecuniary damages in the amount of
50,000 Lithuanian litai (LTL, or about 14,460 euro (EUR)) for a
breach of his right to privacy.
On
19 July 2001 the court ruled in his favour. The court found that the
defendant had not proved the truthfulness of the published
allegations as to the husband's relationship with G. Biriuk, or that
the information about the husband's state of health, indicating his
full name and residence, had been made public with his consent, or
met a legitimate public interest in drawing society's attention to
the rising number of HIV cases in Lithuania. Having assessed all the
relevant evidence, the court decided that there was no proof that the
husband was the father of G. Biriuk's children. The article
humiliated the husband and the publication of information about his
private life caused him non-pecuniary damage, had an impact on his
health, and a negative influence on his family life and his
reputation. It also restricted his family's opportunities to
communicate with others. The court noted that in 2001 the statutory
capital of the newspaper company - JSC Lietuvos Rytas - was
LTL 33,754,700 (approximately EUR 9,776,037). However, the court
concluded that the information had not been made public deliberately,
and applied Article 54 § 1 of the Law on the Provision of
Information to the Public. Accordingly, it awarded the husband the
maximum sum set by this Law in such circumstances, i.e. LTL 10,000
(about EUR 2,896), in compensation for non-pecuniary damage.
The
husband appealed to the Vilnius Regional Court. On 8 October 2001 the
court dismissed the appeal, agreeing with the lower court's
reasoning.
As
mentioned above, the husband died on 15 April 2002.
On
24 April 2002 the Supreme Court upheld the appellate court's
decision. It stated that an award exceeding the amount of LTL 10,000
set by the aforementioned legislation could be granted if it were
established that information had been published intentionally. The
court observed that by printing the article the newspaper had
committed two violations: first, it had published information which
was not true and which debased the husband's honour and reputation,
and, secondly, it had published data about his private life without
his consent. However the Supreme Court ruled that the lower courts
had come to the well-founded conclusion that the husband had not
proved that the defendant had published information about him
deliberately and, therefore, there was no ground to increase the
amount of compensation for non-pecuniary damage fivefold, as
envisaged by Article 54 § 1 of the Law on the Provision of
Information to the Public.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Article
22 of the Constitution of the Republic of Lithuania provides as
relevant:
“The private life of a human being shall be
inviolable...
The law and the courts shall protect everyone from
arbitrary or unlawful interference in his private and family life, or
from encroachment upon his honour and dignity.“
Article
30 of the Constitution provides that compensation for material and
non-pecuniary damage suffered by a person shall be established by
law.
According
to Article 71
of the Civil Code applicable
at the material time, concerning compensation
for non-pecuniary damage:
“Mass media, organisations or persons who publish
false information degrading the honour and dignity of a person, and
also information about a person's private life without the consent of
that person, shall pay compensation for non-pecuniary damage. The
courts will assess the amount of the compensation, between five
hundred and ten thousand litai.
In assessing monetary compensation for the non-pecuniary
damage caused, the courts shall take into consideration the financial
status of the person who has caused the damage, the gravity and
consequences of the violation and other circumstances important to
the case.”
Article 6.250 of the Civil Code, concerning non-pecuniary damage and
in force since 1 July 2001, reads as follows:
“1. Non-pecuniary damage shall be deemed to be a
person's suffering, emotional experiences, inconvenience, mental
shock, emotional depression, humiliation, deterioration of
reputation, diminution of opportunities to associate with others, and
so on, evaluated by a court in terms of money.
2. Non-pecuniary damage shall be compensated only in
cases provided for by laws. Non-pecuniary damage shall be compensated
in all cases where it has been incurred due to crime, health
impairment or deprivation of life, as well as in other cases provided
for by laws. The courts, in assessing the amount of
non-pecuniary damage, shall take into consideration the consequences
of the damage sustained, the gravity of the fault of the person by
whom the damage is caused, his financial status, the amount of
pecuniary damage sustained by the aggrieved person, and any other
circumstances of importance for the case, as well as the criteria of
good faith, justice and reasonableness.”
The
relevant provisions of the Law on the Provision of Information to the
Public at the material time read as follows:
Article 14. Protection of Privacy
“1. In producing and disseminating public
information, it is mandatory to ensure a person's right to have his
personal and family life respected.
