Communicated on 14 June 2018
FOURTH SECTION
Application no. 70489/17
Algirdas BUTKEVIČIUS
against Lithuania
lodged on 19 September 2017
STATEMENT OF FACTS
The applicant, Mr Algirdas Butkevičius, is a Lithuanian national, who was born in 1958 and lives in Vilnius. He is represented before the Court by Ms K. Čeredničenkaitė, a lawyer practising in Vilnius.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a politician.
As of 1996 he has been a member of the Seimas (the Lithuanian Parliament). From 2004 to 2005 he served as Minister of Finance and from 2006 to 2008 as Minister of Transport and Communications. In the 2009 Presidential election the applicant was the candidate for the Lithuanian Social Democrats Party, at that time one of the biggest political parties in Lithuania. He came second, with 11 percent of the votes. Between 1999 and 2008 he was the Deputy Chairman, and between 2009 and 2017 the Chairman of the Lithuanian Social Democrats Party.
At the time concerning the facts of this case, between December 2012 and December 2016, the applicant was the Prime Minister of Lithuania.
In 2015 the Kaunas Region Prosecutor’s Office and the Special Investigations Service were conducting a pre-trial investigation no. 03‑700012-15, regarding possible abuse of office (Article 228 § 2 of the Criminal Code), into allegations of political corruption related to the process of designating some State territories as resorts by Government Resolution. During the investigation, the prosecutor was authorised to record telephone conversations of certain individuals. One of the recorded conversations was between the applicant and R.M., the mayor of Druskininkai resort town. Another conversation was between that mayor and K.T., the Minister of the Environment. During those telephone conversations they discussed the adoption of a Government Resolution with regard to the status of resorts.
The applicant was questioned in that pre-trial investigation as a witness.
On an unknown date J.S., who was the Chairman of the Seimas’ Committee on Legal Affairs (Teisės ir teisėtvarkos komitetas), wrote to the prosecutors that on 5 February 2016 the Internet news portal Delfi published an article “R.M.’s telephone calls are sinking the ministers: how it all happened (R.M. skambučiai skandina ministrus: kaip viskas vyko)”, which possibly disclosed information about private telephone conversations, on the basis of sources which the journalist had not revealed. The Chairman considered that such information should have been known only to the pre-trial investigation authorities, which allowed a conclusion that the pre-trial investigation materials – the fact that telephone conversations had taken place, although not their extracts – had been leaked to the media. J.S. considered that such disclosure was not only unlawful under Article 177 of the Code of Criminal Procedure and could attract criminal liability under Article 247 of the Criminal Code, but also was discrediting the criminal investigation, in particular in situations where the case would not reach trial. Such unlawful disclosure also breached a person’s right to presumption of innocence and a right to private life. Lastly, disclosure of the pre-trial investigation materials with the aim to form society’s opinion was discrediting the principle of impartiality of criminal proceedings. J.S. thus asked the prosecutors to establish the source of the leak and to bring those accountable to justice.
On 23 February 2016 the Seimas’ Anticorruption Commission asked the prosecutors to provide information about the envisaged completion of the criminal investigation and about a procedural decision that had been taken. The letter was signed by the Chairman of that Commission V.G.
By a decision of 29 February 2016 the prosecutor decided to discontinue the pre-trial investigation on the basis of Article 3 § 1 (1) of the Code of Criminal Procedure, that is, that no actions which could be characterised as crime had been performed. The prosecutor’s decision contained transcripts of the applicant’s and Druskinkai town mayor’s telephone conversation, as well as those of the conversation between that mayor and the Minister of the Environment.
On the same day, and complying with the earlier request of the Seimas’ Anticorruption Commission, the prosecutor sent the latter, by email, a copy of the decision to discontinue the criminal proceedings. As later indicated by the prosecutor, the letter addressed to the Commission did not specify that the materials could be disclosed to the public. The same day the prosecutor also sent a copy of his decision, this time by post to the Chief Official Ethics Commission. He considered that the materials gathered during the pre-trial investigation showed a possible breach of other laws, such as the Law on the Adjustment of Public and Private Interests in the Public Service (Viešųjų ir privačių interesų derinimo valstybinėje tarnyboje įstatymas) as well as the Code of Conduct for State Politicians (Valstybės politikų elgesio kodeksas).
