CASE OF PETKEVIČIŪTĖ v. LITHUANIA
No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)
Carlo Ranzoni
4. The applicant was born in 1956 and lives in Vilnius. 5. The applicant’s father, V.P., was a well-known writer in Lithuania. In September 2003 he published a book entitled “The Ship of Idiots” (Durnių laivas – hereinafter “the book”) in which he presented his memoirs of various events in the history of Lithuania, often using a satirical and mocking tone. Several passages in the book discussed the personality and activities of V.L.-Ž. (deceased at the time of publication). V.L.-Ž. had been a minister in the Provisional Government of Lithuania, which operated from June to August 1941, and his son V.L. had been a prominent Lithuanian politician since the 1980s. The book contained the following statements (hereinafter “the disputed statements”), in which V.L.-Ž. was referred to as “[L.] senior” or “the patriarch”: “[V.L.] had to somehow cover for his father, who had for many years collaborated with the KGB ... Having worked as a spy, he was returned home by Moscow ...” ([L.] reikėjo kaip nors pridengti tėvą, ilgus metus bendradarbiavusį su KGB ... Jį kaip atidirbusį žvalgą namo sugrąžino Maskva ...) “Some were already [trying to get familiar with] the new ‘patriarch’, Hitler’s ... friend, ... spy, ... copier of strategic maps, [L.] senior ...” (Kai kas jau vedžiojo už parankių naujai iškeptą „patriarchą“, Hitlerio ... draugą, ... žvalgą, ... strateginių žemėlapių kopijuotoją senąjį [L.] ...) “[L.] senior ... told how in 1918 ... [they] had raised the flag in the castle tower ... [H]ow afterwards they had had to flee to Kaunas in order to escape from the Bolsheviks, how on the way they had been arrested [and] interrogated... (and, as far as I know, recruited).” (Senasis [L.] ... pasakojo, kaip 1918 metais ... pilies bokšte kėlė vėliavą, ... kaip jiems po to teko nuo bolševikų bėgti į Kauną, kaip pakeliui juos areštavo, tardė... (o kiek man žinoma, ir užverbavo).) “The pharmacy was ejected onto the streets. Moreover, the pharmacists were sued because ‘the patriarch’ did not find on the veranda the six-metre oak bench which he had left there before the war.” (Vaistinę išmetė į gatvę. Dar daugiau, vaistininkai buvo paduoti į teismą todėl, kad patriarchas verandoje nerado šešių metrų ąžuolinio suolo, kurį buvo palikęs prieš karą.) 6. On the fourth page of the book it was stated that the author assumed full responsibility for the truthfulness of the facts presented in the book (autorius prisiima visą atsakomybę už knygoje išdėstytų faktų tikrumą). 7. After the book’s publication, V.L. lodged a complaint with the Prosecutor General’s Office (hereinafter “the prosecutor”), seeking the opening of a pre-trial investigation against V.P. for defamation of his late father. On 21 October 2003 the prosecutor opened the investigation. 8. During the investigation, the prosecutor asked various bodies about the activities of V.L.-Ž. described in the disputed statements. He received replies from the Central State Archives, the Genocide and Resistance Research Centre of Lithuania, the National Library of Lithuania, the Archives of Literature and Art, and the State Security Department. They all stated that they did not have any information indicating that V.L.-Ž. had collaborated with the Nazi or Soviet regimes or any information confirming any of the other parts of the disputed statements. The prosecutor also interviewed several individuals who had been quoted as sources in V.P.’s book but they all stated that they were unable to confirm the truthfulness of the events described in the disputed statements. 9. On 10 October 2005 the Vilnius City First District Court acquitted V.P. of defamation on the grounds that the offence could be committed only against a living person, whereas V.L.-Ž. was already dead when V.P.’s book had been published. The court noted that V.P.’s actions could have constituted the crime of contempt for the memory of a deceased person, but that charge had not been included in the indictment. 10. V.L., V.P. and the prosecutor all submitted appeals against that decision, and on 17 January 2006 the Vilnius Regional Court quashed it. The court found that the indictment had not complied with the relevant procedural requirements, and returned the case to the prosecutor. 11. On 9 August 2006 the prosecutor discontinued the pre-trial investigation. He considered that there was sufficient evidence to charge V.P. with contempt for the memory of a deceased person, but criminal prosecution for that offence had become time-barred. 12. In June 2007 V.L. lodged a civil claim against V.P. He asked the court to order V.P. to publicly retract the disputed statements and to award him 100,100 Lithuanian litai (LTL – approximately 29,000 euros (EUR)) in respect of non-pecuniary damage. V.L. submitted that the disputed statements had been erroneous and insulting to the honour and dignity of his late father, as well as to his own honour and dignity. 13. V.P. disputed the claim, submitting that he had not intended to defame or insult anyone and that the disputed statements had been taken out of context. He contended that the book had been a product of literary creativity made up on the basis of his subjective memories, and that it had been written in figurative and exaggerated language which could be interpreted in many different ways. V.P. thus argued that the disputed statements should be regarded as value judgments and not as factual statements. He further submitted that, in any event, when writing the book he had relied on various historical sources and witness testimonies, as well as on his own personal experience – he provided a list of books and other publications which he had consulted, and described the circumstances in which he had found out about the events discussed in the disputed statements. Therefore, he argued that the disputed statements had been sufficiently accurate. Lastly, V.P. contended that both V.L.