CASE OF PAULIUKIENĖ AND PAULIUKAS v. LITHUANIA
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
András Sajó;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque
6. The first applicant, Ms Zita Paliukienė, was born in 1954. The second applicant, her husband Mr Vytautas Pauliukas, was born in 1953. They are both Lithuanian nationals and live in Kaunas. 7. In December 1995 the first applicant bought a portion (339/631) of a plot of land at 40 Raseinių Street and 13 Telšių Street in Kaunas. In January 1996 the subplot was registered in her name in the Real Estate Registry. 8. It appears from a letter from the authorities of 29 April 2003 to the applicants’ neighbour, Č.P., that on 3 April 2003 the Kaunas territorial planning authorities issued an administrative-law penalty notice against the first applicant on the ground that she was pursuing construction works inside a warehouse (ūkinio pastato viduje) built on the above-mentioned plot of land and was disregarding the orders of the official supervising construction works. The Government state that to their knowledge that decision has not been quashed. On 7 November 2003 the first applicant was again ordered to stop the building works as she had no permit to carry them out. 9. On 29 September 2003 the Kaunas region territorial planning authorities issued an administrative-law penalty notice on the ground that the first applicant had unlawfully reconstructed a house situated at 40 Raseinių Street and 13 Telšių Street in Kaunas. The first applicant was fined 1,000 Lithuanian litai (LTL). On 7 November 2003 the administrative court quashed the decision, on the procedural ground that the penalty notice of 29 September had been issued in the absence of the first applicant. The case was returned to the territorial planning authorities. On 25 November 2003 the authorities issued a repeat penalty notice about the unlawfully reconstructed house. This time the applicants’ daughter was present and signed the document. She told the authorities that they could not enter the house because she had no keys to it. The first applicant was fined in the same amount, LTL 1,000. 10. By a decision of 5 February 2004 the Kaunas Regional Administrative Court quashed the decision of 25 November 2003 due to procedural flaws. The court considered that the first applicant’s offence was of a continuous nature, and that it was therefore necessary to establish the date on which the offence had become known, because a fine under the Code of Administrative Law Offences could be imposed only within six months of the date the violation became known. The territorial planning authority appealed. 11. On 20 May 2004 the Supreme Administrative Court allowed the appeal in part and returned the case for new examination due to procedural flaws. The court noted however that the legal qualification of the first applicant’s actions was not questioned in that case. 12. By a decision of 1 June 2004 the Kaunas Regional Administrative Court found that the date on which the administrative violation by the first applicant had come to light was 15 May 2003. Given that the fine on the first applicant was imposed only on 25 November of that year, more than six months had passed since that violation surfaced, and therefore no administrative punishment was possible. The case was discontinued. 13. In January 2009 the first applicant asked the Kaunas territorial planning authority to approve the house in question, built on the plot of land belonging to both applicants, as fit for habitation. The authorities informed her, however, that there were certain deficiencies in respect of the arbitrarily reconstructed house. Moreover, after those deficiencies had been eliminated the second applicant was also obliged to obtain approval in relation to the building from their neighbour Č.P. 14. The applicants’ neighbour Č.P. had sued the second applicant in civil proceedings for pecuniary damage, on the ground that on 13 October 2002 the second applicant had arbitrarily and unlawfully demolished Č.P.’s fence. In that connection the municipal authorities had earlier found the second applicant guilty of a violation of administrative law. Their decision was upheld by administrative courts at two levels of jurisdiction. By a decision of 28 September 2003 the Kaunas City District Court allowed Č.P.’s civil claim in full. 15. On 4 April 2003 the territorial planning authorities gave the first applicant an administrative warning, because she had unlawfully built a wall on State land and had refused to demolish it. This conclusion was confirmed by the Kaunas City District Court on 24 April 2003. 16. Further, on 12 July 2003 the applicants’ neighbours Č.P., P.Ž., J.D. and L.B. addressed a written complaint to them. The neighbours stated that for the last eight years the applicants had been ignoring the law, had lied, and had used corrupt connections when managing their property. They also submitted that the second applicant had used his position as a Kaunas city elder for his personal proprietary interests, instead of trying to keep an untarnished reputation. The neighbours gave a detailed list of the applicants’ misdemeanours as confirmed by the authorities’ decisions, where it had been mentioned that the applicants’ house was too large, and that they had unlawfully occupied certain parts of a plot of land belonging to neighbours J.D. and L.B., and had also occupied State land. The neighbours expressed the wish, however, that in future all the neighbours would be able to live in peace, and that the applicants would abide by the law. The Government state that later on a copy of this note was given to a journalist. 