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SECOND
SECTION
CASE OF VARAPNICKAITĖ-MAZYLIENĖ v. LITHUANIA
(Application
no. 20376/05)
JUDGMENT
STRASBOURG
17 January 2012
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 Varapnickaitė-MaZylienė
v. Lithuania,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Dragoljub
Popović,
Işıl Karakaş,
Guido
Raimondi,
Paulo Pinto de Albuquerque,
Helen
Keller, judges,
and Francoise Elens-Passos,
Deputy
Section Registrar,
Having
deliberated in private on 6 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20376/05)
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, Ms Jolanta Varapnickaitė-MaZylienė
(“the applicant”), on 20 May 2005.
- The
applicant was represented by Mr A. Marcinkevičius, a lawyer
practising in Vilnius. The Lithuanian Government (“the
Government”) were represented by their Agent, Ms E. Baltutytė.
3. Invoking
Article 8 of the Convention, the applicant alleged a violation
of the right to respect for her private life. On the basis of
Article 13 thereof, she also argued that she had not had an
effective remedy for the alleged violation of her right to privacy.
- On
11 May 2007 the
President of the Second Section decided to give notice of the
application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and lives in Vilnius.
- On
31 March 2001 the daily newspaper Respublika printed
an open letter from the applicant to the Children’s Rights
Ombudsman of Lithuania, G.I., complaining about the actions
undertaken by the director, N.S., of the Children’s Welfare
Service of the Vilnius City (Vilniaus miesto Vaiko teisių
apsaugos tarnyba, hereinafter “the CWS”). It appears
from the copy of the newspaper that the applicant had paid for the
letter to be published. The letter was printed on one full page of
the paper and comprised twenty-four paragraphs.
- In
the letter the applicant complained about the CWS’s actions
during her son’s custody proceedings. The applicant disclosed
her and her son’s forenames and surname, his date of birth, and
her former husband’s full name. She also described the entire
chronology of the civil litigation between her and her former husband
concerning her son’s place of residence. The applicant
described in detail what had been said during the relevant court
hearing. The article read:
“Having succumbed to psychological pressure from
his father ... from March 2000 the child was treated in Vilnius
Child Development Centre Psychiatric Unit. According to the
conclusion of the psychiatrists, which on 17 May 2000 was
provided to the CWS, ‘the boy is affected negatively by his
father’s negative attitude towards his mother’. The
doctors explained that they had treated my son four times longer than
usual so that the child would not be traumatised by his father any
longer. I could see my son and communicate with him only at the
hospital, where, with the doctors’ help, he had been at least
to a certain extent protected from the damaging influence of his
father.”
- The
applicant also quoted the report of a doctor from the children’s
rehabilitation institution “Palangos gintaras”.
The report, as cited by the applicant, read:
“[The father of the applicant’s son] did not
pay for meals, but sometimes would come to the [sanatorium’s]
canteen to eat and would eat his son’s portion ... Sometimes
the father did not allow the doctors to examine his son, arguing that
his son should rest. The father behaved despotically towards the
child, sometimes he would not permit his son to attend treatment
procedures. In bad weather, the father would take his son to the
forest to gather berries, arguing that the father’s opinion
mattered more than that of the doctor. On 17 July the father and son
got into a fight. Afterwards the father did not allow the doctors to
examine his son... The treatment prescribed did not have the expected
effect. We [the doctors] think that the reason for that is
possessiveness on the part of the father. The son needs psychiatric
care.”
- On
3 April 2001 the daily newspaper Lietuvos Aidas
published an article titled “Separation from her son causes
great distress to mother” (Atimtas sūnus –
didZiausias skausmas motinai), in which the applicant answered
questions from a journalist. In a full page article she told the
story of her estrangement from her former husband and described the
child custody issues concerning their son. The applicant divulged the
names of her son, her former husband and the CWS employees who had
been involved in the proceedings. When answering the journalist’s
question why her son had chosen to live with his father, the
applicant stated that she had been made to leave her home and had had
to rent a room somewhere else. The applicant also quoted an extract
from a report by a municipal social-care inspector:
“When I [the municipal inspector] visited the
applicant’s former husband’s home and saw how the boy
interacts with his father, huge psychological tension and hatred
towards the mother were apparent, even though, according to the
child, earlier he had loved his mother very much, because she was
good and took care of all their family. It was clear that the child,
who is eleven years old, very much needs his mother, but his father
encourages a negative attitude towards her ....”
- In
the same article the applicant also recited the aforementioned report
by the doctor from the children’s rehabilitation institution
“Palangos gintaras”. Overall, the applicant was
critical towards the CWS employees and contended that “the
“specialists” in children’s rights in Lithuania
were former seamstresses, engineers, agricultural workers, operators
of building machines and the directors of juvenile prisons”.