2. Information about a person's private life may be
published, with the exception of the instances stipulated in
paragraph three of this Article, only with the consent of that person
and if publication of the information does not cause undue harm to
that individual.
3. Information concerning private life may be published
without the person's consent in those cases when publication of the
information does not cause harm to the person or when the information
assists in uncovering violations of the law or crimes, as well as
when the information is presented in the examination of the case in
an open court process. ...”
Article 54. Compensation for pecuniary and
non-pecuniary damage
“1. A producer and (or) disseminator of public
information who publishes information about an individual's private
life ... without the natural person's consent, also a producer who
publishes false information degrading to the honour and dignity of
the person, shall pay compensation for non-pecuniary damage to that
person in a manner set forth by law. The amount of the compensation
for non-pecuniary damage may not be in excess of LTL 10,000, except
for cases when the court establishes that false information degrading
the honour and dignity of a person has been published intentionally.
In such cases the amount may, by a decision of a court, be increased,
but not more than fivefold. In each case the amount awarded to the
plaintiff may not be in excess of five percent of the annual income
of the publisher and (or) disseminator of public information. ...
4. In determining the amount of monetary compensation
for non-pecuniary damage, the courts shall take into account the
financial circumstances of the person who caused the damage, the
gravity of the offence, its consequences and other significant
circumstances. ...”
Article
52 of the Law on the Health System, restricting the disclosure of
information about a person's health, at
the material time provided as follows:
“1. Restriction on the disclosure of information
about the state of health of a person is intended to guarantee the
inviolability of his private life and state of health.
2. It shall be forbidden to make public in the mass
media information about the state of health of a person without his
written authorisation...
3. Individual or public health care specialists shall
be restricted ... from violating the confidentiality of the
information about an individual's private life or
personal health ... which they have
acquired while performing professional duties.”
The
Ruling of the Senate of Judges of the Supreme Court of Lithuania of
15 May 1998 no. 1 “On the application of Articles 7
and 71 of the
Civil Code and the Law on the Provision of Information to the Public
in the case-law of the courts examining civil cases on the protection
of honour and dignity”, in so far as relevant, provided as
follows:
“18. ... Privacy of the person should be protected
when it is established that information about a person's private life
has been disseminated without his or her consent and in the absence
of lawful public interest. Lawful public interest is to be understood
as the right of society to receive information about the private life
of a person ... where it is necessary to protect the rights and
freedoms of others from negative impact. The rights of the person are
protected irrespective of whether the disseminated information
degrades his or her honour and dignity.”
The
Ruling further stipulated that the producer or disseminator of public
information who publishes information about an individual's private
life without his or her consent must compensate for the non-pecuniary
damage caused. When assessing the monetary compensation for such
damage, the courts should take into consideration the guilt of the
defendant, his or her behaviour after the dissemination of the
information, the negative impact on the plaintiff's professional or
social life and the form and manner in which the information was
disseminated, as well as its content and other relevant
circumstances. The monetary compensation could not exceed the limits
provided by Article 71
of the Civil Code and Article 54 of the Law on the Provision of
Information to the Public.
III. RELEVANT INTERNATIONAL INSTRUMENTS
On
23 January 1970 the Parliamentary Assembly of the Council of Europe
adopted Resolution 428, containing a Declaration on Mass
Communication Media and Human Rights, the relevant part
of which reads as follows:
C. Measures to protect the individual against
interference with his right to privacy
“1. There is an area in which the exercise of the
right of freedom of information and freedom of expression may
conflict with the right to privacy protected by Article 8 of the
Convention on Human Rights. The exercise of the former right must not
be allowed to destroy the existence of the latter.
2. The right to privacy consists essentially in the
right to live one's own life with a minimum of interference. It
concerns private, family and home life, physical and moral integrity,
honour and reputation, avoidance of being placed in a false light,
non-revelation of irrelevant and embarrassing facts ... protection
from disclosure of information given or received by the individual
confidentially...
7. The right to privacy afforded by Article 8 of the
Convention on Human Rights should not only protect an individual
against interference by public authorities, but also against
interference by private persons or institutions, including the mass
media. National legislations should comprise provisions guaranteeing
this protection.”