17. On 27 February 2004 the first applicant was informed by the authorities that some parts of her house were outside the boundaries of the plot of land at 40 Raseinių Street and 13 Telšių Street in Kaunas and were on land belonging to the State. She was reminded that arbitrary occupation and use of State land entailed administrative liability. On 9 March 2004 a penalty notice for an administrative offence was issued to the first applicant for arbitrary occupation of State land. However, by a ruling of 14 April 2004 the court found that the boundaries between the applicants’ land and the State land had been established only after those parts of the house had been built, and that therefore the first applicant could not be held liable for the offence. 18. In 2004 the first applicant brought court proceedings against her neighbour Č.P., claiming that in 1994 he had built a brick wall between her plot of land and his, and that that wall encroached on her plot by 1.16 square metres and thus breached her property rights. Her civil claim was dismissed as unfounded by both the first-instance and the appellate courts. On 2 November 2005 the Supreme Court terminated the proceedings, upholding the lower courts’ conclusions. 19. On 11 November 2003 the daily newspaper Respublika published an article covering the applicants’ boundary disputes with Č.P. and the other neighbours. The article mentioned that that year the second applicant had been elected elder of Kaunas city centre (Kauno miesto centro seniūnas). The article alleged that the applicants were illegally building on their plot of land and had occupied part of the land belonging to the other owners and the State. The relevant passages of the article stated as follows: “The elder was occupying the neighbours’ land [Seniūnas užėmė kaimynų žemę]; Elected Kaunas city centre elder this year, Vytautas Pauliukas has been building illegally on his plot after occupying land belonging to his neighbours and the State, and is not complying with prohibitions by various institutions on rebuilding the derelict dwelling house situated in his yard [Šiemet Kauno miesto Centro seniūnu išrinktas Vytautas Pauliukas, pažeisdamas įstatymus, savo sklype vykdo savavališkas statybas, yra užėmęs valstybinę ir kaimynams priklausančią žemę, nepaiso įvairių institucijų draudimo rekonstruoti apleistą gyvenamąjį namą, stovintį kieme]; When going through the process of acquiring the land in 1995, [Mr and Mrs] Pauliukai enlarged their plot at the expense of the neighbours and the State – the entrance to L.B.’s yard was narrowed and the roof of [the applicants’] house overhung P.Ž.’s outhouse [1995 metais tvarkydami žemės įgijimo dokumentus, Pauliukai pasididino teritoriją kaimynų ir valstybinės žemės sąskaita – susiaurėjo L.B. įvažiavimas į kiemą, o virš nedidelio P.Ž. namuko pakibo Pauliukų namo stogas]; The residential dwelling section of the city’s housing department ordered Pauliukai [reference to both applicants] either to submit a reconstruction project or to demolish the building by 2 May. However, Pauliukai did not comply with the order, and continued to build a new house inside the old one without permission [Miesto ūkio departamento būsto skyrius įpareigojo Pauliukus iki gegužės 2-osios parengti statinio kapitalinio remonto projektą arba jį nugriauti. Deja, Pauliukai nurodymo nepaisė ir senojo pastato viduje, neturėdami tam leidimų, ėmė statyti naują namą]; V. Pauliukas has worked as deputy director of Inkaras, an enterprise belonging to EBSW [V.Pauliukas yra dirbęs EBSW koncernui priklausančiame “Inkare” direktoriaus pavaduotoju]; Despite several notices [warning them] not to proceed with the illegal building work, Pauliukai have disregarded letters from various institutions and have continued with the works [Nors Pauliukai buvo kelis kartus įspėti nevykdyti savavališkų statybų, jie įvairių tarnybų raštų nepaiso ir toliau atlieka darbus].” 20. After the article was published, on 1 December 2003 the second applicant asked the newspaper to correct the part of the article he considered to be erroneous and damaging to his reputation as a Kaunas city centre elder. He was also dissatisfied at being linked to the Inkaras company, owned by the EBSW group of companies, which was at that time under criminal investigation for bringing Inkaras to insolvency. As the newspaper did not comply with this request, he then brought a claim in the civil courts, seeking rectification of the article and compensation for non-pecuniary damage. The third party in the civil proceedings, the applicants’ neighbour Č.P., told the court that the article did not contain any untruths, and suggested that the civil claim be dismissed. 