- The
Government submitted that the applicant had disclosed similar
information, including the forenames and surnames of her son and
former husband, on the television programme “Autodafe”,
aired in May 2001. The Government were prepared to provide the
tape of the show upon the Court’s request, although in their
view the two articles published in Respublika and Lietuvos
Aidas were fairly eloquent.
-
On 15 June 2001 the daily newspaper Lietuvos Aidas
published an article about the work of the CWS entitled “The
overworked employees of the CWS are convinced that you cannot buy a
child’s love” (Patiriančios stresą darbe
VTAT darbuotojos įsitikinusios, kad vaiko meilės nusipirkti
neįmanoma). In the article, the director of the CWS, N.S.,
described the day-to-day issues tackled by CWS employees. She noted,
at the outset, that about 122,000 children live in Vilnius. As one of
the recurring matters the director mentioned court proceedings with a
view to establishing a child’s place of residence and pointed
to children’s vulnerability when in court. To illustrate the
issue, the director stated:
“... [T]he court is examining a ... case against
a thirteen-year-old teenager ...
The mother was divorced several years ago and is now
living with another man ...
After the divorce, this woman and her former husband
concluded a friendly settlement whereby she promised to visit and
take care of the child ...
According to the CWS, this woman rarely meets the child;
during a TV programme she admitted that she did not know her son’s
telephone number ...
Although the woman alleged that she was not allowed to
meet her child ... it is the child himself who does not want to see
his mother, according to employees of the CWS ...
According to employees of the CWS, the boy used to
recount that ... his mother ... rarely called him, [and] that she
started attending parents’ meetings at school only after his
grades deteriorated ...
[I]s it not possible to buy the love of one’s
child by the slander of [State]
services [?] ...
Why does the mother not go to the school; why does she
not wait for him there? ...
‘[S]he could apologise; tell him that she loves
him,’ considered the employees of the CWS ...
‘[T]he child’s bicycle and piano [were] left
in the old apartment; why doesn’t the mother propose to her
child that he play the instrument at least several hours per day?,’
wondered the employees of the [CWS] ...”
- The
article went on to cite the child’s medical records, which the
CWS had obtained from the Vilnius Child Development Centre
Psychiatric Unit. The article read as follows:
“[The psychiatrists’] conclusion states that
at present it is best for the boy to live with guardians, because the
parents need psychological help. The psychiatrists’ conclusion
states that the boy is hostile towards his mother, because she
betrayed the family by marrying another man. Moreover, conflicts have
arisen between the boy and his mother’s current husband.
According to the doctor, his real father asks too much of the boy,
and does not allow him to communicate with other children. The mother
suspects that the boy could be being sexually abused. After [the
doctors] examined the boy, no signs of abuse were discovered. The
[psychiatrists’ conclusion] also states that when the boy was
in hospital his mother called and said that because of her son’s
behaviour she refused to come for consultations. When the boy was
released from the hospital he was supposed to go to visit a farmhouse
with his mother and other children. When the boy arrived at the
farmhouse, he found his mother’s current husband there and
became agitated. A conflict arose and the mother’s husband hit
the boy. After the child returned to hospital ... the mother pulled
the boy’s hair and bit him. The mother told the doctors that
she had merely been defending herself from the child. In the near
future the CWS employees will attend another court hearing, where it
will be decided with whom the boy should live.”
- The article did not mention any names or disclose the
place of residence of any of the persons mentioned.
- On
15 June 2001, in reply to a complaint by the applicant
about the actions of the CWS’s employees in the context of the
custody proceedings, the Children’s Rights Ombudsman wrote:
“... the CWS employees did not take all steps to
protect the boy’s interests ... That being so, besides
psychological pressure from his father ... the child was negatively
influenced by his mother’s [the applicant’s] actions. On
this point the Ombudsman refers to a trip [with her son] on which the
mother, in breach of recommendations by the doctors, brought her
current husband, thus provoking a negative reaction from her son ...
The relations between the applicant and her son, which were
softening, broke down. The son categorically refused to communicate
with his mother. At a meeting held soon afterwards at the Child
Development Centre, it was decided that the child, at his own
request, should leave the hospital with his father and go to a
sanatorium. After that decision was taken, the mother started pulling
the boy’s hair and bit him (she afterwards claimed
self-defence).”
- In
the report the Ombudsman urged the CWS to use all the powers provided
by law to help resolve these child-rights issues. The applicant’s
former husband was warned not to obstruct his son in communicating
with his mother and other children.
