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SECOND
SECTION
CASE OF KARAKÓ v. HUNGARY
(Application
no. 39311/05)
JUDGMENT
STRASBOURG
28
April 2009
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 Karakó v.
Hungary,
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,
András
Sajó,
Işıl
Karakaş,
judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 17 March and 7 April 2009,
Delivers
the following judgment, which was adopted on that last-mentioned
date:
PROCEDURE
- The
case originated in an application (no. 39311/05) against the Republic
of Hungary lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Hungarian national, Mr László
Karakó (“the applicant”), on 26 October 2005.
- The
applicant was represented by Mr L. Kovátsits, a lawyer
practising in Budapest. The Hungarian Government (“the
Government”) were represented by Mr L. Höltzl, Agent,
Ministry of Justice and Law Enforcement.
- The
applicant alleged in particular that the Hungarian authorities'
failure to pursue his charges of libel against his political opponent
amounted to a breach of his rights under Article 8 of the Convention.
- On
5 May 2008 the President of the Second Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in Gávavencsellő.
- The
applicant is a Member of Parliament and delegate of the political
party Fidesz – the Hungarian Civic Union (the “Fidesz”).
During the parliamentary elections of 2002, he was a candidate in one
of the electoral districts of Szabolcs-Szatmár-Bereg County.
On 19 April 2002, prior to the second ballot round, a flyer was
distributed in the applicant's electoral district, signed by L.H.,
chairman of the Szabolcs-Szatmár-Bereg County Regional General
Assembly. The flyer read as follows:
“Dr. László Karakó, in his
capacity as a member of the Fidesz... in the Regional General
Assembly, regularly voted against the interests of the county.
Moreover, in the debate concerning the route of the M3 highway, he
did not support the version favourable to the county, with which −
aside from the county − he probably harmed his own electoral
district the most.”
- On
15 May 2002 the applicant filed a criminal complaint against L.H.
with the Nyíregyháza District Court, accusing him of
libel. Finding that the impugned act fell within the competence of
public prosecution, the District Court transferred the case to the
Nyíregyháza District Public Prosecutor's Office in
March 2004.
- The
Public Prosecutor's Office ordered the continuation of the criminal
proceedings in April 2004. On 3 May 2004 the Public Prosecutor's
Office terminated the investigation, finding that there had been no
crime committed within the realm of public prosecution. The applicant
stated that this decision was only served on him on 1 December 2004.
He lodged a complaint against this decision which was dismissed by
the Szabolcs-Szatmár-Bereg County Regional Public Prosecutor's
Office on 22 December 2004. The Prosecutor's Office was of the
view that the impugned act had occurred during the electoral campaign
and, as a candidate, the applicant could not have been considered a
public official. Therefore, the act did not concern a matter of
public prosecution. The applicant submitted an application seeking a
review of this decision to the Attorney General's Office. It
dismissed his application on 28 February 2005.
- On
29 January 2005 the applicant, acting as a private prosecutor,
submitted an indictment against L.H. to the Nyíregyháza
District Court, accusing the latter of having committed libel against
him as a public official during official proceedings.
- On
2 May 2005 the District Court dismissed the applicant's indictment.
It found that the impugned statement was a value judgment, with
regard to which the limits of acceptable criticism were wider for a
politician – who must display a greater degree of tolerance. No
appeal lay against this decision.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the authorities failed to protect his
rights under Article 8 of the Convention as they did not pursue
criminal libel proceedings against a political opponent who had
allegedly defamed him. Article 8, insofar as relevant, provides 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 ,... or for the protection of
the rights and freedoms of others.”
A. Admissibility
- The
Government submitted that the applicant should have brought a civil
action against L.H. seeking damages, which was in their opinion an
effective remedy to exhaust in the circumstances. The applicant
contested this view.
- The Court observes that the applicant pressed criminal
charges against L.H., accusing him of libel. When the prosecution
authorities decided not to pursue the case, he embarked on a private
prosecution. In this respect, the Court recalls that, where several
remedies are available, the applicant is not required to pursue more
than one (Granger v. the United Kingdom (no. decision
of 9 May 1988) and it is normally that individual's choice as to
which (see mutatis mutandis, Hilal v. the United Kingdom,
no. 45276/99, decision of 8 February 2000; Airey v. Ireland, 9
October 1979, § 23, Series A no. 32). Consequently, the Court
considers that the present applicant cannot be required to avail
himself of an additional legal avenue in the form of a civil action
(see mutatis mutandis Barta v. Hungary, no. 26137/04, §
47, 10 April 2007). It is satisfied that the applicant has thus
exhausted domestic remedies. Consequently, the Government's objection
must be dismissed and the complaint declared admissible.