21. On 3 December 2004 the Vilnius City Second District Court dismissed the second applicant’s claim. The court took into account that when preparing the publication the journalist had talked to the applicants’ neighbours, examined documents, telephoned the second applicant and had regard to his opinion. The court pointed out that, in accordance with Article 2.24 § 5 of the Civil Code, the press could be held liable for defamation if it knew that information it published did not correspond to reality, that is if it acted in bad faith. However, in some circumstances the media had a right to trust certain sources of information (for example, an official police report or a document by other municipal or State authorities). In such cases the media were exempt from the obligation to verify the accuracy of that information. On this point the court noted that the applicants’ neighbours had repeatedly addressed complaints to State and municipal institutions about the applicants’ housing projects. Those complaints had been investigated by the authorities and official replies had been received. For the court, the case file showed that both of the applicants had been held liable under administrative law for rebuilding the house without a permit and for unlawfully occupying State land. Conversely, the applicants’ neighbours had been honest when they addressed the State and municipal institutions, because, as the replies from those institutions indicated, their accusations in respect of the applicants had proved to be true. These were precisely those written replies that were given to the journalist when she was preparing the publication. Given that they were official documents, the journalist had a right to trust their content. 22. The district court also noted that the first applicant had been named in the article as the owner of the plot of land in question. Given that no evidence had been submitted to the court to the effect that the property had been divided between the two applicants, the presumption that the plot of land was joint property of the two applicants as spouses was a valid one. This explained why the article mentioned not only the first applicant but also the second applicant. It was also noteworthy that in the civil court the second applicant had acknowledged that the authorities had ordered a halt to construction on the plot of land belonging to his wife, but argued that they had obeyed the order. However, from the letter of 29 April 2003 (see paragraph 8 above) it was clear that the reference in the article to administrative sanction was correct. As regards the second applicant’s prior work at Inkaras, he himself admitted that he had worked at the Inkaras factory as head of a production unit (cecho viršininkas). Accordingly, the second applicant had failed to prove that his dignity had been insulted because of the published reference to his position at Inkaras. 23. The Vilnius City Second District Court next observed that defamation meant publication of material which did not correspond to reality and which in the light of law and moral and customary norms damaged a person’s honour, dignity or reputation in society. It indicated further that the insulting nature of the material published did not have to be proven if the words or combination of words used were manifestly insulting. The court concluded that the publication at issue did not contain such language. Next, the court noted that in defamation cases the court had to examine the construction of the sentence as well as the whole context of the publication in order to find out the exact meaning of the word or combination of words. The court concluded that the second applicant had indicated only separate sentences but had not had regard to the whole content of the publication. 24. By a ruling of 13 April 2005, the Vilnius Regional Court allowed the second applicant’s claim in part and ordered the daily to print a rectification. Specifically, the documents from the Real Estate Registry showed that the owner of the house and of the plot of land was the first applicant. Consequently, the published material did not correspond to reality, because the evidence of inappropriate use of the property had been linked to the first applicant but not to the second. Similarly, as regards the second applicant’s former post at Inkaras, which belonged to the EBSW group, that statement was misleading, because the second applicant had in fact worked as a director at a [subsidiary] enterprise, Inkaro padai, which he did not deny. The appellate court thus concluded that naming the second applicant separately and together with the first applicant as persons who had broken the law, and linking those breaches of the law to the first applicant’s employment, as well as stating that in the past the second applicant had had links to the EBSW group, was damaging to his authority as a public figure. The court considered that the journalist had deliberately ignored her obligation to provide information that was fair, accurate and impartial, in breach of Article 3 of the Law on the Provision of Information to the Public. 25. On 2 November 2005 the Supreme Court took a final decision in the case. The court indicated that Article 25 of the Lithuanian Constitution guaranteed the right to freedom of expression. Nevertheless, that right was not an absolute one, and had to be exercised taking into account the rights of others as well as the interests of society. Furthermore, Articles 4 and 19 of the Law on the Provision of Information to the Public obliged the media to present information correctly, without bias and in compliance with the requirements of journalistic ethics. 26. As regards the the publication at issue described a situation in which there was conflict among four co-owners of the plot of land over the boundaries of that plot, the applicants’ illegal construction and their unlawful occupation of the neighbours’ and State land. It was clear from the content of the applicants’ neighbours’ complaints to various institutions and the replies they had received that those neighbours were trying to protect their rights which had been breached, and also to make sure that the second applicant, who was a public figure, abided by the law. The neighbours, acting in good faith, gave copies of those complaints and replies to the journalist, who in turn wrote an article on the subject. The first-instance court was correct to find that the official replies from municipal and State institutions, which referred to violations of law committed by both applicants in that they had reconstructed the house without a permit and had also occupied State-owned land and demolished part of a neighbour’s wall, among others, were a sufficient basis for publication of information about a public figure, the second applicant, who had been elected Kaunas city centre elder. 