-Ž. and V.L. had been prominent politicians and public figures and therefore had to tolerate higher levels of criticism. 14. On 10 December 2008 V.P. died. The court adjourned the examination of the case until V.P.’s legal successors were identified. On 7 May 2009 the applicant and her two brothers, who had accepted their father’s inheritance, were issued with certificates of inheritance, stating that they had inherited their father’s estate in equal parts. On 23 July 2009 the court decided to continue with the examination of the case, replacing the defendant V.P. with the applicant and her brothers. 15. V.L. subsequently amended his claim and asked the court to declare that the disputed statements had been erroneous and insulting to the honour and dignity of himself and his late father (see paragraph 36 below), and to award him a symbolic sum of LTL 1 (approximately EUR 0.29) in respect of non-pecuniary damage. 16. At the court hearing on 9 December 2009, V.L. argued that the disputed statements amounted to statements of fact and not value judgments. He submitted that, in line with the domestic courts’ case-law, the burden was on the author to prove that those statements were factually accurate, but the evidence collected in both the civil and the criminal proceedings demonstrated that they did not have any factual basis. 17. The applicant and her brothers were represented by the same lawyer who had represented V.P. in the civil proceedings up until his death. They submitted essentially the same arguments that V.P. had submitted before (see paragraph 13 above). They also argued that an obligation to pay compensation for damage allegedly caused by a literary work was a personal obligation of the author and could not be transferred to his heirs. They furthermore submitted that the disputed statements had been based on their late father’s memories and subjective opinions, and so they should not be required to prove the truthfulness of those statements. 18. On 23 December 2009 the Vilnius Regional Court found in V.L.’s favour. It stated that, in line with the domestic law, in order to uphold the claim, four circumstances had to be established: firstly, that certain statements had been disseminated; secondly, that those statements had concerned the claimant (V.L.) and his late father (V.L.-Ž.); thirdly, that the statements had been insulting to the honour and dignity of V.L.-Ž. and V.L.; and fourthly, that the statements had been erroneous. The claimant (V.L.) had to prove that the first three circumstances had existed, whereas the defendants (the applicant and her brothers) had to prove that the fourth circumstance had not (see paragraph 34 below). 19. The Vilnius Regional Court observed that there was no dispute that statements had been disseminated and that they had referred to V.L.-Ž. and V.L. (see paragraph 5 above). However, the parties disagreed as to whether they had amounted to statements of fact or to value judgments. The court found that the disputed statements had been presented as factual statements about V.L.-Ž.: they had implied that certain events had actually occurred, for example, that V.L.-Ž. had been recruited by the Soviet forces and had collaborated with them, or that he had expressed support for Hitler’s ideology (see paragraph 5 above). Accordingly, the court held that those statements should have had a sufficient factual basis. 20. Seeking to determine whether the disputed statements had been factually accurate, the Vilnius Regional Court examined the evidence which had been collected in the criminal proceedings (see paragraph 8 above), as well as the sources indicated by V.P. himself in his written submissions to the court during the civil proceedings (see paragraph 13 above). The court found that none of those sources had been able to confirm any parts of the disputed statements to the standard of proof required in civil cases. 21. The Vilnius Regional Court next examined whether the disputed statements had been insulting to the honour and dignity of V.L.-Ž. and V.L. As for the first three statements (see paragraph 5 above), it considered that, in the historical context of Lithuania, the allegations of collaboration with the Soviet security services or of support for Nazi ideology had clearly been insulting not only to V.L.-Ž. but also to his family, including V.L., who had been a prominent politician himself. As for the fourth statement (see paragraph 5 above), it considered that allegations of ejecting the pharmacy owners onto the streets and suing them for a wooden bench – an item of movable property of low value – had created the impression of V.L.-Ž. as someone with low moral standards and a lack of respect for others, and that that statement had therefore been insulting as well, not only to V.L.-Ž. himself, but also to his family. 22. The court dismissed the defendants’ objection that the case concerned the personal obligations of their father. It held that the domestic law provided several different remedies for victims of defamation in publications (see paragraph 36 below). On the one hand, the victim could ask the court to order the author of the work to retract the disputed statements, which would be a personal obligation on the part of the author which could not be transferred to his or her heirs. On the other hand, the victim could ask the court to declare that the disputed statements were erroneous and defamatory (insulting to the victim’s honour and dignity), in other words to request an objective assessment of those statements. Such an assessment could be made without the involvement of the author and would thus not constitute a personal obligation on the part of the author. Accordingly, the court held that, since V.L. had made the latter request (see paragraph 15 above), domestic law permitted the transfer of civil liability to the author’s heirs. 