B. Merits
1. The parties' arguments
- The
Government submitted that it was primarily for the national
authorities to assess whether or not the impugned conduct amounted to
a criminal act. They recalled the principle clearly set out in the
Court's case-law according to which the classification of a statement
as a fact or as a value judgment is a matter which, in the first
place, falls within the margin of appreciation of the national
authorities, in particular the domestic courts.
- The
applicant argued that neither the prosecution authorities nor the
District Court had carried out a thorough examination of his criminal
complaint. As a result, his right to reputation, which the Hungarian
authorities were under an obligation to protect pursuant to Article 8
of the Convention, had been violated. He stressed that the impugned
statement had targeted him as an official rather than a politician –
a consideration ignored by the domestic authorities. In his view, the
ruling of the domestic court was also incompatible with the second
paragraph of Article 10 of the Convention, which provides insofar as
relevant as follows:
"1. Everyone
has the right to freedom of expression. ...
2. The exercise of these freedoms, since it carries with
it duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and
are necessary in a democratic society, in the interests of ... the
protection of the reputation or rights of others ..."
2. The Court's assessment
- The
Court is satisfied that the purported conflict between Articles 8 and
10 of the Convention, as argued by the applicant, in matters of
protection of reputation, is one of appearance only. To hold
otherwise would result in a situation where – if both
reputation and freedom of expression are at stake – the outcome
of the Court's scrutiny would be determined by whichever of the
supposedly competing provisions was invoked by an applicant.
- In
the instant case, the applicant submitted that, by refusing to
prosecute his opponent for allegedly ruining his reputation in the
voters' eyes, the Hungarian authorities had failed to protect his
right to private life as defined by Article 8. For the Court, this
claim implies that the right to reputation is an independent right
protected by Article 8 of the Convention which the State has a
positive obligation to protect.
- At
the outset, the Court emphasises the importance of a prudent approach
to the State's positive obligations to protect private life in
general and of the need to recognise the diversity of possible
methods to secure its respect. In this field, the nature of the
State's obligation depends on the aspect of private life concerned,
and the choice of measures designed to secure compliance with that
obligation falls within the Contracting States' margin of
appreciation. The Court considers, as a minimum requirement, that an
effective legal system must be in place and operating for the
protection of the rights falling within the notion of “private
life”, and it is satisfied that such a system was indeed
available to the applicant in the present case.
- In
regard to cases in which a violation of the rights guaranteed in
Article 8 is asserted and the alleged interference with those rights
originates in an expression, the Court points out that the protection
granted by the State should be understood as one taking into
consideration its obligations under Article 10 of the Convention. It
is the latter provision which has been specifically designed by the
drafters of the Convention to provide guidance concerning freedom of
speech – also a core issue in the present application.
- In
addressing this problem, the Court reiterates that “private
life” includes personal identity (Von Hannover v. Germany,
no. 59320/00, § 50, ECHR 2004–VI). The Court further
observes that the Convention, as interpreted in the Von Hannover
judgment regarding the individual's image, extends the protection of
private life to the protection of personal integrity. This approach
itself results from a broad interpretation of Article 8 to encompass
notions of personal integrity and the free development of the
personality.
- Concerning
the question whether or not the notion of “private life”
should be extended to include reputation as well, the Court notes
that the references to personal integrity in the Von Hannover
judgment reflect a clear distinction, ubiquitous in the private and
constitutional law of several Member States, between personal
integrity and reputation, the two being protected in different legal
ways. In the legislation of several Member States, reputation has
traditionally been protected by the law of defamation as a matter
related primarily to financial interests or social status.
- For
the Court, personal integrity rights falling within the ambit of
Article 8 are unrelated to the external evaluation of the individual,
whereas in matters of reputation, that evaluation is decisive: one
may lose the esteem of society – perhaps rightly so – but
not one's integrity, which remains inalienable. In the Court's
case-law, reputation has only been deemed to be an independent right
sporadically (see Petrina v. Romania, no. 78060/01,
14 October 2008, and Armonienė v. Lithuania,
no. 36919/02, 25 November 2008) and mostly when the factual
allegations were of such a seriously offensive nature that their
publication had an inevitable direct effect on the applicant's
private life. However, in the instant case, the applicant has not
shown that the publication in question, allegedly affecting his
reputation, constituted such a serious interference with his private
life as to undermine his personal integrity. The Court therefore
concludes that it was the applicant's reputation alone which was at
stake in the context of an expression made to his alleged detriment.