27. The Supreme Court also emphasised that the mere fact that the second applicant was not mentioned in the replies from the municipal authorities did not confirm that the violations could not be linked to him. Despite the fact that the plot of land and the house where both applicants lived were registered in the first applicant’s name, that property had been acquired during their marriage. Accordingly, this was their joint property which they had equal rights to manage and use, in accordance with Article 21 of the Code of Marriage and Family. Moreover, in the event that a co-owner of the property of a public figure exercised their co-ownership rights inappropriately, the public figure (in this case the second applicant) had a duty to control his co-owner’s actions and to prevent violations of the law, as in this case. For the Supreme Court, if a co-owner exercising the joint property rights of both spouses violated the pecuniary and non-pecuniary rights of other persons, the other co-owner incurred liability as well, the more so if that other co-owner was a public figure. Having regard to the above arguments, the Supreme Court concluded that the appellate court had wrongly interpreted Article 3 of the Law on the Provision of Information to the Public and erred in finding that the journalist had deliberately violated that law by breaching her responsibility to present correct, precise and impartial information. The Supreme Court concluded that those errors made the decision of the appellate court invalid. The decision of the first-instance court was upheld. 28. Article 22 of the Lithuanian Constitution provides that the private life of a person is inviolable. Information concerning private life may be collected only in accordance with the law, which protects everyone from arbitrary and unlawful interference and from encroachment upon his or her honour or dignity. Article 25 provides for a right to seek and impart information. This right may not be limited unless it is necessary to do so to protect a person’s private life or dignity. 29. As regards the right to privacy and protection of honour and dignity, the Civil Code reads as follows: “1. The privacy of a natural person shall be inviolable. Information on a person’s private life may be made public only with his consent ... 3. Establishment of a file on another person’s private life in violation of law shall be prohibited. A person may not be denied access to the information contained in the file except as otherwise provided by the law. Dissemination of information on a person’s private life shall be prohibited unless, taking into consideration the person’s official position and his status in society, dissemination of the said information is in line with a lawful and well-grounded public interest in having the said information. 4. Publication of matters related to a person’s private life, however truthful they may be, as well as making private correspondence public in violation of the procedure prescribed in paragraphs 1 and 3 of the given Article, and invasion of a person’s dwelling without his consent except as otherwise provided by the law, keeping his private life under observation or gathering information about him in violation of law as well as other unlawful acts, infringing the right to privacy, shall all form the basis for bringing an action for compensation for pecuniary and non-pecuniary damage incurred by the said acts...” “1. A person shall have the right to demand the refutation, in judicial proceedings, of publicised data which abase his honour and dignity and which are erroneous, as well as redress for pecuniary and non-pecuniary damage incurred by the placing in the public domain of the said data ... Data which have been made public shall be presumed to be erroneous unless the publisher proves the opposite to be true. 2. Where erroneous data have been publicised by mass media (including the press, television and radio) the person who is the subject of the publication shall have the right to provide a refutation and demand that the media outlet concerned publish the said refutation free of charge or make it public in some other way ... 3. A request for redress for property, pecuniary or non-pecuniary damage shall be investigated by the court, irrespective of whether or not those responsible for the dissemination of those data have refuted them. 4. Where a media outlet refuses to publish a refutation or make it public in some other way, or fails to do so within the term provided in paragraph 2 of the given Article, the person concerned thereby acquires the right to apply to court in accordance with the procedure established in paragraph 1 of the given Article. The court shall establish the procedure and the term for the refutation of data which were erroneous or abased the person’s reputation. 