The
applicant was warned to respect her son’s wishes when
questioned about his place of residence or her communications with
him. Lastly, the Ombudsman emphasised that “in making public
through the media information about her and her former husband’s
relationship, his character, and other information about her former
family and her son’s characteristics, as a consequence of which
the child had experienced negative reactions from others and could
not freely communicate with children of his own age, the applicant
had breached her son’s right to private life, the inviolability
of his person and his freedom”.
- The
applicant submits that on 18 June 2001 Lietuvos Aidas
published an apology in respect of the article of 15 June 2001.
- On
4 September 2001, and at the request of the applicant, the
director of the Vilnius Child Development Centre informed her that
the CWS had acted unethically in disclosing the applicant’s
son’s medical records in the article of 15 June 2001.
- The
applicant lodged a complaint with the Inspector of Journalistic
Ethics, who gave his decision on 11 October 2001. In his
decision the Inspector warned the editors of Lietuvos Aidas as
follows:
“[The article of 15 June 2001] contained certain
statements that could be assessed as breaching the honour and dignity
of [the applicant]. Although the article sought to give the
impression that anonymity was being maintained, in fact, the
applicant was recognisable; moreover, her actions and life choices
were described one-sidedly, seeking to create a negative image.”
- The
applicant brought an action for damages against the CWS. She
complained about the disclosure to journalists of information
regarding her private life and the health of her minor son. The
applicant claimed 50,000 Lithuanian litai (approximately
14,480 euros) as compensation for non-pecuniary damage.
- On
7 May 2002 the applicant asked the Vilnius City Second District Court
to summon three witnesses who had recognised her from the information
mentioned in the impugned article. Those witnesses were a private
individual, R.V., the director of the Child Development Centre, and a
child psychiatrist from the Child Development Centre.
- On
15 December 2003 the Vilnius City Second District Court
dismissed the applicant’s action. The court found that the
article of 15 June 2001 did not contain any data from which
the applicant could be identified. In particular, the article had not
disclosed the applicant’s first or family name, nor had it
mentioned the forenames or surnames of her son, former spouse or
current spouse. Nor had any other information that would allow the
identification of the applicant or the other members of her family –
her profession, place of work, occupation, appearance, place of
residence – been mentioned in the article. It followed that the
applicant had failed to prove that the CWS had deliberately disclosed
information about the applicant’s private life.
- That
decision was upheld by the Vilnius Regional Court on 18 June 2004.
That court also considered that the applicant had failed to prove
that the article had referred to her private life. As regards the
decision of the Inspector of Journalistic Ethics of 11 October 2001,
the regional court noted that the Inspector had adopted the decision
following the applicant’s written complaint wherein she had
indicated that the article at issue had contained information about
her and her son’s private life. The court considered that it
would not have been possible for the Inspector to recognise the
applicant or her son from that article without having received the
applicant’s complaint. The same was applicable to the letter
from the Child Development Centre of 4 September 2001,
given that it was merely a response to a request by the applicant.
The content of that document was not such as to allow the conclusion
that the employees of the Child Development Centre could have
recognised the applicant or her son without prompting.
- On
29 November 2004 the Supreme Court dismissed a cassation
appeal by the applicant. It reiterated the findings of the lower
courts that the details given in the article did not permit her clear
identification. The Supreme Court also dismissed the applicant’s
contention that the Inspector and the medical institution
(paragraphs 18 and 19 above) had proved that she was
recognisable from the text of the impugned article. In the opinion of
the Supreme Court, neither the decision of the Inspector nor the
answer from the medical institution was binding or had a prejudicial
effect for the domestic courts. Those documents had been assessed as
written evidence in a civil case, but they were not normative acts.
- However,
in a separate ruling adopted on the same day, the Supreme Court
decided to notify the CWS of its disapproval of the actions of that
service’s employees. The Supreme Court noted:
“The fact that the claim [for breach of the
applicant’s privacy] was dismissed as not proven does not lead
to the conclusion that the actions of the [employees] of [the CWS],
whereby they provided information to the media regarding the private
relations of the former spouses and their impact on the child’s
rights and interests, are wholly tolerable, reasonable and compatible
with the child’s interests. ...
The objective of [the CWS] is to guarantee the
protection of the rights of the child ... A situation in which [the
CWS employees] publicly and in a relatively detailed way comment on
difficulties in the circumstances and health of a particular child
cannot be deemed compatible with the interests of the child. Although
... the court action was dismissed for failure to prove that ... the
facts mentioned in the article might allow third persons to identify
the applicant or her child, it remains obvious that the child
himself, being 13 years old, understood that the article was an
analysis of the relationship between his parents and described his
state of health. Publicising such details cannot but arouse feelings
of distress, discomfort, anxiety and dissatisfaction with his
parents’ behaviour ... In the present circumstances, there was
no ground warranting the publication of the information, nor was
there a legitimate interest in society being informed thereof ...