On 1 March 2006 the Seimas’ Anticorruption Commission held a hearing which was open to the public. Some twenty journalists were present at that hearing, including journalist V.D., who had written articles for the Internet news portal Delfi. In the course of the pre-trial investigation no. 01‑2‑00056-16 (see below) that journalist later confirmed that during the Commission’s hearing, which lasted about five-six hours, its Chairman had announced that materials had been received from the prosecutor’s office. The Commission then discussed the circumstances in which the aforementioned Government Resolution regarding territorial planning had been adopted. The journalists made audio and video recordings. During the hearing, the members of the Anticorruption Commission publicly cited and discussed the telephone recordings transcripts of the applicant and the mayor of Druskininkai resort town, as well as those of the aforementioned mayor and the Minister of the Environment. The journalist testified that the quotes from telephone conversations which she afterwards used in her article (see paragraph below) she heard during that public hearing of the Anticorruption Commission. To her knowledge, no-one at the hearing asked that the Commission’s hearing be closed.
In the evening of the same day, the Internet news portal Delfi published V.D.’s article “Juicy details in the conversations that were made public: I am fed up here but at least [I can] relax at your place for an hour or so” (Išviešintuose pokalbiuose – pikantiškos detalės: čia užknisa protą, pas tave nors užsimiršti valandai kitai). It transpires that the article made public certain extracts from the telephone conversations of the applicant and the Druskininkai mayor, as well as other conversations, that had been recorded during the pre-trial investigation no. 03-7-00012-15 and were reproduced in the prosecutor’s decision to discontinue it. When later questioned by the prosecutor, the journalist also refused to disclose her source, citing Article 8 of the Law on Informing Society, as well as Article 15 of the Code of Ethics of Journalists and Publishers, which protect the journalists’ right not to divulge the source (see the Relevant domestic law part below).
The transcripts of those telephone conversations were later reprinted by other media sources.
On 2 March 2016 the applicant lodged a complaint with the Prosecutor General, asking that persons responsible for disclosing the information, which was of restricted use, be brought to justice. The applicant pointed out that criminal investigation no. 03-7-00012-15 had been discontinued and that in that criminal investigation he had the procedural status of witness. He noted that, under Lithuanian law, use of pre-trial investigation materials was strictly regulated and unlawful disclosure of such material was punishable. Moreover, under the Constitution, other laws as well as under the European Convention on Human Rights, a person’s correspondence and telephone conversations were inviolable. In his case, however, the telephone conversations which he had with the Druskininkai town mayor had been made public during the Seimas’ Anticorruption hearing of 1 March 2016. Such disclosure had caused him great damage, as a politician and as a private person, because those conversations had been negatively characterised in the press and that would have a clear impact on his career as a politician and as Chairman of the Social Democrats party. The applicant reiterated that there had been nothing criminal in his actions, as proven by the fact that the criminal case regarding the adoption of the Government Resolution had been discontinued. He considered that the telephone conversations, which he had made on his office telephone, had been disclosed with the aim to harm him as a person, as well as the Social Democrats’ political party and the Government. The applicant considered that it was the Seimas’ Anticorruption Commission who had been responsible for the unlawful disclosure of the pre-trial investigation materials.
On 4 March 2016 the mayor of Druskininkai town also lodged an application with the Prosecutor General, complaining about disclosure of pre-trial investigation materials at the Seimas’ Anticorruption Commission hearing of 1 March 2016. The mayor stated that he had taken part in the hearing and the Members of the Commission had discussed the telephone conversations between him and the Minister of the Environment and between him and the applicant, but that those telephone conversations had not been cited verbatim. The mayor understood that the hearing had been public. He also stated that, as far as he could tell, the members of the Seimas’ Anticorruption Commission had copies of the prosecutor’s decision to discontinue the criminal case. He suspected that it was the members of the Commission who had allowed the journalist V.D., who at the hearing was sitting close to two members of the Commission – A.A. and R.D., to take photographs of that decision, or even gave her a copy. The mayor also pointed out that on 4 March 2016 the Member of the Anticorruption Commission A.A. posted a message on his Facebook profile about the Commission’s hearing and the disclosed conversations, which, for the mayor, showed that A.A. had solely political goals in mind and disregarded the law.