5. Media outlets which publicise erroneous data abasing a person’s reputation shall provide redress for damage to property, pecuniary and non-pecuniary damage incurred only in cases when it knew or should have known that the data were erroneous, as well as in cases when the data have been made public by its employees or anonymously and the media outlet refuses to name the person who supplied the said data. 6. A person who places erroneous data in the public domain shall be exempted from civil liability in cases when the publicised data relates to a public figure and his State or public activities, and the person who has placed them in the public domain can show that his actions were in good faith and meant to introduce the person and his activities to the public ...” 30. The relevant parts of the Law on the Provision of Information to the Public read as follows: “1. In the Republic of Lithuania freedom of information is enshrined in the Constitution, this and other laws, and international treaties of the Republic of Lithuania. 2. Producers and disseminators of public information as well as journalists shall be governed in their activities by the Constitution and laws, international treaties of the Republic of Lithuania, also by the principles of humanism, equality, tolerance, and respect for an individual person; they shall respect freedoms of speech, creativity, religion, and conscience, variety of opinion, adhere to the norms of professional ethics of journalists, support the development of democracy and public openness, promote civil society and State progress, enhance State independence, and develop national culture and morality. 3. Public information must be presented in the media fairly, accurately and in an unbiased manner. 4. The use of freedom of information may be restricted by the requirements, conditions, restrictions or penalties set out in the laws and necessary in a democratic society to protect Lithuania’s State security, its territorial integrity, public order and constitutional system, to guarantee the impartiality of its judicial authority in order to prevent law violations and crimes, disclosure of confidential information and protect people’s health and morality as well as their privacy, dignity and rights. 5. Persons shall be held accountable for violating the freedom of information and statutory restrictions on the use of freedom of information in accordance with the procedure established by this and other laws.” “1. Every person shall have the right to freely express his ideas and convictions. This right encompasses freedom to maintain one’s opinion, to seek, receive and disseminate information and ideas in accordance with the conditions and procedure set out in the laws...” “1. When producing and disseminating public information, a person’s right to have his personal and family life respected must be ensured. 2. Information about a person’s private life may be published only with the consent of that person, except for the cases specified in paragraph 3 of this Article and if the publication of such information does not cause harm to that person. 3. Information concerning private life may be published without a person’s consent in cases where the publication of such information helps to reveal violations of law or criminal acts, also where such information is presented in open court. Furthermore, information about the private life of a public figure (State political figures, public servants, heads of political parties and public organisations, as well as other persons participating in public or political activities) may be made public without his consent where such information discloses the circumstances of the aforementioned person’s private life or his personal characteristics which are of public significance ...” “... 2. It shall be prohibited to disseminate disinformation and information which is slanderous and offensive to a person or degrades human dignity and honour...” 31. The Law on Civil Service provides that the civil service is based on the principles of rule of law, transparency and responsibility for the decisions taken. One of the basic principles of conduct for civil servants is exemplariness: he or she must duly perform his or her duties and be of irreproachable reputation, respectful and orderly (Article 3). 32. The Law on Local Government provides that the neighbourhood (seniūnija) is a structural territorial unit of a municipality. The neighbourhood is headed by the elder (seniūnas), who is appointed by the director of the municipal administration in accordance with the Law on Civil Service. The elder carries out internal management of the neighbourhood (Articles 30 and 31). 33. On 15 May 1998 the Supreme Court adopted a ruling concerning courts’ practice in civil cases concerning protection of honour and dignity (Teismų praktika, 1998, Nr. 9). The court ruled that a person’s privacy and his or her honour and dignity should be protected when it is established that information about him has been disseminated without his consent and in the absence of lawful public interest. When assessing non-pecuniary damage caused it was important to take into account such criteria as the form and the manner of dissemination, the guilt of the defendant, and the content of the information. 34. Article 21 of the Code of Marriage and Family (Santuokos ir šeimos kodeksas) provided that property obtained by spouses during their marriage was their common and joint property. They had equal rights to manage and use that property. Even if the property had been registered in the name of one of the spouses, it was considered to belong to both spouses. 35. Article 17 of the International Covenant on Civil and Political Rights, acceded by Lithuania on 20 November 1991, provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.