Recommendation
no. R (89) 14 on “The ethical issues of HIV infection in the
health care and social settings”, adopted by the Committee of
Ministers of the Council of Europe on 24 October 1989 reads, in so
far as relevant to the present case, as follows:
B. Confidentiality
“Public health authorities are recommended to:
in relation to reporting of cases:
ensure that the reporting of AIDS cases ... is used for
epidemiological purposes only and therefore carried out in strict
compliance with appropriate confidentiality regulations and in
particular that data is transmitted on a non-identifiable basis to
avoid any possible discriminatory use of sensitive health related
data, to avoid discouraging individuals from seeking voluntary
testing,
in relation to the patient-health care worker
relationship:
strongly support respect for confidentiality, if
necessary by introducing specific policies and by promoting
educational programs for health care workers to clarify
confidentiality issues in relation to HIV infection.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained that the State had failed to secure her family's
right to respect for their private life as a result of the derisory
sum of non-pecuniary damages awarded to her late husband, even though
the domestic courts had found that a serious violation of his privacy
had been committed by the newspaper Lietuvos Rytas. She also
argued that the national legislation did not provide an effective
remedy from the point of view of Article 8 of the Convention as it
limited the maximum amount of non-pecuniary damages for a so-called
“unintentional” breach of privacy by the mass media. The
applicant relied on Articles 1, 8 and 13 of the Convention.
From the outset the Court notes that the applicant's
complaint cannot be dealt with under Article 1 of the Convention,
which is a framework provision that cannot be breached on its own
(see Streletz, Kessler and Krenz v. Germany [GC],
nos. 34044/96, 35532/97 and 44801/98, § 112, ECHR
2001 II). Moreover, in the Court's view, the complaint under
Article 13 as to the absence of an effective domestic remedy is
subsidiary to the complaint under Article 8 of the Convention that
the State did not ensure respect for the private life of the
applicant's family. Therefore the Court finds it appropriate to
analyse the applicant's complaints solely under Article 8 of the
Convention, which reads in so far as relevant 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 protection of the rights and freedoms of others.”
A. Admissibility
The
Government maintained that the application in the present case had
not been lodged by the alleged victim of the Convention violation,
namely the applicant's husband, who had died on 15 April 2002
before the final decision of 24 April 2002 of the Supreme Court.
The Government argued that the widow did not have the requisite
standing under Article 34 of the Convention and therefore the
application must be rejected as being incompatible ratione
personae pursuant to Article 35 §§ 3 and 4 of the
Convention.
The
Government also contended that the husband could not have claimed to
be a victim of the violation of Article 8 of the Convention as the
domestic courts had clearly established the violation of his rights
and awarded adequate compensation. Alternatively the Government
maintained that the application was manifestly ill-founded.
The
applicant submitted that she had been directly affected by the
failure of the State to protect her family's private life to the same
or comparable extent as her late husband. To substantiate her
argument, she relied on the reasoning on Vilnius City Third District
Court, upheld by the Supreme Court, that the impugned newspaper
article had had a negative impact on her family life and her spouse's
reputation, as well having restricted the family's opportunities to
interact with others (paragraph 8 above). Due to the infringement of
their rights, the whole family had suffered severe moral and
psychological trauma and, among many detrimental consequences, had
had to move from their village.
As
to the Government's argument that the compensation awarded by the
domestic courts had been adequate and that the State had fulfilled
its positive obligation under Article 8 of the Convention, the
applicant submitted that the statutory limit on compensation for
non-pecuniary damage was the very reason for the violation of the
State's positive obligation and, therefore, there were no grounds to
find the application inadmissible.
The
Court observes that in the present case Laimutis Armonas died on
15 April 2002 and that his widow lodged the application with the
Court on 2 October 2002.
The
Court recalls that, in certain circumstances, it has struck out of
its list cases where it has taken the view that the nature of the
complaint did not allow it to be transferred to a relative because it
was so closely linked to the person of the deceased that the heirs
could not claim to have a sufficient interest to justify the
continuation of the examination of the application (see X v.
France, judgment of 31 March 1992, Series A no. 234 C,
p. 11, § 26). However, in the present case the Court
considers that the close relatives of Laimutis Armonas, in particular
his spouse and their minor child, have an interest of their own to
ensure that his right to privacy is respected even if he died before
the final domestic decision, as any statement violating this right
not only affected the deceased's reputation but also that of his
family (see, mutatis mutandis, Nölkenbockhoff v.