It is to be noted that the actions of the [employees] of
[the CWS] whereby specific facts regarding particular persons were
disclosed to the media ... were not compatible with the interests of
the child ...”
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article 22
of the Constitution of the Republic of Lithuania provides, in so far
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 with his private and family
life, or from encroachment upon his honour and dignity.”
- Article 30
of the Constitution guarantees the right of access to the courts and
provides that compensation for material and non-pecuniary damage
suffered by a person shall be established by law.
- Article 7(1)
of the Civil Code, in
force until 30 June 2001,
states in respect of compensation
for non-pecuniary damage:
“Media, organisations or persons who publish false
information degrading the honour and dignity of a person, or
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 at 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.”
- The
relevant provisions of the Law on the Provision of Information to the
Public, in force 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 a person’s private life
may be published without his consent in those cases where publication
of the information does not cause harm to the person or where the
information assists in uncovering violations of the law or crimes, as
well as where the information is presented in the examination of a
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 a person, shall pay compensation for non-pecuniary damage
to that person in the manner set forth by law. The amount of the
compensation for non-pecuniary damage may not be in excess of 10,000
litai, 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 per
cent 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, in force at
the material time, provided as follows:
“1. Restriction of 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 media
information about the state of health of a person without his written
authorisation...
3. Individuals or public health-care specialists shall
refrain ... from violating the confidentiality of information about
an individual’s private life or personal health ... which they
have acquired while performing their professional duties.”
- Ruling
no. 1 of the Senate of Judges of the Supreme Court of Lithuania
of 15 May 1998 “On the application of Articles 7
and 7(1)
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. ... The privacy of the person should be
protected where 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 published information about an individual’s
private life without his or her consent had to compensate for any
non-pecuniary damage caused.
- Article 299
of the Code of Civil Procedure states that if during the hearing of a
civil case the court comes to the conclusion that the persons have
violated the law, it must make a separate ruling (atskiroji
nutartis) and send it to the appropriate institutions or
officials, informing them about the violations. According to the
legal doctrine, the aim of a separate ruling is to draw attention to
possible infringements of law and to protect public interest.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the CWS had disclosed information regarding
her private life and the health of her minor son. The applicant
relied on 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. The parties’ submissions
1. The applicant
- The
applicant argued that in the article of 15 June 2001 in
Lietuvos Aidas the CWS had disseminated humiliating
information regarding her and her son’s life, thus interfering
with her right to privacy.
- In
the applicant’s opinion, it was possible to recognise her from
the text of the article. The article had indicated the name of the
child’s treatment institution and quoted from his medical
record word for word. Moreover, the fact that the article at issue
had concerned the applicant had been proved by the apology Lietuvos
Aidas had printed on 18 April 2001 and the response
from the Child Development Centre of 4 September 2001.
2. The Government
- The
Government argued that there had been no interference with the
applicant’s private and family life. In particular, the article
at issue had contained no forenames, surnames or other identifying
information which might support the applicant’s allegation that
she was recognisable from that publication. Moreover, it followed
from the title and its content that its topic was to describe general
issues which the CWS tackled in its everyday work. The impugned
description allegedly describing the applicant’s family
problems was only an illustrative example, making up approximately
one third of the article, to show that the CWS’s employees took
part in disputes and attended court hearings in cases concerning the
establishment of a child’s place of residence.
- For
the Government, the domestic courts had duly analysed the applicant’s
claims and come to a reasoned conclusion that there was no
substantive evidence for finding that the applicant had been
recognisable from the Lietuvos Aidas article of 15 June 2001.
The Government also stood by the domestic court decision ruling out
the Inspector’s conclusion and the doctors’ response of
4 September 2001 as conclusive pieces of evidence.
Moreover, once the fact that the impugned article did not contain
information about the applicant’s private and family life had
been established, there had been no need for the courts to decide
whether there was a legitimate interest in publishing the
information. Furthermore, there was no evidence in the civil case
file that the staff of the CWS had disclosed any information about a
particular person, be it the applicant or other unknown persons.
- The
Government considered it paramount to draw the Court’s
attention to the fact that prior to the publication of the article of
15 June 2001, the applicant had of her own free will spoken
to the media and made public her and her son’s private life
details. The public letter and article she had published in
Respublika and Lietuvos Aidas on 31 March and
3 April 2001 respectively, had been very informative as
regards her, her former husband’s and their son’s private
and family life. These had contained personal information such as the
forenames and surnames of the applicant, her former husband and their
son. Moreover, they had also mentioned that the child had received
psychiatric treatment owing to the parents’ disputes over him.