The mayor also noted that he had been questioned by the Special Investigation Service during the criminal investigation no. 03‑7‑00012‑15 (see above), but had never been allowed to receive a copy of the Kaunas Region prosecutor’s decision to discontinue the pre-trial investigation on the pretext that the case-file materials had been sent to the Prosecutor General Office in Vilnius. Lastly, the mayor submitted that the disclosure of his telephone conversations had damaged his reputation, both in political and in private spheres, and caused him to suffer from depression. He pointed out that he would not start civil proceedings for damages, because for him it was more important that justice be served (kad būtų įvykdytas teisingumas), and not to receive monetary compensation.
On 7 March 2016 the Minister of the Environment also lodged an application with the Prosecutor General, where he complained about the disclosure of pre-trial investigation materials. His arguments were similar to those of the applicant.
On 10 March 2016 the Prosecutor General Office started pre-trial investigation no. 01-2-00056-16 regarding the possible disclosure by the Members of the Seimas’ Anticorruption Commission members of non-public materials from the pre-trial investigation file (Article 247 of the Criminal Code), and also regarding the possible disclosure of information regarding the private life an individual (Article 168 § 1 of the Criminal Code).
By a decision of 5 October 2016 the prosecutor discontinued the pre-trial investigation, on the ground that no crime had been committed. The prosecutor found, firstly, that the telephone conversations between the applicant and the Druskininkai mayor, as well as those between the mayor and the Minister of the Environment, that had been reproduced in the prosecutor’s decision to discontinue the criminal case no. 03‑7‑00012‑15, concerned work-related matters and did not fall within the sphere of private life. Neither the applicant, nor the Minister of the Environment or the Druskininkai mayor had proven that those telephone conversations had concerned private matters. All telephone conversations had been made from office telephone numbers. Accordingly, disclosure of such telephone conversations could not constitute a crime under Article 168 § 1 of the Criminal Code. In reaching that conclusion the prosecutor also relied on the Constitutional Court’s ruling of 23 October 2002 to the effect that all the persons in this case – the applicant, as the Prime Minister, the Minister of the Environment and the mayor of a town, had been public persons to whom higher moral standards applied (also see the Relevant domestic law part below).
As to Article 247 of the Criminal Code – unlawful disclosure of pre-trial investigation file materials, the prosecutor considered that only persons listed in that provision could be held responsible under that Article of the Criminal Code. The members of the Seimas’ Anticorruption Commission, however, had not been party to the criminal proceedings in case no. 03‑7‑00012‑15 and therefore they could not be subjected to criminal liability under that Article. Moreover, the Commission’s hearing of 1 March 2016 had been public and, for the prosecutor, there had been no reason to organise that hearing as non-public.
The applicant and the Minister of the Environment then appealed against the prosecutor’s ruling, but on 23 November 2016 a higher prosecutor rejected their appeals.
On 29 December 2016 the applicant’s appeal was rejected by the Vilnius City District Court.
On the basis of the appeal lodged by the applicant, the Vilnius Regional Court then returned the case for fresh examination, on the ground that the first instance court had not answered the applicant’s complaint about a possible breach of Article 247 of the Criminal Code, that is, that the pre-trial investigation had not established who had disclosed the pre-trial investigation materials to the media.