Germany, decision of
12 December 1984, D.R. 40, p. 187,
§ 4). The Court particularly notes the conclusion of the
Vilnius City Third District Court that the article in question
restricted the family's opportunities to communicate with others
(paragraph 8 above). Moreover, the family had had to leave their
village because of the adverse effects of the newspaper article on
their relations with their neighbours (paragraph 26 above).
Consequently, the Court is of the opinion that the link between the
publication and the deceased is not exclusive and it cannot be
claimed that the article had no bearing at all on the person of the
applicant (see, mutatis mutandis, Funke v. France,
judgment of 25 February 1993, Series A no. 256 A,
p. 25). In these circumstances the Court finds that the
applicant has standing to bring the present proceedings in her
husband's stead.
The
Court notes the Government's argument that the husband could not have
claimed to be a victim of a violation of Article 8 of the Convention
as the domestic courts had clearly established a violation of his
right to respect for private life and had awarded appropriate
compensation. However, the Court emphasises that a decision or
measure favourable to an applicant is not in principle sufficient to
deprive him or her of the status of a “victim” unless the
national authorities have acknowledged, either expressly or in
substance, and then afforded redress for, the breach of the
Convention (see Amuur v. France, judgment of 25 June 1996,
Reports of Judgments and Decisions 1996 III, § 36).
The Court recognises that the domestic courts determined the
violation of the husband's right to private and family life. However,
the Court finds that the question of victim status as regards the
redress for this violation is inextricably linked to the merits of
the complaint. Therefore, it considers that both questions should be
joined and examined together. The Court also observes that the
applicant's complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It further notes
that the complaint is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The applicant's arguments
Under Article 8 of the Convention, the applicant complained that the
Republic of Lithuania had failed to fulfil its positive obligation to
secure respect for her family's private life. Article 54 § 1 of
the Law on the Provision of Information to the Public was inadequate
from the point of view of Article 8 of the Convention, as it limited
the amount of non-pecuniary damages to LTL 10,000 for an
unintentional breach of privacy. Taking into account the financial
strength of the newspaper, the existence of such a low limit was
conducive towards the violation of her husband's rights, as it was
aware that under no circumstances would it be required to pay large
sums in compensation for breaches of this kind. The applicant
concluded that this statutory limit could not be deemed a necessary
and proportionate means to achieve any of the legitimate aims
enumerated in Article 8 § 2 of the Convention.
2. The Government's arguments
The
Government noted that Article 8 does not necessarily require the
State to fulfil its positive obligation to secure respect for the
private life of a person by the provision of unlimited compensation
for non-pecuniary damage. The State enjoys a wide margin of
appreciation in determining the measures required for the better
implementation of that obligation, as long as the limits on such
compensation reasonably correspond to the social importance of the
protected values and certain financial standards based on the
economic situation of the country. In the Government's view, when
seeking a fair balance between the general interest of the country
and the interests of the individual, setting a maximum amount of
compensation for non-pecuniary damage within a certain period of a
State's life should be acceptable.
The
Government also noted that the new Civil Code which came into force
on 1 July 2001 removed the impugned limitation on non-pecuniary
damage. Nevertheless, the domestic jurisprudence indicates that
current awards rarely exceed the previous maximum of LTL 10,000.
According to the Government, in the present case the courts have
recognised that there was no public interest in the publication of
information about the husband's private life, thereby acknowledging
the unlawfulness of the newspaper's actions. Having regard to the
examination of all the criteria applicable in similar cases as well
as all the relevant circumstances, the courts, and the Supreme Court
in particular, had granted the husband a fair sum in compensation.
3. The Court's assessment
(a) Applicable principles
The
Court has previously held that the notion of “private life”
within the meaning of Article 8 of the Convention is a broad concept
which includes, inter alia, the right to establish and develop
relationships with other human beings (see Niemietz v.