It transpired from those articles that the applicant, who according
to the case file was a journalist, had major family problems
concerning the child’s place of residence and her access to her
son, and had turned to the media instead of waiting for the issue to
be resolved by courts.
B. The Court’s assessment
1. Admissibility
- The
Court finds that this 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. It must therefore be declared admissible.
2. Merits
(a) Applicable principles
- The
Court recalls 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,
16 December 1992, § 29, Series A no. 251 B).
It also encompasses personal information relating to a patient (see
I. v. Finland, no. 20511/03, § 35,
17 July 2008).
- 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,
17 October 1986, § 37, Series A no. 106).
- The
protection of private life has to be balanced against, among other
things, the freedom of expression guaranteed by Article 10 of
the Convention. In this 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, 26 November 1991, § 59,
Series A no. 216). 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 Biriuk v. Lithuania,
no. 23373/03, § 38, 25 November 2008). 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 (see, Von Hannover, cited above, § 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 disclosure of such data may dramatically affect
an individual’s private and family life, as well as his or her
social and employment situation, by exposing that person to
opprobrium and the risk of ostracism (see Z v. Finland,
25 February 1997, §§ 95-96, Reports of
Judgments and Decisions 1997 I).
(b) Application of these general
principles to the present case
- Turning
to the circumstances of the instant case, the Court recalls that on
15 June 2001 an article was printed in Lietuvos Aidas.
The applicant recognised herself and her son in that article. The
Court has to examine whether the applicant was indeed identifiable
from the article in question.
- The
Court finds that, as was maintained by the Government, the article
set out to describe the general problems that the CWS tackled in its
everyday activities when protecting the rights of children. It
observes, however, that as an illustration of the issues dealt with
by the Service the director of the CWS mentioned a civil case where a
boy of the applicant’s son’s age was involved in court
proceedings concerning his place of residence. That being so, the
question remains whether that circumstance and other facts, as they
were portrayed in the article, permitted the applicant’s son to
be identified from them.
- Turning
to the language used in the impugned article, the Court observes that
at no point did the director of the CWS reveal the first or family
name of the applicant, her son or his father. Nor were their initials
used. Given that the article appeared to describe the matters tackled
by the Vilnius branch of the CWS, and, according to the publication,
some 122,000 children live in Vilnius, including the applicant’s
son, the Court is not inclined to find that the applicant or her son
were sufficiently identifiable from that article (see, by contrast,
Biriuk, cited above, § 41). Furthermore, whilst
noting with concern that in the publication at issue the CWS revealed
the medical records of a boy, the Court nevertheless finds that the
diagnosis, as given in those records, was not sufficiently
distinctive for the applicant’s son to be identified on the
basis of it, other than by persons already involved in the
proceedings relating to him.
- It
must also be noted that the applicant’s contentions that she
was recognisable from the article were dismissed by the domestic
courts; their assessment does not appear arbitrary. The Court also
notes that no other information – the applicant’s
profession, place of work, occupation, appearance, place of residence
– had been mentioned in the article. Moreover, the Court also
takes into account the fact that almost all the disputed information
concerning the applicant’s private life and her son’s
health had already been spread in the public domain (see
paragraphs 7-9 above). Therefore, the Court concludes that the
content of the publication was not such as to allow the
identification either of the applicant or her son. As a result, there
has been no interference with the applicant’s and her son’s
private life under Article 8 of the Convention.
There
has accordingly been no violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The applicant further complained that the courts had
refused to protect her right to privacy. She invoked Article 13
of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
1. The parties’ submissions
(a) The applicant
- The
applicant argued that the courts had concentrated their attention on
the fact that the article of 15 June 2001 in Lietuvos
Aidas had not contained her name, although, by publishing an
apology on 18 April 2001, the newspaper itself had
recognised that the information disclosed related to the applicant.
In the applicant’s opinion, the courts had also failed to take
into account the fact that a State institution had provided her
private data to the media.
- The
applicant contended that after the Supreme Court had endorsed the
conclusions of the lower courts recognising that it had been
impossible to identify from the content of the article the person to
whom the information related, it had adopted a separate ruling in
which it had contradicted itself. The applicant submitted that by
adopting a separate ruling the Supreme Court had recognised that her
and her son’s rights had been violated. Otherwise, such a
ruling would have had no grounds and would have been meaningless.
