Communicated on 29 September 2015
SECOND SECTION
Application no 59076/08
A.Č.
against Lithuania
lodged on 15 November 2008
STATEMENT OF FACTS
1. The applicant, Mr A.Č., is a Lithuanian national who was born in 1949 and is currently detained in Vilnius.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant has been convicted several times of sexual crimes against minors and possession of child pornography, and at the time of the lodging of this application he was serving a prison sentence. He claims to be a board member of several non-governmental organisations, an author of various publications, a member of the anti-Soviet resistance and a political prisoner of the Soviet regime.
1. Publications concerning the applicant
4. On 23 December 2000 the newspaper Laikinoji sostinė published an article entitled “Perverts are getting more impudent” (Iškrypėliai įžūlėja) (hereinafter, “the first article”). This article included claims that the applicant had had a sexual relationship with his mother. According to the article, during a search of the applicant’s house, prosecution officers had discovered photographs of the applicant and his mother engaged in sexual intercourse. No such photographs were published in the newspaper.
5. On 7 June 2004 the magazine Ekstra published an article entitled “Pornography – a flourishing illegal business” (Pornografija – klestintis nelegalus verslas) (hereinafter, “the second article”). This article also claimed that the applicant had had a sexual relationship with his mother, and that prosecution officers had discovered photographs proving this, but no such photographs were published in the magazine.
6. On 21 June 2004 the applicant contacted Ekstra and asked it to publish a retraction which he had written, but the magazine refused to do so on the grounds that the retraction contained language which was insulting.
2. The criminal proceedings
7. In 2008 the applicant brought a private prosecution against the journalist who had written the second article (D.D.) and the editor of Ekstra (V.V.), accusing them of defamation and insult. The applicant argued that the claims about his alleged sexual relationship with his mother (who had died in 1989) were untrue, and that the authors of the article were lying about the existence of any photographs proving otherwise.
8. On 10 May 2008 the Vilnius District Court acquitted D.D. and V.V., and on 16 July 2008 the Vilnius Regional Court did likewise.
9. The courts examined both defendants and found that the second article had copied statements about the applicant and his mother from the first article. According to domestic law, journalists could not be held responsible for publishing false information if that information had previously been published in another media source and had not been publicly retracted (see “Relevant domestic law” below). The courts held that, since the first article had not been retracted, D.D. and V.V. had not acted unlawfully in reprinting its contents in the second article.
10. In addition, the domestic courts held that D.D. had made sufficient efforts to verify the truthfulness of the statements about the applicant. He had contacted the author of the first article (S.P.), as well as an employee of the prosecutor’s office which had conducted the search of the applicant’s house (M.R.), and they had both confirmed the existence of the relevant photographs of the applicant and his mother. S.P. and M.R. were called to testify before the first-instance court, and confirmed that they had seen such photographs.
11. The courts also noted that the second article was not specifically targeted at the applicant; it examined a certain aspect of life in the city of Kaunas, and statements about the applicant constituted only a small part of the entire article. The courts also found that the language used in the second article was neutral and not derogatory. Consequently, the courts found no grounds to conclude that D.D. and V.V. had intended to insult the applicant.
12. During the proceedings, the applicant asked the courts to examine several witnesses: officers who were present during the search of his house when the photographs were allegedly found, in addition to fellow prisoners who could testify that the applicant had suffered distress following the publication of the second article. The courts dismissed these requests on the grounds that the testimonies of the proposed witnesses would not be relevant to proving whether or not D.D. and V.V. had acted unlawfully.
13. The courts did not consider the applicant’s claim for damages, noting that the acquittal did not preclude him from instituting separate civil proceedings against the defendants in order to claim damages (see paragraphs 14-17 and “Relevant domestic law” below).
3. The civil proceedings
14. In 2004 the applicant lodged a civil claim for damages against D.D. and the magazine Ekstra. He later amended his claim to also include both S.P. (the author of the first article) and the company which owned the newspaper Laikinoji sostinė. The civil proceedings were suspended pending the outcome of the criminal proceedings instituted by the applicant (see paragraphs 7-13 above).
15. On 23 September 2010 the Vilnius Regional Court dismissed the applicant’s claim for damages, and on 28 December 2011 the Lithuanian Court of Appeal did likewise.