Germany, judgment of 16 December 1992, Series A
no. 251 B, p. 33, § 29). It encompasses elements such
as sexual life (see, for example, Dudgeon v. the United
Kingdom, judgment of 22 October 1981, Series A no. 45,
pp. 18-19, § 41) and, undoubtedly, personal information
relating to a patient (see I. v. Finland, no. 20511/03, § 35,
17 July 2008).
The
Court recalls that, although the object of Article 8 is essentially
that of protecting the individual against arbitrary interference by
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 the
effective respect for private or family life. These obligations may
involve the adoption of measures designed to secure the right even in
the sphere of the relations between individuals
(see Evans v.
the United Kingdom [GC], no. 6339/05, § 75, ECHR
2007 ...).
The
Court has previously held that whether the case is analysed in terms
of a positive duty on the State to take reasonable and appropriate
measures to secure the applicant's rights under paragraph 1 of
Article 8, or in terms of an interference by a public authority to be
justified in accordance with paragraph 2, the applicable principles
are broadly 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 the community as a whole (see Von Hannover v.
Germany, no. 59320/00, § 57, ECHR 2004 VI).
Furthermore, in striking this balance, the aims mentioned in the
second paragraph of Article 8 may be of a certain relevance (see Rees
v. the United Kingdom, judgment of 17 October 1986, Series A
no. 106, § 37).
The Court reiterates that, as regards such positive
obligations, the notion of “respect” is not clear-cut. In
view of the diversity of the practices followed and the situations
obtaining in the Contracting States, the notion's requirements will
vary considerably from case to case. Accordingly, this is an area in
which the Contracting Parties enjoy a wide margin of appreciation in
determining the steps to be taken to ensure compliance with the
Convention, account being taken of the needs and resources of the
community and of individuals (see Johnston and Others v. Ireland,
judgment of 18 December 1986, Series A no. 112, § 55).
The Court nonetheless recalls that Article 8, like any other
provision of the Convention or its Protocols, must be interpreted in
such a way as to guarantee not rights that are theoretical or
illusory but rights that are practical and effective
(see
Shevanova v. Latvia, no. 58822/00, § 69, 15
June 2006).
The
protection of private life has to be balanced, among other things,
against the freedom of expression guaranteed by Article 10 of the
Convention. In that context the Court emphasises the duty of the
press to impart information and ideas on matters of public interest
(see, among many authorities, Observer and Guardian v. the United
Kingdom, judgment of 26 November 1991, Series A no. 216, pp.
29-30, § 59). However, the Court notes that a
fundamental distinction needs to be made between reporting facts –
even if controversial – capable of contributing to a debate in
a democratic society and making tawdry allegations about an
individual's private life (see, mutatis mutandis, Von
Hannover v. Germany, cited above, § 63). As to
respect for the individual's private life, the Court reiterates the
fundamental importance of its protection in order to ensure the
development of every human being's personality. That protection
extends beyond the private family circle to include a social
dimension (ibid., § 69).
More
specifically, the Court has previously held that the protection of
personal data, not least medical data, is of fundamental importance
to a person's enjoyment of his or her right to respect for private
and family life as guaranteed by Article 8 of the Convention.
Respecting the confidentiality of health data is a vital principle in
the legal systems of all the Contracting Parties to the
Convention. The above considerations are especially valid as
regards the protection of the confidentiality of a person's HIV
status (cf. Council of Europe materials, paragraphs 20-21 above). The
disclosure of such data may dramatically affect his or her private
and family life, as well as the individual's social and employment
situation, by exposing that person to opprobrium and the risk of
ostracism (see Z v. Finland, judgment of 25 February 1997,
Reports 1997 I, §§ 95-96).
It
is in the light of the above considerations that the Court has now to
examine whether the State has fulfilled its positive obligation to
secure respect for the applicant's right to respect for private and
family life.
(b) Application of these general
principles to the present case
The
Court notes that the publication of the article about the state of
health of the applicant's husband, namely that he was HIV-positive,
as well as the allegation that he was the father of two children by
another woman who was also suffering from AIDS (see paragraph 6
above), were of a purely private nature and therefore fell within the
protection of Article 8 (see, for example, Dudgeon v. the
United Kingdom, cited above, § 41). The Court takes
particular note of the fact that the family lived not in a city but
in a village, which increased the impact of the publication on the
possibility that the husband's illness would be known by his
neighbours and his immediate family, thereby causing public
humiliation and exclusion from village social life. In this respect
the Court sees no reason to depart from the conclusion of the
national courts, which acknowledged that there had been interference
with the family's right to privacy.