On 10 February 2017 the Vilnius City District Court rejected the applicant’s appeal. The court found that the conversation between the applicant and the mayor had not been related to the applicant’s private life: they had only discussed the circumstances of the adoption of a Government Resolution related to resorts, and not any matters relating to their personal, family, spiritual, sexual life, or any other spheres of private life; furthermore, they had called each other on their office telephones and there had been a professional relationship between them - they had belonged to the same political party. In addition, the applicant himself, when questioned during the investigation, stated that he had not maintained any relations with the mayor unrelated to work; in none of his complaints did he identify any private matters discussed in that conversation. Thus, finding that no private life had been discussed in the conversation, the court held that the publication of the conversation records could not have infringed the applicant’s private life. It further observed that because of his position as Prime Minister, his work-related activity and his participation in public life the applicant was a prominent politician and that the pre-trial investigation and the telephone conversations had concerned a matter of public interest – allegations of corruption in the territorial planning, society had a legitimate interest to know about them. Accordingly, no issue under Article 168 § 1 of the Criminal Code could arise.
The Vilnius City District Court also considered that members of the Seimas Anticorruption Commission had not been party to the criminal proceedings, no. 03-7-00012-15, nor had they been warned not to disclose those materials. At the same time, those persons had a right to see the pre-trial investigation file materials, as noted in Article 4 § 1 of the Law on the Seimas Anticorruption Commission, and the prosecutor had been obliged to provide them with a copy of his decision. In the court’s view, this meant that the Commission members could not be held liable, under Article 247 of the Criminal Code, for having disclosed the materials of that case.
By a final ruling of 20 March 2017 the Vilnius Regional Court rejected the applicant’s appeal and left the first instance court’s decision unchanged. The court held, firstly, that the disclosed information was related to the professional activity of a State official. The applicant, because of the Prime Minister’s duties which he performed at the relevant time, was a public person. Given that Article 168 § 1 of the Criminal Code protected only information of a private nature, and that the information disclosed was related to a certain episode – adoption of the Government Resolution related to territorial planning and actions of certain State officials, this information was not private and its disclosure could not attract criminal liability under the aforesaid provision of the Criminal Code.
As to the other provision of the Criminal Code – Article 247, the Vilnius Regional Court shared the first instance conclusions in their entirety.
B. Relevant domestic law and practice
The Constitution reads:
Article 22
“Private life shall be inviolable.
Personal correspondence, telephone conversations, telegraph messages, and other communications shall be inviolable.
Information concerning the private life of a person may be collected only upon a justified court decision and only according to the law.
The law and the courts shall protect everyone from arbitrary or unlawful interference with their private and family life, and from encroachment on their honour and dignity.”
The Law on Providing Information to the Society (Visuomenės informavimo įstatymas), at the relevant time read as follows:
Article 8. Confidentiality of the Source of Information
“1. The producer, disseminator of public information, their participant or a journalist shall have the right to keep the confidentiality of the source of information and not to disclose it, except for the cases specified in this Article.
2. A court may, by a reasoned decision, order to disclose the source of information or may apply coercive measures with an aim of disclosing the source of information where it is necessary to disclose the source of information for vitally important or otherwise significant public interests, also in order to ensure the protection of persons’ constitutional rights and freedoms and the administration of justice, and where it is impossible to disclose the source of information by any other means or where such means have already been exhausted.
...”
Article 14. Protection of Privacy
“1. In producing and disseminating public information, it is mandatory to ensure a person’s right to have his personal and family life respected.
2. Information about a person’s private life may be published, with the exception of the instances stipulated in paragraph three of this Article, only with the consent of that person and if publication of the information does not cause undue harm to that individual.
3. Information concerning private life may be published without the person’s consent in those cases when publication of the information does not cause harm to the person or when the information assists in uncovering violations of the law or crimes, as well as when the information is presented in the examination of the case in an open court process. In addition, information about private life of a public person may be disseminated without his or her consent, if such information discloses circumstances of such person’s private life or his or her character traits which have public interest.”
The Code of Ethics of Journalists and Publishers (Žurnalistų ir leidėjų etikos kodeksas) reads:
Article 15
“The journalist and producer of public information should identify the source of his information. For this reason he has to obtain permission to refer to the source. If the source of information requests the journalist not to disclose his or her name, the journalist and producer of public information has no right to disclose it. In this case the journalist and producer of public information shall assume legal and moral responsibility for the published information.”
