- EGMR n° 5631/05 - Urteil vom 08.12.2011,

amtliche Fassung,  English (ECHR, hp = WiROZ, Rechtspr, 2011.12.08.a)

 

deutsche Pressemitteilung des Kanzlers No 277 v. 08.12.2011 (ECHR, hp)

 

Case Althoff und andere gegen Bundesrepublik Deutschland

 

U.a: Die rückwirkende Änderung des Vermögensgesetzes 1998 zugunsten des staatlichen Fiskus und zum Nachteil von Rückgabeantragstellern verstößt gegen Art. 1 Protokoll Nr. 1 EMRK (Schutz des Eigentums);

sowie zur weiteren (insoweit erfoglosen) Beschwerde - EGMR n° 35023/04 - „Case Göbel           erg.[INFO_7] 

 

__________________________________________________________________________________________

 

Rechtsanwaltskanzlei von Raumer

Meinekestraße 13

10719 Berlin - Germany

 

 

 

 

 

 

              PRESSEMITTEILUNG iS Dr. Udo Madaus, EGMR Urteil vom 09. Juni 2016, 44164/14

 

 

FIFTH SECTION  

 

CASE OF MADAUS v. GERMANY

 

(Application no. 44164/14)  

 

JUDGMENT 

 

STRASBOURG 

 

9 June 2016 

 

 


This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.


In the case of Madaus v. Germany,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Ganna Yudkivska, President,
Angelika Nußberger,
Khanlar Hajiyev,
André Potocki,
Faris Vehabović,
Yonko Grozev,
Carlo Ranzoni, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 10 May 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 44164/14) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Udo Madaus (“the applicant”), on 26 May 2014.

2. The applicant was represented by Mr S. von Raumer, a lawyer practising in Berlin. The German Government (“the Government”) were represented by their Agents, Mr H.-J. Behrens and Ms K. Behr, of the Federal Ministry of Justice and Consumer Protection.

3. The applicant alleged, in particular, that he was not granted the opportunity of an oral hearing before the domestic courts and complained that a hearing which had been scheduled before the court of first instance was cancelled after his lawyers published a press release.

4. On 1 September 2014 the complaint under Articles 6 and 10 of the Convention concerning the absence of an oral hearing was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1924 and lives in Cologne. His father was a pharmaceutical entrepreneur who had owned property in the Soviet Occupied Zone of Germany which was subject to expropriation measures in 1946 and 1947, after an administrative body classified him as a “Nazi activist”, “Nazi criminal” and “person profiting from the war”. After Germany’s reunification, the applicant’s application for restitution of the property under the Property Act (Vermögensgesetz) proved unsuccessful.

6. In 2006 the applicant initiated proceedings under the Criminal Rehabilitation Act (Strafrechtliches Rehabilitierungsgesetz) on behalf of his late father. He claimed that the expropriation and other measures had a penal character, although his father’s guilt had been determined not by a court but by an administrative body. He submitted a vast number of documents, claiming that the historical background of the measures taken under the Soviet occupation command had to be evaluated anew. In particular, the 1946 and 1947 provisions on which the measures against his father had been taken could now be qualified as criminal prosecution. New research had shown that their objective was to punish individual Germans for alleged wrongdoing. The applicant requested, inter alia, that the 1946 decisions to find his father guilty of being a Nazi and the subsequent decisions to expropriate him and confiscate his personal property and the property belonging to his company be declared contrary to the rule of law and hence void. According to the applicant, the value of his restitution claims amounted to about ninety million euros.

7. On 26 June 2008 the Dresden Regional Court fixed a public hearing for 19 August 2008, as requested by the applicant.

8. On 21 July 2008 the applicant’s lawyers published a press release under the following title:

“Turnaround in the assessment of the Communist industrial reform? For the first time the Dresden Regional Court discusses a criminal rehabilitation application at an oral hearing.”

In the press release the lawyers explained, in particular, that until that time the domestic courts had seen the objective of the measures in question as motivated by economic policy, that is, having the purpose of modifying the prevailing ownership structure. They presented the fact that the Regional Court had fixed an oral hearing as a potential turning point in domestic case-law and announced that they would explain orally and in detail at the hearing what the so-called “economic reform” had really been about. At the same time they communicated the date, time and place of the hearing.