The
Court will next examine whether there existed a public interest
justifying the publication of this kind of information about the
applicant's husband. However, the Court sees no such legitimate
interest and agrees with the finding of the Vilnius City Third
District Court, which held that making public information about the
husband's state of health, indicating his full name, surname and
residence, did not correspond to any legitimate public interest
(paragraph 8 above). In the Court's view, the publication of the
article in question, the sole purpose of which was apparently to
satisfy the prurient curiosity of a particular readership, cannot be
deemed to contribute to any debate of general interest to society
(see, among many authorities, Prisma Presse v. France (dec.),
nos. 66910/01 and 71612/01,
1 July 2003). Consequently, given
that the balance lay in favour of the individual's right to privacy,
the State had an obligation to ensure that the husband was able
effectively to enforce that right against the press.
Furthermore,
the Court attaches particular significance to the fact that,
according to the newspaper, the information about the husband's
illness had been confirmed by employees of the AIDS centre. It cannot
be denied that publication of such information in the biggest
national daily newspaper could have a negative impact on the
willingness of others to take voluntary tests for HIV (cf. paragraph
21 above). In this context, it is of special importance that domestic
law provides appropriate safeguards to discourage any such
disclosures and the further publication of personal data.
The
Court takes into account that the national law at the material time
did contain norms protecting the confidentiality of information about
the state of health of a person. It has regard to the existence of
the judicial guidelines to be followed if the right to privacy of a
person has been breached (see paragraphs 12-19 above). The Court also
notes that the domestic courts indeed awarded the husband
compensation for non-pecuniary damage. However the principal issue is
whether the award of LTL 10,000 was proportionate to the damage
he sustained and whether the State, in adopting Article 54 § 1
of the Law on the Provision of Information to the Public, which
limited the amount of such compensation payable by the mass media,
fulfilled its positive obligation under Article 8 of the Convention.
The
Court agrees with the Government that a State enjoys a certain margin
of appreciation in deciding what “respect” for private
life requires in particular circumstances (cf. Stubbings and
Others v. the United Kingdom, 22 October 1996, §§ 62-63,
Reports 1996 IV; X and Y v. the Netherlands, 26
March 1985, § 24, Series A no. 91). The Court
also acknowledges that certain financial standards based on the
economic situation of the State are to be taken into account when
determining the measures required for the better implementation of
the foregoing obligation. The Court likewise takes note of the fact
that the Member States of the Council of Europe may regulate
questions of compensation for non-pecuniary damage differently, as
well as the fact that the imposition of financial limits is not in
itself incompatible with a State's positive obligation under Article
8 of the Convention. However, such limits must not be such as to
deprive the individual of his or her privacy and thereby empty the
right of its effective content.
The
Court recognises that the imposition of heavy sanctions on press
transgressions could have a chilling effect on the exercise of the
essential guarantees of journalistic freedom of expression under
Article 10 of the Convention (see, among many authorities, Cumpǎnǎ
and Mazǎre v. Romania [GC], no. 33348/96, §§
113-114, ECHR 2004 XI). However, in a case of an outrageous
abuse of press freedom, as in the present application, the Court
finds that the severe legislative limitations on judicial discretion
in redressing the damage suffered by the victim and sufficiently
deterring the recurrence of such abuses, failed to provide the
applicant with the protection that could have legitimately been
expected under Article 8 of the Convention. This view is confirmed by
the fact that the impugned ceiling on judicial awards of compensation
contained in Article 54 § 1 of the Law on the Provision of
Information to the Public was repealed by the new Civil Code soon
after the events in the present case (see paragraph 33 above).
In
the light of the foregoing considerations, the Court rejects the
Government's preliminary objection as to the applicant's victim
status and concludes that the State failed to secure the applicant's
right to respect for her family's private life.
There has therefore been a violation of Article 8 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed LTL 90,000 (approximately EUR 26,065) in
respect of non-pecuniary damage.
The
Government submitted that this claim was unjustified and excessive.
