Information Note on the Court’s case-law 245
November 2020
Jakovljević v. Serbia (dec.) - 5158/12
Decision 13.10.2020 [Section II]
Article 8
Article 8-1
Respect for private life
Refusal to prosecute for allegedly defamatory comments about applicant’s late son, a private individual who had not exposed himself to outside scrutiny: victim status upheld
Facts – The military judge investigating the death of the applicant’s son had released personal information about him to the media. The applicant argued that this had affected the reputation of his late son and of his whole family. He unsuccessfully initiated criminal proceedings by means of a private prosecution of the said judge for defamation.
Law –
(a) The applicant’s victim status and locus standi in respect of his son
A number of cases had confirmed the principle that Article 8 rights are non-transferable (see Dzhugashvili v. Russia (dec.), 41123/10, 9 December 2014, Information Note 181). The applicant therefore did not have legal standing to rely on his son’s rights and this part of the complaint was rejected under Article 34 as being incompatible ratione personae with the Convention.
As to whether the applicant’s own right to respect for his private and family life were at stake, the Court had accepted that the reputation of a deceased member of a person’s family may, in certain circumstances, affect that person’s private life and identity, and thus come within the scope of Article 8 (see Perinçek v. Switzerland [GC], 27510/08, 15 October 2015, Information Note 189).
At least one of the impugned statements had related directly to the applicant’s son. Unlike the Dzhugashvili case, the present case had not focused on the reputation of a world-famed public figure, but rather had dealt with the reputation of a twenty-one-year-old military army private who had died while on duty. Therefore, in distinguishing between defamatory attacks on private persons, whose reputation as part and parcel of their families’ reputation remains within the scope of Article 8, and legitimate criticism of public figures who, by taking up leadership roles, expose themselves to outside scrutiny, the present case fell within the first category. The Court therefore examined the complaint in so far as it related to the applicant’s rights under Article 8.
(b) Non-exhaustion of domestic remedies
The Court found, however, that the applicant should have brought a civil action, based on the Obligations Act. He had not explained why such a remedy would have been inadequate and ineffective in the particular circumstances of his case, or shown that there had existed special circumstances absolving him from this requirement.
Conclusion: inadmissible (non-exhaustion of domestic remedies).
(See also Practical Guide on Admissibility Criteria)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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