16. The courts questioned D.D. and S.P., and again found that the second article had been based on the first article; therefore, as the first article had not been publicly retracted, the journalists could not be held responsible for reprinting its contents.
17. The courts further held that domestic law provided for a two-month time-limit within which a person could ask media sources to publish a retraction of published statements. They noted that the time-limit for requesting a retraction was necessary in order to protect journalists from the unreasonable burden of having to prove the truthfulness of information which had been published a long time ago, especially in cases such as the one in question, where the applicant had complained more than four years after the publication of the first article. Although the applicant argued that he had not been aware of the first article in time to request a retraction, the courts found that he had been interviewed by S.P. in December 2000 as part of the preparation of the first article. On this basis, the courts held that the applicant ought to have known that the impending publication would concern him. Consequently, the journalists could not be held responsible for the applicant’s own failure to take timely action.
B. Relevant domestic law
18. The relevant parts of Article 2.24 of the Civil Code read as follows:
“1. A person shall have the right to demand the retraction, in judicial proceedings, of information which has been made public and which denigrates his honour and dignity and is erroneous; in addition to the right to compensation for pecuniary and non-pecuniary damage incurred by the placing in the public domain of the aforementioned information ... Information which has been made public shall be presumed to be erroneous, unless the publisher proves the opposite to be true.
2. Where erroneous information has been made public by the mass media (including the press, television and radio), the person who is the subject of the publication shall have the right to provide a proposed retraction, and to demand that the media source concerned publish the aforementioned retraction free of charge or make it public in some other way. The media source shall publish the retraction or make it public in some other way within two weeks of receipt. The media source shall have the right to refuse to publish the retraction, or to make it public, only in such cases where the content of the retraction contradicts good morals ...
5. Media sources which make public erroneous information which denigrates a person’s reputation shall only provide compensation for damage to property, and for any pecuniary and non-pecuniary damage incurred, in cases where they knew or should have known that the information was erroneous ...”
19. Article 154 § 2 of the Criminal Code provides that the offence of libel in the media or in any other publication is punishable by a fine, arrest or imprisonment for a term of up to two years.
20. At the material time, Article 155 § 1 of the Criminal Code provided that the public humiliation of another person in an abusive manner by actions, words or in writing is punishable by a fine, restriction of liberty, arrest or imprisonment for a term of up to one year.
21. At the material time, Article 55 § 1 (3) of the Law on Provision of Information to the Public provided that a producer of public information should not be held liable for publication of false information if that information had been published earlier in other mass media sources, and had not been retracted by the media source which published it.
22. At the material time, Article 45 § 2 of the Law on Provision of Information to the Public provided that a written request to retract information had to be submitted to the producer or disseminator of public information within two months of the information being published.
23. Article 115 § 3 (2) of the Code of Criminal Procedure provides that a civil claim for damages is not considered when the defendant in criminal proceedings is acquitted on the grounds that no crime has been committed. This does not preclude the civil claimant from bringing a claim for damages in civil proceedings.
COMPLAINTS
24. The applicant complained under Article 7 § 2, Article 8 § 1, Article 10 § 2 and Article 13 of the Convention that the publication of claims that he had had a sexual relationship with his (now deceased) mother had interfered with his private life, and that he did not have an effective remedy against this interference.
25. The applicant also complained under Article 6 §§ 1 and 3 (d) that the courts in the criminal proceedings had refused to examine the witnesses he had requested.
QUESTIONS TO THE PARTIES
1. With regard to the criminal proceedings instituted by the applicant against D.D. and V.V, was Article 6 § 1 applicable in its civil limb in respect of the applicant (see Perez v. France [GC], no. 47287/99, §§ 66-67, ECHR 2004‑I)?
2. If so, did the applicant have a fair hearing in the determination of his civil rights and obligations in the context of those criminal proceedings, in particular as regards the refusal of the court to examine witnesses proposed by the applicant?
3. Has there been a violation of the applicant’s right to respect for his private life, contrary to Article 8 of the Convention (see Aleksey Ovchinnikov v. Russia, no. 24061/04, §§ 49-50, 16 December 2010)?
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