- On
22 October 2007, and in her reply to the Government’s
observations on the admissibility and merits, the applicant also
argued that the domestic courts had not been active enough when
hearing the case concerning the alleged breach of her right to
privacy. She criticised the Vilnius Second District Court for
rejecting her request of 7 May 2002 for three witnesses to
be called so that the applicant could prove that she and her son were
identifiable from the article at issue.
(b) The Government
- The
Government contested the applicant’s arguments. They submitted
that the applicant had been afforded an effective remedy for the
protection of her privacy. The applicant’s complaint had been
examined in the domestic courts and the negative outcome of the
litigation did not imply the absence of an effective remedy.
- As
to the separate ruling the Supreme Court made on 29 November 2004,
the Government submitted that such a ruling was only a procedural
means of reaction to infringements and substantial deficiencies in
the functioning of the State institutions and was not necessarily
directly connected with the substance of a case. The Supreme Court’s
initiative and actions in drawing attention to the infringements in
question had been connected only with the protection of the public
interest, that is, in the present case the protection of the child’s
interests. Thus, according to the Government, the separate ruling was
more of a general than a personal nature, given that it made no
reference to the applicant or her son. Accordingly, in the instant
case the two rulings of the Supreme Court, although adopted on the
same day, had to be considered as separate.
- Lastly,
the Government observed that the applicant had not raised her
complaint about the inability to have witnesses summoned in her
application form.
2. The Court’s assessment
- The
Court reiterates that Article 13 of the Convention guarantees
the availability at national level of a remedy to enforce the
substance of the Convention rights and freedoms in whatever form they
may happen to be secured in the domestic legal order. The effect of
Article 13 is thus to require the provision of a domestic remedy
to deal with the substance of an “arguable complaint”
under the Convention and to grant appropriate relief. The
effectiveness of a remedy within the meaning of Article 13 does
not depend on the certainty of a favourable outcome for the
applicant. Also, even if a single remedy does not by itself entirely
satisfy the requirements of Article 13, the aggregate of
remedies provided for under domestic law may do so. It is therefore
necessary to determine in each case whether the means available to
litigants in domestic law are “effective” in the sense
either of preventing the alleged violation or its continuation, or of
providing adequate redress for any violation that has already
occurred (see Sürmeli v. Germany [GC], no. 75529/01,
§ 98, ECHR 2006 VII).
- The
applicant essentially submits that the Government are under a
positive obligation to provide effective protection for the rights
guaranteed by the Convention. Given the terms of Article 10 of
the Convention, the absence of an effective domestic remedy as
regards invasions of privacy by the press constitutes a failure to
effectively respect her right to respect for her private life as
guaranteed by Article 8 of the Convention (see Earl and
Countess Spencer v. the United Kingdom, nos. 28851/95
and 28852/95, Commission decision of 16 January 1998,
Decisions and Reports 92-A, p. 56).
- Turning
to the circumstances of the instant case, the Court observes that a
legal framework for the protection of privacy did exist at the time
of the applicant’s case (see paragraphs 26-32 above). The
Court also finds that the applicant had the benefit of court
proceedings at three levels of jurisdiction. The mere fact that her
claims were dismissed for lack of proof does not, as such, render
this remedy ineffective.
- As
to the separate ruling the Supreme Court adopted the same day as it
dismissed the applicant’s case on the merits, the Court finds
that in that ruling the Supreme Court addressed the general issue of
the need for the secrecy of medical records to be respected by the
CWS. As explained by the Government, the cassation court took such a
step so that similar omissions would be avoided in future. In this
context the Court refers to its conclusion that the applicant did not
prove to be the victim of interference within the meaning of Article
8 of the Convention (see paragraphs 47 and 48 above).
- Lastly,
the applicant criticised the district court for having refused to
summon three witnesses so that she could prove her claim that she was
identifiable from the article in question. On this point the Court
observes that in that request the applicant listed three persons: the
director of and a psychiatrist at the Child Development Centre, and
one other person. The Court finds it logical that the first two
persons should have been able to recognise the applicant, given that
they had been intrinsically involved in the preparation of the report
on her son’s health. Moreover, the limited probative value the
two doctors could provide was confirmed, for reasons the Court is not
ready to disagree with, by the Vilnius Regional Court (see
paragraph 23 above). It must also be noted that neither in the
request to the domestic court nor in her observations to the Court
did the applicant specify who the third person was. Lastly, the
applicant raised this matter only in her reply to the Government’s
observations; it was not mentioned in the original application form,
which was prepared by the same lawyer.
- It
follows that this part of the application is manifestly ill-founded
and as such must be rejected as inadmissible pursuant to Article 35
§§ 3 and 4 of the Convention.