In the ruling of 23 October 2002 “On the protection of the private life of a public person and the right of the journalist not to disclose the source of information”, the Constitutional Court held:
“8. While deciding whether the impugned provision of Paragraph 3 of Article 14 of the Law that the information about the private life of the public person (State politicians, public servants, chairmen of political parties and public organisations as well as other persons participating in public and political activities) may be published without the consent of the latter provided this information discloses the circumstances of the private life or personal characteristics of a public person, which are of public importance is in compliance with Article 22 of the Constitution, it needs to be noted that personal characteristics, behaviour and certain circumstances of private life of persons participating in social and political activities may be of importance to public matters. The interest of the public to know more about these persons than about others is constitutionally grounded. The said interest would not be ensured if in every particular case, when publishing the information of public importance about private life of a person participating in social and political activities, the consent of the said person was necessary. Thus, media may inform the public about private life of such a person without the consent of the latter inasmuch as personal characteristics, behaviour and certain circumstances of private life of said person may be of importance to public matters and due to this the information published is of public importance. The person participating in social and political activities cannot not anticipate a greater attention of the public and the media towards him. Such persons, as a rule, are called public persons.
The persons who, due to the office that they hold or due to the character of the work that they perform, participate in public life should be categorised as public persons in the first place. Those are politicians, State and municipal officials, heads of public organisations. Other persons may also be considered as public persons, if their activity is of importance to public affairs.
The Constitution does not employ the notion of public person. When establishing the institute of public person, the legislature must define the criteria under which certain persons may be categorised as public persons. It needs to be noted that the post of the person or his participation in social activity in itself may not be considered necessary or sufficient criteria under which the person could be categorised as a public person. The legislature, establishing, by law, the criteria under which the person may be categorised as a public person, must pay heed to the balance between the right of an individual to privacy enshrined in Article 22 of the Constitution and the interest of the public to be informed about all the factors capable of exerting influence on public affairs, which is guaranteed and safeguarded by the Constitution.
It needs to be noted that certain facts of the private life of public persons and their personal characteristics in their public activity, as a rule, come to light of their own accord. In its ruling of 8 May 2000, the Constitutional Court held that when the person caries out actions of a public character and comprehends it or must comprehend it or is capable of understanding it, whether at home or on other private premises, then such actions of a public character will not enjoy protection under Article 22 of the Constitution and the person may not expect privacy.”
The Law on the Seimas’ Anticorruption Commission (Seimo antikorupcijos komisijos įstatymas), insofar as relevant, reads as follows:
Article 4. Obligations of Commission Members
“1. Commission members must:
1) protect information, which they have acquired in the course of the performance of their official duties, if it comprises State, service, commercial or other secret protected by laws;
2) not make public the information concerning the progress of the [Commission’s] investigation, persons connected with it and materials obtained, until the Commission shall adopt decisions having examined the issue.
2. The provisions of this Article are also obligatory for the experts and employees whom the Commission has called upon for assistance.”
Article 6. Procedure of Commission’s Work
“1. The Commission’s hearing shall be deemed lawful, if attended by more than half of its members.
2. The Commission’s hearings shall as a rule be held publicly. Closed hearings, which may only be attended by the persons invited by the Commission, may be held per a decision of the Commission.
3. The Commission Chairman or at his recommendation his deputy, shall chair the hearings.”
The Criminal Code at the material time read:
Article 168. Unauthorised Disclosure or Use of Information
about a Person’s Private Life
“1. A person who, without another person’s consent, makes public, uses for his own benefit or for the benefit of another person information about the private life of another person, where he gains access to that information through his service or profession or in the course of performance of a temporary assignment ...,
shall be punished by community service or by a fine or by restriction of liberty or by arrest or by imprisonment for a term of up to three years.
2. A legal entity shall also be held liable for an act provided for in this Article.
3. A person shall be held liable for an act provided for in this Article only subject to a complaint filed by the victim or a statement by his authorised representative or at the prosecutor’s request.”