- The
Court reiterates that paragraph 2 of Article 10 recognises that
freedom of speech may be restricted in order to protect reputation
(see paragraph 16 above). In other words, the Convention itself
announces that restrictions on freedom of expression are to be
determined within the framework of Article 10 enshrining freedom of
speech.
- The
Court is therefore satisfied that the inherent logic of Article 10,
that is to say, the special rule contained in its second paragraph,
precludes the possibility of conflict with Article 8. In the Court's
view, the expression “the rights of others” in the latter
provision encompasses the right to personal integrity and serves as a
ground for limitation of freedom of expression in so far as the
interference designed to protect private life is proportionate.
- It
follows that, notwithstanding the fact that the applicant claims a
violation of Article 8 of the Convention, the Court has to determine
whether the principles inherent to Article 10 were properly applied
by the Hungarian authorities.
- The
Court observes that the impugned statement was found to be a value
judgment and, as such, a protected expression under Hungarian law. In
reaching this conclusion, the authorities took into account that the
applicant was a politician, active in public life, and that the
statement was made during an election campaign in which he was a
candidate, and constituted a negative opinion regarding the
applicant's public activities. On these grounds, they found that it
was constitutionally protected. The Court is satisfied that this
decision was in conformity with Convention standards (for a summary
of the relevant case-law, see Feldek v. Slovakia, no.
29032/95, §§ 72-74, ECHR 2001–VIII; Scharsach and
News Verlagsgesellschaft v. Austria, no. 39394/98, § 30,
ECHR 2003–XI).
- The
above considerations enable the Court to find that the applicant's
allegation that his reputation as a politician has been harmed is not
a sustainable claim regarding the protection of his right to respect
for personal integrity under Article 8 of the Convention. A
limitation on freedom of expression for the sake of the applicant's
reputation in the circumstances of the present case would have been
disproportionate under Article 10 of the Convention.
- Consequently,
the Court concludes that there has been no violation of Article 8 of
the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Relying
on Article 6 of the Convention, the applicant complained of
unfairness and the excessive length of the proceedings in which he
had sought the prosecution of his opponent. The Court reiterates that
Article 6 does not grant a right or apply to proceedings with a
view to having third persons convicted of a criminal offence. This
complaint is therefore incompatible ratione materiae with the
provisions of the Convention within the meaning of Article 35 §
3 and must be rejected, pursuant to Article 35
§ 4 of the
Convention.
- The
applicant also complained under Article 10 of the Convention about
the outcome of the proceedings. The Court observes in this connection
that the impugned statement was not made by the applicant but by his
political opponent. It follows that – the applicant's own
freedom of speech not having been at stake – the facts of the
case do not give rise to any issue under Article 10 from the
applicant's perspective. This complaint is therefore manifestly
ill-founded within the meaning of Article 35 § 3 and must be
rejected, pursuant to Article 35 § 4 of the Convention.
- Lastly,
the applicant complained under Article 13 of the Convention that the
procedures before the Hungarian authorities did not provide him with
an effective remedy concerning the alleged infringement of his rights
under Article 8. However, the Court notes that the applicant's
complaint was fully examined by the prosecuting authorities and a
court. Consequently, the applicant had adequate domestic remedies at
his disposal and his complaint under Article 13 must be rejected as
being manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 8 of the
Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 8 of the Convention.
Done in English, and notified in writing on 28 April 2009, 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 partly concurring opinion of
Judge Jočienė
is annexed to this judgment.
F.T.
S.D.
PARTLY CONCURRING OPINION OF JUDGE JOCIENE
- I
agree with the majority's finding in this case that there has been no
violation of Article 8 of the Convention and I voted to that effect.
I also agree with the majority that paragraph 2 of Article 10 of the
Convention refers to the reputation aspect and that freedom of
expression and the right to protection of privacy, including
reputation, should be carefully balanced. Nevertheless, I think that
protection of reputation, as an aspect, indistinguishable from a
person's privacy (personal integrity) should be concentrated under
and protected by Article 8 of the Convention. Paragraph 2 of Article
10 should be applicable only in cases where the balancing test must
be carried out in order to establish the necessity and
proportionality of an interference with freedom of expression.
