Information Note on the Court’s case-law 263
June 2022
Algirdas Butkevičius v. Lithuania - 70489/17
Judgment 14.6.2022 [Section II]
Article 8
Article 8-1
Respect for correspondence
Respect for private life
Lawful and proportionate disclosure of intercepted conversation by Prime Minister on public interest matter, despite reputational impact: no violation
Facts – The applicant is the former Prime Minister of the Republic of Lithuania. During a pre-trial investigation into allegations of corruption relating to a Government resolution, and carried out by a regional prosecutor’s office and the Special Investigations Service, the recording of telephone conversations by a town mayor (R.M.) was authorised. A telephone conversation between the applicant and R.M. was intercepted, in which a Government resolution was discussed. The prosecutor later discontinued the pre-trial investigation on the basis that no crimes had been committed. His decision contained transcripts of, inter alia, the telephone conversation between the applicant and R.M.
Separately, the Seimas Anti-Corruption Commission (“the Commission”) was instructed to conduct a parliamentary inquiry into the circumstances in which the relevant Government resolution had been adopted. The prosecutor sent the Commission, and the Chief Official Ethical Commission, a copy of the decision to discontinue criminal proceedings. The former Commission held a public hearing on the matter, with a number of journalists present and in which the pre-trial investigation materials were discussed. One of those journalists then published an online article making public extracts from the transcripts of the telephone conversation between the applicant and R.M. The information was subsequently widely reported on.
The applicant unsuccessfully complained to the General Prosecutor’s Office, and on appeal to the domestic courts, as to the disclosure of the telephone conversation to the public.
Law – Article 8: The Special Investigation Service’s transmission of data concerning the intercepted phone conversation to other State authorities, and the authorities’ use of that data and its release into the public domain, including the public scrutiny of the telephone transcript at the Anti-Corruption Commission’s hearing, had constituted an interference with the applicant’s rights under Article 8.
(a) Whether the interference was “in accordance with the law”
As to whether the interference had been “in accordance with the law”, the applicant had contended that the State authorities had not properly protected the information, as they had been required to by law:
Firstly, the applicant complained as to prosecutor’s transfer of pre-trial investigation materials to the Anti-Corruption Commission. When requested to do so by the Chairman of the Anti-Corruption Commission, who had acted in compliance with domestic law, the prosecutor had sent on to that commission his decision to terminate the pre-trial investigation. Having considered that the materials gathered had had elements demonstrating possible breach of other laws, the prosecutor had also sent a copy of his decision to the Chief Official Ethics Commission, which was the prosecutor’s right and obligation under domestic law. The Lithuanian authorities had subsequently concluded that, by transferring the material to the Commission and by not warning it that the material should not be made public, the prosecutor had not breached the rules of criminal proceedings. The prosecutor’s findings had also never been quashed by the domestic courts. Accordingly, the Court could not but reject the applicant’s argument that the information gathered during the pre-trial investigation had not been protected by the prosecutor.
Secondly, the content of the applicant’s conversation had been disclosed in the framework of the Anti-Corruption Commission’s proceedings regulated by the domestic law, having obtained authorisation for use of that material from a prosecutor. The prosecutor had not imposed any restriction on the disclosure of the pre-trial investigation decision and had not requested that the Commission’s hearing, which as a rule was public, be closed. The prosecutor and the domestic court had pointed out that neither the members of the Commission nor the journalist had been participants in the criminal proceedings, to be liable for disclosure of the content of the telephone conversation. In the absence of any clear evidence of arbitrariness, the Court did not see any reason to depart from the domestic authorities’ conclusions. The interpretation of the relevant legislation by the prosecutor and the domestic court had not been such as to render the contested action unlawful in Convention terms.
Finally, the interference had had a basis in law, which had been accessible and foreseeable. The applicant should have been able to foresee that his actions could be scrutinised, given his professional occupation, and the legal regulation on the publicity and transparency of public service.
The interference had therefore been “in accordance with the law”, and had pursued the legitimate aims of protecting the rights and freedoms of others and preventing disorder and crime. The Court next had to determine whether the interception and disclosure of the conversation had been necessary in a democratic society:
(b) Whether the interference was “necessary in a democratic society”
The conversation at issue had undoubtedly concerned the matter of the adoption of the relevant Government resolution. As concluded by the prosecutor and domestic courts, it had contained no elements related to the applicant’s private life, except for the question of reputation, reverted to below.
When examining the applicant’s complaint of breach of privacy, the domestic court had referred to the Court’s case-law on the protection of private life and had carefully balanced the competing interests in question, namely the applicant’s reputation and honour on the one hand, and the right of the press to report on matters of public interest on the other. The Court also had regard to the Constitutional Court’s practice, relied upon by the prosecutor in dismissing the applicant’s complaint, whereby the activities of State and municipal officials linked to the implementation of functions of the State or municipal authorities and administrations were always of a public nature. Furthermore, actions of a public nature did not enjoy protection under Article 8, and a person might not expect privacy. In the Court’s view, the matter of the adoption of the Government resolution had been precisely the implementation of State powers to adopt legal acts, and thus the circumstances surrounding the adoption of that resolution had fallen squarely within the notion of actions of a public nature. Moreover, even if the applicant had complained that the disclosure of the conversation had had an impact on his reputation, the personal characteristics and behaviour of persons participating in social and political activities, in addition to certain circumstances of their private life, might be of importance to public matters.
The Court acknowledged the applicant’s argument that the release into the public domain of his telephone conversation had had an impact on his reputation. He had suffered negative experiences when communicating with others after the transcript of the conversation had been disclosed by the media. In addition, he had been a professional politician for decades, it going without saying that reputation-related criteria played an important role in a politician’s life. Nevertheless, the applicant had not pointed to any concrete and tangible repercussions which the media’s disclosure of the telephone conversation had had on his private life. Therefore, his situation had to be contrasted with those that the Court had examined in other cases, such as Oleksandr Volkov v. Ukraine (dismissal from judicial office) or Polyakh and Others v. Ukraine (dismissal and exclusion from the civil service). In the instant case, the disclosure had not resulted in, for example, the applicant’s dismissal from the post of Prime Minister, or any other sanctions against him. He had not been convicted and the Chief Official Ethics Commission had established nothing unethical in the actions of the persons mentioned in the prosecutor’s decision to discontinue the criminal proceedings. Those facts and findings had alleviated the applicant’s situation to a certain extent. Besides, the relevant Government resolution had been annulled, so that any associated flaws had been eliminated from the domestic legal system. That gave weight to the Government’s argument that the press had had a right to learn of and report a possible wrongdoing. At that juncture, it was noted that the applicant had laid the blame for the disclosure not on the press, but on the State authorities.
In the light of the above, even if the applicant’s reputation among his colleagues had been affected by the disclosure of the conversation, there were no factual grounds, let alone evidence, indicating that such an effect was so substantial as to have constituted a disproportionate interference with his Article 8 rights.
Conclusion: no violation (unanimously).
(See also Oleksandr Volkov v. Ukraine, 21722/11, 9 January 2013, Legal Summary; J.B. and Others v. Hungary (dec.), 45434/12 et al., 27 November 2018, Legal Summary; Polyakh and Others v. Ukraine, 58812/15 et al., 17 October 2019, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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