The
Court considers that the applicant has suffered non-pecuniary damage
which is not sufficiently compensated by the finding of a violation
of Article 8 of the Convention. Making its assessment on an equitable
basis, as required by Article 41 of the Convention, the Court
awards the applicant the sum of EUR 6,500 under this head.
B. Costs and expenses
The
applicant also claimed LTL 2,000 (approximately EUR 580) for the
costs and expenses incurred before the domestic courts and before the
Strasbourg Court.
The
Government contested this claim as unsubstantiated and unreasonable.
However,
the Court notes that this sum is covered by the legal aid which the
applicant has already received under its legal aid scheme (EUR 850).
Consequently, the Court makes no further award under this head.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
Joins to the merits the Government's objection
as to the applicant's victim status and rejects it unanimously;
2. Declares unanimously the application admissible;
Holds by six votes to one that there has been a
violation of Article 8 of the Convention;
Holds by four votes to three
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 6,500
(six thousand five hundred euros) in respect of non-pecuniary damage
plus any tax that may be chargeable, this sum being converted into
the national currency of that State at the rate applicable on the
date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses unanimously the remainder of the
applicant's claims for just satisfaction.
Done in English, and notified in writing on 25 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinions of Judges
Zagrebelsky, Popović and Tsotsoria are annexed to this judgment.
S.D.
F.T.
DISSENTING OPINION OF JUDGE ZAGREBELSKY
(Translation)
I do
not agree with the majority of the Chamber that there has been a
violation of Article 8 of the Convention in the present case for the
following reasons.
There
is no doubt that Article 8 of the Convention is applicable in the
case, since the publication concerned caused considerable damage to
the applicant's reputation. The Court's case-law on the matter is
clear. The Court has held that a person's right to protection of his
or her reputation is encompassed by Article 8 as part of the right to
respect for private life (see, recently, Pfeifer v. Austria,
judgment of 15 November 2007). Article 8 may require the
adoption of positive measures designed to secure respect for private
life even in the sphere of the relations of individuals between
themselves (see Von Hannover v. Germany, no. 59320/00, §
57, ECHR 2004-VI, and Stubbings and Others v. the United Kingdom,
judgment of 22 October 1996, Reports of Judgments and
Decisions 1996-IV, p. 1505, §§ 61 and 62).
In
the context of a press article, freedom of expression enters into
play. Here too the Court has clearly stated on numerous occasions the
principles to be taken into account, which may be summarised as
follows. The press plays an eminent role in a democratic society.
Although it must not overstep certain bounds, regarding in particular
the 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. Article 10 protects not only the
substance of the ideas and information expressed, but also the form
in which they are conveyed.
From
Article 8 is derived the right to protection of one's reputation,
even outside the sphere of private life, but the requirements of such
protection must be weighed against the interest in free discussion of
matters of public interest. The Court must check that the domestic
authorities have maintained a fair balance between protection of
freedom of expression and protection of the reputation of those
against whom allegations have been made.
There
are different ways of securing respect for private life, and the
nature of the State's obligation depends on the aspect of private
life concerned. It follows that the choice of measures calculated to
secure compliance with that positive obligation falls within the
Contracting States' margin of appreciation.
The
adjective “necessary”, within the meaning of Article 10 §
2, implies the existence of a “pressing social need”. The
Contracting States have a certain margin of appreciation in assessing
whether such a need exists, but
that margin goes hand in hand with European supervision. In
exercising its supervisory function the Court's task is not to take
the place of the competent domestic courts but rather to review under
Article 10 the decisions they have taken by virtue of their power of
appreciation. The Court must determine whether the reasons adduced by
the national authorities to justify the interference were “relevant
and sufficient” and whether the measure complained of was
“proportionate to the legitimate aims pursued”. The right
of journalists to impart information about matters of public interest
is protected, provided that they are acting in good faith, on the
basis of exact facts, in order to provide “accurate and
reliable” information in accordance with the ethics of
journalism. The second paragraph of Article 10 emphasises that
exercise of the freedom of expression carries with it duties and
responsibilities, and those duties and responsibilities may be of
some importance where there is a risk of damage to the reputation of
a person referred to by name or impairment of the “rights of
others”.