FOR THESE REASONS, THE COURT
- Declares unanimously the
complaint concerning the alleged violation of the applicant’s
right to respect for her privacy admissible and the remainder of the
application inadmissible;
- Holds by five votes to two that
there has been no violation of Article 8 of the Convention.
Done in English, and notified in writing on 17 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges Pinto
de Albuquerque and Keller is annexed to this judgment.
F.T
F.E.P.
DISSENTING OPINION OF JUDGES
PINTO DE ALBUQUERQUE AND
KELLER
- To
our regret, we are unable to follow the opinion of the majority. We
think that there has been a breach of Article 8, owing to the
illegitimate disclosure of confidential medical information by the
director of the Children’s Welfare Service (CWS). We will
explain our opinion by describing the applicable convention norms and
principles and by assessing the facts in the light of these
principles.
- In
short, the facts are the following: the applicant complained publicly
about the way the CWS had acted during her son’s custody
proceedings and about the professional qualifications of CWS
employees. She did so by means of two articles in the national press
and an interview on national television. Reacting to that criticism,
the director of the service in question gave an interview to a
national newspaper referring to the case pending before a court of a
“divorced” mother of a “thirteen-year-old
teenager”, who had given an interview for a television
programme and had used “slander” with regard to the CWS.
The director of the service also cited the child’s medical
record, sometimes even quoting the medical conclusions directly (for
example, “The psychiatrists’ conclusion states that at
present it is best for the boy to... The psychiatrists’
conclusion states that the boy is... According to the doctor, his
real father asks too much of the boy... The mother suspected that the
boy could be sexually abused. After the doctors examined the boy, no
signs of abuse were discovered. The psychiatrists’ conclusion
also states that... The mother told the doctors that....”).
- Article
8 of the Convention protects the confidentiality of medical data as a
fundamental part of the intimacy of a human being (see the
leading judgments of the Court in the cases of Z v. Finland,
25 February 1997, Reports of Judgments and Decisions 1997-I,
and M. S. v. Sweden, 27 August 1997, Reports of
Judgments and Decisions 1997-IV, and also the fundamental ECJ
judgment of 5 October 1994, X. v. Commission). The
doctor-patient privilege applies to any information shared between
doctor and patient or accessed by the doctor in respect of the
patient during the course of medical care. This principle prevents
doctors and other health professionals from revealing the content of
conversations, examinations, medical records and any medical data
related to patients, including psychiatric information (see
Panteleyenko v. Ukraine, no. 11901/02, 29 June
2006). The bond of trust between the health professional and the
patient built upon this principle is of paramount importance both for
the diagnostic process, which relies on the assessment of an accurate
history of the illness, but also subsequently for the treatment
phase, which often depends as much on the patient’s trust in
the health professional as it does on medication and surgery. This is
a non-negotiable tenet of medical practice, although
exceptions to this principle have been carved out over the centuries,
such as where a patient threatens himself or herself or a third
person with bodily harm.
Article
8 only admits the disclosure of confidential medical data in
exceptional cases, either on the basis of free and informed consent
of the patient or of a decision taken by the legally competent
authority, when such a decision is proportionate and necessary in a
democratic society in order to pursue one of the aims foreseen in its
second paragraph (compare Z v. Finland, cited
above, §§ 96-109, and contrast Panteleyenko, cited
above, §§ 54-62, where the Court found inadmissible an
unnecessary disclosure at a court hearing of confidential information
regarding the applicant’s mental state and psychiatric
treatment).
A
patient’s consent to disclosure of confidential information may
also be implied from the circumstances. For example, health
professionals directly involved in a patient’s treatment
generally have access to medical data. Even if the patient has not
expressly authorised disclosure of his or her medical data, such
consent is implied from the patient’s acceptance of treatment.
Consent is also implied when a patient is transferred from one health
professional or health facility to another or even to another public
institution, such as the Social Security office (see M.S. v.
Sweden, cited above, § 42, where the Court found no
violation when the medical data had been communicated by one public
institution to another in the context of an assessment of whether the
applicant satisfied the legal conditions for obtaining
social-security benefit which she herself had requested).
The
fact that the patient voluntarily discloses to the general public
some confidential information does not release health professionals
from the duty of confidentiality. In cases where the patient
discloses to the general public a specific item of confidential
information, the health professional may only confirm or refute that
information which has been made public by the patient. The
confidentiality of medical data should be preserved until it no
longer constitutes an overriding interest (see Editions Plon v.
France, no. 58148/00, § 53, ECHR 2004 IV where the
Court found that the protection of a medical secret was no longer
justified since not only had some 40,000 copies of the book revealing
medical secrets of former President Mitterrand already been sold, but
it had also been disseminated on the Internet and had been the
subject of considerable media comment). There is therefore no
implicit forfeiture of the right to confidentiality of medical data
when “almost all”, but not all, the disputed information
concerning the applicant’s private life and her son’s
health had already been disseminated in the public domain, as the
majority seem to conclude (see paragraph 48 of the judgment).