- With
regard to the arguments used in the analysis, I note that in
paragraph 21 of the judgment, the majority, referring to the case of
Von Hannover v. Germany (no. 59320/00, § 50, ECHR
2004-VI), observed that the Convention, as interpreted in the Von
Hannover judgment regarding an individual's image, extends the
protection of a person's private life to the protection of personal
integrity. However, the Court said at § 50 of that
judgment that the concept of private life “extends to aspects
relating to personal identity, such as a person's name (see Burghartz
v. Switzerland, judgment of 22 February 1994, Series A no. 280-B,
p. 28, § 24), or a person's picture (see Schüssel
v. Austria (dec.), no. 42409/98, 21 February 2002)”.
This means, in my opinion, that the Court interpreted a person's
picture as part of a person's private life relating to his personal
identity (and not personal integrity). Furthermore, the Court held in
the same § 50 of that judgment that “private life ...
includes a person's physical and psychological integrity [...].”
- In
the case of Pfeifer v. Austria (no. 12556/03, §§
33-34), with regard to the applicability of Article 8, the Court also
reiterated that “private life” extends to the
individual's personal identity, such as a person's name or
picture, and, furthermore, includes a person's physical and
psychological integrity. In § 34 of the Pfeifer judgment,
the Court found that the publication of a person's photograph
fell within the scope of his or her private life even where the
person concerned was a public figure (see Schüssel v. Austria
(dec.), no. 42409/98, 21 February 2002, and Von Hannover,
cited above, § 53). Therefore, in my opinion, and I conclude on
this point, this protection of an individual's image or photograph
extended the guarantee of respect for private life to the protection
of personal identity, but not personal integrity.
- With
regard to paragraphs 22 and 23 of the present judgment and especially
the question (see paragraph 22), as to whether the notion of “private
life” should be extended to include reputation as well, I think
that such a question is unnecessary, because the jurisprudence of the
Court has been clearly developed on this point. In the said Pfeifer
v. Austria case the Court stated: “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”.
In
another case, Chauvy and Others v. France (no. 64915/01, §
70, ECHR 2004-VI), concerning a complaint under Article 10, the Court
found that a person's reputation, which was affected by the
publication of a book, was protected by Article 8 as part of the
right to respect for private life and had to be balanced against the
right to freedom of expression. This approach was followed in
Abeberry v. France ((dec.), no. 58729/00, 21 September 2004)
and Leempoel & S.A. ED. Ciné Revue v. Belgium (no.
64772/01, § 67, 9 November 2006). I agree that the right to
the protection of a person's reputation and honour, as such, was left
open in Gunnarsson v. Iceland ((dec.), no. 4591/04, 20 October
2005). However, in the Pfeifer case (§ 35), the Court
came to the conclusion that a person's reputation, even if
that person is criticised in the context of a public debate, forms
part of his or her personal identity and psychological integrity
and therefore also falls within the scope of his or her “private
life”, and Article 8 therefore applies.
- The
same approach was followed in the more recent judgment of Petrina
v. Romania (no. 78060/01, judgment of 14 October 2008, §§
28-29), to which the majority make no reference, but where the Court
confirmed that a person's reputation is protected by Article 8 of the
Convention as an integral part of his or her private life.
Therefore,
I think that the question in paragraph 22 of the present judgment is
not needed for the reasons explained above. Furthermore, I cannot
agree with the majority's position in paragraph 23 that a person's
reputation has been deemed to be an independent right only
sporadically, or mostly when the factual allegations were of a
serious nature. In my opinion, it is clear from the jurisprudence of
the Court which I have cited above that a person's reputation falls
within the scope of “private life” and attracts the
protection of Article 8, not only sporadically but whenever it is
justified according to the circumstances of the concrete case.
- I
am not sure that the reference at paragraph 23 of the present
judgment to the case of Armonienė v. Lithuania (no.
36919/02, 25 November 2008) is needed, for the very simple
reason that, like the case of Biriuk v. Lithuania (no.
23373/03, 25 November 2008), that applicant was not complaining about
a loss of reputation, or any related aspect, due to the impugned
publications. Ms Armonienė complained about a breach of privacy
under Article 8 (in general), relying on the fact that the State had
failed to secure her family's right to respect for their private life
as a result of the derisory award for non-pecuniary damages 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. This was not therefore a question of reputation,
but a question of statutory ceilings which restricted the
compensation obtainable to a very limited amount.
- Lastly,
taking into account the fact that, in my opinion, the Court's
jurisprudence is not clear enough to answer the question whether
reputation, as a part of the notion of “private life” and
protected under Article 8 of the Convention (which is a clear from
our jurisprudence), is protected as a separate aspect or is included
in the protection of personal identity, distinguishable from personal
integrity (as the majority propose in paragraphs 22 and 23 above),
that matter should be left open for the time being and, in my view,
needs careful future consideration.