Article 247. Unauthorised Disclosure of Pre-Trial Investigation Data
“A person who discloses pre-trial investigation data prior to the hearing of a case at a court sitting without the authorisation of a judge, prosecutor or pre-trial investigation officer investigating this case shall be considered to have committed a misdemeanour and
shall be punished by community service or by a fine or by restriction of liberty or by arrest.”
The Code of Criminal Procedure at the material time read:
Article 161. Informing the person about the measures which had been applied to him
1. The person, to whom one of the measures listed in this Chapter [such as interception of telephone communications] had been applied without his knowledge, must be informed of this fact after the measure is no longer applied. The person must be notified immediately, once it is possible without causing prejudice to the success of the pre-trial investigation.
2. If the criminal procedure is discontinued, all collected information about a person’s private life must be immediately destroyed once the decision to discontinue the proceedings is drawn up. The prosecutor takes decision regarding destruction of such information once the time-limits ... to appeal against the decision to discontinue the pre-trial investigation expire or once the parties’ complaints regarding discontinuing the pre-trial examination had been examined.
...”
Article 177
“1. Information about a pre-trial investigation shall not be made public. It may be made public only subject to a prosecutor’s authorisation and only to such an extent as is determined as permissible ...”
COMPLAINTS
Under Article 8 of the Convention the applicant complains that the disclosure to the media of the transcripts of his telephone conversation, which had been recorded during a pre-trial investigation, had infringed his right to respect for his private life and correspondence. The applicant notes that, pursuant to the Court’s case-law, Article 8 of the Convention also covers calls made from office telephones (he cites Halford v. the United Kingdom, 25 June 1997, Reports of Judgments and Decisions 1997‑III). The applicant also points out that such a disclosure by members of the Seimas’ Anticorruption Commission had not had basis in law because Article 177 the Code of Criminal Procedure explicitly prohibits disclosure of pre-trial investigation materials unless with the authorisation of the prosecutor and no such authorisation had been issued in his case. In fact, Article 161 of the Criminal Code even obliges the authorities to immediately destroy any information related to private life once the criminal proceedings are terminated.
Secondly, the applicant notes that he has been actively participating in political life in Lithuania, which included being a member of the Seimas and the Prime Minister. That notwithstanding, there was no public interest to disclose his secretly recorded telephone conversation, because during the pre-trial investigation the prosecutor had established that no crime had been committed. Neither the applicant nor other persons involved in that investigation were charged with any criminal actions. In other words, there was no objective ground to assert that disclosing the materials of a discontinued criminal investigation could achieve one of the aims listed in Article 8 § 2 of the Convention. In the applicant’s view, by such actions the Lithuanian authorities only sought to satisfy society’s wish to know about another persons’ private life and unjustifiably equated that to a public interest.
The applicant lastly complains that to this day the domestic authorities had not established who had leaked the telephone conversation transcripts to the journalists and had not punished those accountable.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s right to respect for his private life and correspondence, within the meaning of Article 8 § 1 of the Convention (see, Amann v. Switzerland [GC], no. 27798/95, §§ 44 and 65, ECHR 2000‑II; Fernández Martínez v. Spain [GC], no. 56030/07, §§ 109-110, ECHR 2014 (extracts); Bărbulescu v. Romania [GC], no. 61496/08, §§ 69-73, ECHR 2017 (extracts); also see, more recently, Antović and Mirković v. Montenegro, no. 70838/13, §§ 40-43, 28 November 2017)?
2. In the affirmative, has there been a violation of Article 8 of the Convention on account of the fact that the transcripts of the applicant’s telephone conversation, which was reproduced in the prosecutor’s decision of 29 February 2016 to discontinue the criminal investigation no. 03‑7‑00012-15, had been disclosed to the media (see Amann, cited above, §§ 77 and 81, ECHR 2000‑II; Antović and Mirković, cited above, § 60; compare Drakšas v. Lithuania, no. 36662/04, § 33, 31 July 2012)?
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