The
nature and severity of the penalties imposed on those whose comments
give offence are also elements to be taken into consideration in
assessing the proportionality of an interference. Although
Contracting States have the power, and indeed the duty, by virtue of
their positive obligations under Article 8 of the Convention, to
regulate the exercise of freedom of expression in such a way as to
ensure the appropriate protection of the reputation of individuals by
law, they must in so doing avoid taking measures likely to dissuade
the media from playing their role.
The
civil nature of measures taken against journalists or publishers does
not exclude assessment of their “proportionality”, given
the condition that they must not have the effect of dissuading the
press from taking part in the discussion of matters of public
interest. In that connection, “perceptions as to what would be
an appropriate response by society to speech which does not or is not
claimed to enjoy the protection of Article 10 of the Convention may
differ greatly from one Contracting State to another. The competent
national authorities are better placed than the European Court to
assess the matter and should therefore enjoy a wide margin of
appreciation in this respect” (see Tolstoy Miloslavsky v.
the United Kingdom, judgment of 13 July 1995, § 48).
Excessively
large sums in damages and the lack of appropriate and effective
safeguards against disproportionate awards may lead the Court to find
a violation of Article 10 (see Tolstoy Miloslavsky v. the United
Kingdom, cited above, §§ 50 and 51, and Steel and
Morris v. the United Kingdom, judgment of 15 February 2005, §
96).
It
was accepted by the domestic courts that there had been abuse of the
freedom of expression and damage to the reputation of the applicant's
husband in the present case. It is not for the Court to take those
courts' place in determining whether or not the wrong done was
intentional within the meaning of domestic law. What is important is
the finding that the first condition for protection of the husband's
right to defend his reputation was met by the domestic courts. Those
courts also upheld his right to damages, equivalent to 2,896 euros,
which was the maximum sum they could have awarded under the
legislation in force at the time, which indeed fixed a ceiling with
the evident intention of preventing exorbitant awards in respect of
non-pecuniary damage.
To my
mind, the mere fact that there was a ceiling should not cause any
problem; on the contrary, I would say, the aim was to protect freedom
of expression from possible interference stemming from judicial
decisions relating to a question – non-pecuniary damage –
which by its nature leaves wide latitude to judges. Naturally, the
ceiling must be reasonable, but from that point of view what is
decisive is the maximum figure concerned, and above all the result of
the ceiling's application.
On
the one hand, the exclusion of disproportionate awards of damages is
prompted by the need to avoid interfering with freedom of expression.
On the other hand, an order to pay an insignificant level of
compensation might constitute failure to protect the victim's right
to respect for his or her private life (although it may sometimes be
sufficient simply to recognise the fact that there has been an
unjustified attack on the reputation of the person concerned). Except
in extreme cases at one end of the spectrum or the other, I find it
difficult to accept that the Court should substitute its assessment
for that of the domestic courts and, through its judgment, intervene
in substance to correct their decisions.
In
the present case the amount of 2,896 euros – awarded as
compensation for non-pecuniary damage – does not seem so
disproportionate as to enable the Court to find that the applicant's
right was not protected at national level. Unlike the practice in
Article 10 cases, in a case concerning Article 8 consideration of the
economic power of the opponent does not seem relevant, since it is
not a question of punitive damages but of assessing the damage
actually suffered by the applicant.
In a
recent case concerning a violation of Article 8 of the Convention, in
which the domestic courts had given priority to freedom of expression
over protection of the applicant's right to defend his reputation
(and in which he therefore had lost his case and received nothing in
damages) the Court, in applying Article 41 of the Convention, awarded
the applicant 5,000 euros (see Pfeifer v. Austria, cited
above). While I accept that each case is different, I think that at
least that case may serve to provide an approximate calibration, and
lead the Court to the conclusion that the amount awarded by the
Lithuanian courts, pursuant to the legislation in force, can
reasonably be taken to cover the non-pecuniary damage suffered by the
applicant's family and that, in any event, the domestic decisions
gave the family appropriate protection.
PARTLY dissenting opinion of Judges Popović and
Tsotsoria
We
voted against the amount awarded to the applicant in just
satisfaction, because we consider it to be excessive in respect of
the violation found. We believe that, in the light of the
balancing test between the fundamental
rights protected under Articles 8 and 10 of the European Convention
on Human Rights, rightly referred to in the Judgment, the
applicant should be awarded a lesser sum.