9. On 8 August 2008 the Regional Court cancelled the hearing foreseen for 19 August and set a time-limit for written procedure ending on 15 September 2008. It found that, according to section 11 § 3, first sentence, of the Criminal Rehabilitation Act, a decision should generally be taken without holding an oral discussion. The date for a hearing, according to section 11 § 3, second sentence, of the Criminal Rehabilitation Act (see paragraph 13 below) had been set to give the applicant the opportunity to illustrate (erläutern) his legal opinion, which conflicted with that of the Regional Court and the Dresden Court of Appeal and was supported by particularly extensive factual submissions. Making use of its margin of appreciation, the Regional Court refrained from holding a hearing since, contrary to its prior opinion, there was no longer any additional benefit to be gained for dealing with the case. In fact, the scheduling of the hearing had been used to create the impression in a press release, also published on the internet, that by calling a hearing the Regional Court had indicated that it was abandoning its settled case-law. Furthermore, the press release had announced that the applicant would use the hearing to “reveal an important part of contemporary history”. This indicated that the hearing was to be used as a public forum. Against this background, the court refrained from holding a hearing.

10. On 24 August 2009, following unsuccessful claims by the applicant that the judges were biased, the Regional Court rejected the applicant’s request. It held that the measures taken against the applicant’s father were not of a penal character. The expropriation measures did not result in further consequences to his detriment. Contrary to the applicant’s submission, nothing indicated that an arrest warrant had been issued in 1947. The applicant’s father’s loss of his electoral rights, his business licence and his personal assets had been a necessary consequence of the expropriation.

11. On 26 November 2010 the Dresden Court of Appeal, without holding an oral hearing, dismissed the applicant’s appeal, fully endorsing the Regional Court’s reasons. It added that the documents submitted proved neither the penal character of the measures in question nor that there had been an arrest warrant. An oral hearing was not necessary as the documents presented were sufficient for the case to be assessed.

12. By decision of 19 November 2013 the Federal Constitutional Court, without providing reasons, declined to consider the applicant’s constitutional complaint, in which he had alleged violations of his right to an effective remedy, his right to be heard and his personality rights (file no. 2 BvR 1511/11).

II. RELEVANT DOMESTIC LAW

13. The relevant provisions of the Criminal Rehabilitation Act read as follows:

Section 1

“(1) A criminal law ruling of a German court on the territory specified in Article 3 of the Unification Treaty (“Accession” Territory) in the period between 8 May 1945 and 2 October 1990 shall be declared in breach of the rule of law and hence annulled (rehabilitation) in as much it is incompatible with the essential principles of a liberal order governed by the rule of law,

...”

Section 3

“(1) The annulment of a decision according to section 1 constitutes a claim according to this Act.

(2) If a decision to confiscate or expropriate property is annulled, restitution claims are granted according to the Property Act or the Investment Priority Act.”

Section 11

“...

(3) The court, as a rule, decides without holding an oral hearing. An oral hearing may be held if the court finds it necessary to establish the facts or for any other reason.

...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

14. The applicant complained that by taking decisions without holding a hearing, the domestic courts violated his right to an oral hearing as provided in Article 6 § 1 of the Convention, which – as far as relevant – reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by a ... tribunal ...”

15. The Court, at the outset, observes that the instant case does not involve criminal charges against the applicant. The aim of the applicant’s request to the Dresden Regional Court was essentially to rehabilitate his father’s reputation and have annulled the decisions to expropriate and confiscate his father’s property according to section 1 and section 3 § 1 of the Criminal Rehabilitation Act (see paragraph 13 above). The Court has frequently held that the right to enjoy a good reputation is a “civil right” in the meaning of Article 6 § 1 (see, among other authorities, Werner v. Poland, no. 26760/95, § 33, 15 November 2001). Likewise, proceedings with the aim of reversing an expropriation by the State are considered a “determination of civil rights” (see Aldo and Jean-Baptiste Zanatta v. France, no. 38042/97, §§ 24‑25, 28 March 2000 with reference to Guillemin v. France, 21 February 1997, Reports of Judgments and Decisions 1997‑I). The Court is thus satisfied that the rights in question were “civil” in character, in the autonomous sense of Article 6 § 1 of the Convention. This provision is therefore applicable to the proceedings in issue and this has not been disputed before the Court. On the other hand, the applicant’s contention that it has been violated was contested by the Government.