23. As a result, the Vilnius Regional Court upheld one part of V.L.’s claim and declared that the disputed statements had been erroneous and insulting to his and his late father’s honour and dignity. It dismissed V.L.’s claim for compensation in respect of non-pecuniary damage as timebarred. 24. The applicant and her brothers lodged an appeal against the decision of the Vilnius Regional Court, presenting essentially the same arguments as before (see paragraphs 13 and 17 above). 25. On 13 August 2010 the Court of Appeal upheld that decision in its entirety. It firstly stated that the key difference between statements of fact and value judgments was that the truthfulness of the former could be verified and proved, whereas the latter expressed a subjective view to which the criteria of truthfulness or accuracy did not apply. The court held that, notwithstanding the fact that the book had been based on the author’s memories, the disputed statements had not been limited to expressing a subjective view on any persons or events, but alleged that certain actions had been taken and certain events had occurred. In the court’s view, the average reader, even when reading the disputed statements as part of the entire book and not “out of context” (see paragraph 13 above), would perceive them as statements of fact and not as value judgments. 26. The Court of Appeal agreed with the defendants that V.L.-Ž. and V.L. had been public figures and therefore had to tolerate greater levels of criticism. It observed that, in line with the case-law of the domestic courts, dissemination of factually inaccurate statements about a public figure did not attract civil liability when such statements concerned that person’s public activities and when their author had acted in good faith, seeking to inform society about such activities (see paragraph 35 below). Nonetheless, the Court of Appeal stated that this could not justify dissemination of falsehoods which were insulting to a person’s honour and dignity, even when they concerned a public figure. It held that, in the case at hand, the first-instance court had thoroughly examined the evidence collected during the criminal proceedings and the sources indicated by the author himself (see paragraph 20 above), and had reached the conclusion that, on the balance of probabilities, the events described in the disputed statements “were more likely not to have happened than to have happened”. The Court of Appeal also examined additional sources referred to in the defendants’ appeal, but found that they did not contain any information which would enable it to reach a different conclusion than that reached by the firstinstance court. It therefore held that the factual accuracy of the disputed statements had not been proved. The Court of Appeal also upheld the firstinstance court’s conclusion that those statements had been insulting to the honour and dignity of V.L.-Ž. and V.L. (see paragraph 21 above). 27. Lastly the Court of Appeal dismissed the defendants’ argument that they had been obliged to prove the truthfulness of their father’s memories and subjective opinions. It observed that the disputed statements had been found to constitute statements of fact and not value judgments and it had therefore been necessary to prove their factual accuracy and not the reasons why the author might have held certain opinions. The court stated that the factual accuracy of the disputed statements could be proved by anyone and not only by their author, and that the applicant and her brothers had been able to rely on the material collected during the criminal proceedings and on the submissions made by their father in the civil proceedings, as well as to submit new evidence themselves. The Court of Appeal also observed that the applicant and her brothers had accepted their father’s inheritance (see paragraph 14 above), which included the rights to reprint the book and to receive royalties from it. The court considered that if the author’s heirs had been exempted from the liabilities arising from the book, then the claimant, V.L., would have been denied any possibility to defend his rights against the erroneous and insulting statements published therein. 28. Consequently, the Court of Appeal upheld the firstinstance decision declaring the disputed statements erroneous and insulting to the honour and dignity of V.L.-Ž. and V.L. 29. The applicant and her brothers submitted an appeal on points of law, presenting essentially the same arguments as before (see paragraphs 13 and 17 above). 30. On 14 March 2011 the Supreme Court dismissed that appeal. It underlined the importance of striking a fair balance between the right to freedom of expression and the right to respect for honour and dignity, but stated that the right to freedom of expression did not extend to the deliberate dissemination of falsehoods with the aim of humiliating, insulting or otherwise causing harm to others, even if directed at public figures. The Supreme Court observed that the lower courts had established that the disputed statements had been erroneous and insulting to the honour and dignity of V.L.-Ž. and V.L. (see paragraphs 21 and 26 above); it therefore ruled that the dissemination of those statements could not be justified by the exercise of the right to freedom of expression. 31. The Supreme Court also reiterated that the claim submitted by V.L. did not constitute a personal obligation of the author of the book and could therefore be transferred to his heirs. It stated that the applicant and her brothers had accepted their father’s inheritance, which included certain rights to the book (see paragraph 14 above). Accordingly, once the court had declared that the disputed statements in the book had been erroneous and insulting to the honour and dignity of others, the author’s legal successors had the obligation to ensure that those statements would no longer be disseminated.