The
defence of the professional honour and reputation of a health
professional may justify a breach of confidentiality of medical data.
If the health professional’s conduct is under the scrutiny of a
civil or criminal court, that professional may disclose medical data
which is absolutely necessary to defend his or her conduct.
General criticism of a health service does not justify the disclosure
of confidential medical data.
- In
the light of these principles, the facts of the case show clearly
that the director of the CWS did not act professionally. His
behaviour seems rather to constitute an excessive reaction, providing
a one-sided and distorted account of a real and identifiable case
without giving due account to the autonomous interest of the child’s
welfare.
In
fact, the protagonists of the case mentioned by the director of the
CWS were perfectly identifiable, not only by the individuals involved
personally in the case (the applicant, her son, the father of the
child and former husband of the applicant and the applicant’s
new companion), but also by those professionally involved in the case
(such as the doctors and psychiatrists who provided care to the
child) and, even worse, by the general public. Any common citizen
could easily identify the persons to whom the director of the CWS
referred in the article of 15 June 2001, owing to the proximity in
time of the newspaper articles and television interview of the
applicant and the newspaper interview of the director of the CWS, who
even specifically mentioned the applicant’s television
interview to which he was reacting. The conclusion of the Inspector
of Journalistic Ethics, that “the applicant was recognisable”,
is thus correct.
- The
gravity of the breach of the duty of confidentiality by the director
of the CWS is compounded by three relevant facts. Firstly, the
director of the CWS disclosed more information than that revealed by
the applicant, and this information was particularly sensitive and
damaging for the persons involved. In fact, the director of the CWS
did not refrain from exposing to the general public a suspicion of
sexual abuse of the child and even the results of the medical
examinations performed in order to confirm that suspicion. He also
referred to a supposed aggression of the child by the applicant, who
had allegedly on one occasion pulled the child by his hair and bit
him, as well as the explanation given by the mother to the doctors.
These facts were never referred to by the mother in her press
articles or television interview.
Secondly,
the breach of the duty of confidentiality is aggravated by the fact
that the interview given by the director of the CWS portrayed the
applicant as a selfish and unstable person, in “need of
psychological help”, who did not care for the welfare of her
child and was even violent towards him. Here again, the conclusion of
the Inspector of Journalistic Ethics, that the applicant’s
“actions and life choices were described one-sidedly, seeking
to create a negative image”, is in our view pertinent. If the
director of the CWS intended to defend the reputation of his service
and its health professionals from the alleged “slander”
committed by the applicant, he chose the wrong way of doing it, by
breaching his duty of confidentiality and denigrating the applicant
in public. Besides, the applicant’s criticism of the services
was not found to be in breach of the law, since no criminal or civil
action was initiated by the CWS against the applicant. In fact, the
Children’s Rights Ombudsman even concluded that “the CWS
employees did not take all the steps to protect the boy’s
interests”, thus giving credit to the applicant’s
criticism of the CWS.
Thirdly,
the breach of the duty of confidentiality is obviously exacerbated by
the intensity of the media coverage of the whole story. This coverage
enhanced the negative impact of the words of the director of the CWS,
and he was aware of this and took advantage of it in order to
maximise that impact. Such behaviour is, to say the least,
unprofessional.
- The
unethical way in which the director of the CWS acted was clearly
perceived by the national authorities and even by the newspaper
itself. The newspaper’s apology on 18 June 2001, although
acknowledging the unethical character of the article and interview
published on 15 June 2001, came too late and did not repair the
tremendous damage already caused to the applicant and her son by the
allegations of the director of the CWS. The same applies to the
acknowledgment by the Vilnius Child Development Centre on 4 September
2001 that the director of the CWS had acted unethically in disclosing
the applicant’s son medical records.
Although
the Supreme Court did explicitly disapprove of the conduct of the
director of the CWS, no justice was done to the applicant or her son.
While rightly reprimanding the director of the CWS in a separate
ruling because “there was no ground warranting the publication
of the information, nor was there a legitimate interest in society
being informed thereof”, the Supreme Court in a contradictory
decision dismissed the applicant’s cassation appeal with the
unfounded argument that the applicant was not recognisable. By doing
so, the Supreme Court did not take due account of the applicant’s
right to privacy and the autonomous interest of the child.
- These
are the reasons for which we conclude that there was an unauthorised
and disproportionate interference with the applicant’s right to
privacy and therefore a violation of Article 8.