A. Admissibility

16. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The applicant’s submissions

17. The applicant submitted that his right to a public hearing under Article 6 § 1 of the Convention had been breached. Relying on the Court’s case‑law in Fredin v. Sweden (no. 2) (23 February 1994, Series A no. 283‑A), and Allan Jacobsson v. Sweden (no. 2) (19 February 1998, Reports of Judgments and Decisions 1998‑I) he was of the view that only exceptional circumstances could justify not holding an oral hearing. He stressed that his case before the domestic courts involved numerous questions of fact and difficult legal issues which were of fundamental significance. Therefore, he saw no reason to dispense with a hearing.

18. The applicant further submitted that – according to section 11 § 3, second sentence, of the Criminal Rehabilitation Act – a hearing may only be held if the court finds it necessary. The fact that the Regional Court decided to hold a hearing showed that this had been necessary, and was not meant as a mere courtesy.

2. The Government’s submissions

19. The Government submitted that there was no breach of Article 6 because, in the particular circumstances of the case, an oral hearing before the domestic courts had not been necessary. Referring to the Court’s case‑law in Pákozdi v. Hungary (no. 51269/07, § 27, 25 November 2014) they found an oral hearing dispensable where the court was able to clear up the matter fairly and reasonably on the basis of the parties’ submissions and other written materials. The possibility of refraining from hearing the concerned party in person was not limited to rare, exceptional cases (with reference to Fexler v. Sweden, no. 36801/06, § 57, 13 October 2011). Referring to the Court’s case-law in Suhadolc v. Slovenia ((dec.), no. 57655/08, 17 November 2011) the Government argued that instances in which the domestic law places the question of whether or not to hold a hearing at the discretion of the courts having jurisdiction, complied with the Convention. In his application to the Regional Court the applicant had not raised any question of fact or law which could not be dealt with adequately on the basis of the file. The documents handed in were not sufficient proof to alter the case-law of the Regional Court as to the general assessment of the case, particularly as regards the character of the expropriation proceedings and the issue of whether the applicant’s father had been subject to an arrest warrant.

20. Furthermore, the Government took the view that the Regional Court was justified in its concern that the attorneys would abuse the imminent hearing as a “public forum” and discuss expansively the circumstances of the expropriation measures taken at the time. It was clear that the applicant’s lawyers would not be willing to limit their statements to those aspects that the court considered important. Moreover, it was foreseeable that the applicant’s lawyers would not allow themselves to be stopped by the court limiting their right to speak. Likewise, it was obvious that an audience, comprised of persons who had also been affected by expropriation, would be irritated should it become aware that the court considered the statements already announced by the applicant’s lawyers to be irrelevant. Accordingly, the court had to fear that the intention was to expose it to “pressure from the street” and, moreover, abuse the hearing for purposes of publicity.

21. Lastly, the Government argued that the fact that a hearing had already been scheduled did not grant the applicant a right to demand a hearing. In their view, it was entirely at the discretion of the Regional Court to decide whether to hold a hearing and, consequently, whether to cancel it.

3. The Court’s assessment

22. The Court has established in its case-law that, in proceedings before a court of first and only instance, the right to a “public hearing” within the meaning of Article 6 § 1 entails an entitlement to an “oral hearing” unless there are exceptional circumstances that justify dispensing with such a hearing (see Göç v. Turkey [GC], no. 36590/97, § 47, ECHR 2002‑V and the case-law therein). By rendering the administration of justice transparent, an oral hearing in public contributes to the achievement of the aim of Article 6 § 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention (seeMehmet Emin Şimşek v. Turkey, no. 5488/05, § 28, 28 February 2012; Szücs v. Austria, 24 November 1997, § 42, Reports of Judgments and Decisions 1997‑VII). In proceedings before two instances, in general, at least one instance must provide such a hearing if no such exceptional circumstances are at hand (see Salomonsson v. Sweden, no. 38978/97, § 36, 12 November 2002;Alatulkkila and Others v. Finland, no. 33538/96, § 53, 28 July 2005).

23. Regarding civil proceedings, the Court has clarified that the character of the circumstances that may justify dispensing with an oral hearing essentially comes down to the nature of the issues to be decided by the competent national court, not to the frequency of such situations. This does not mean that refusing to hold an oral hearing may be justified only in rare cases (see Miller v. Sweden, no. 55853/00, § 29, 8 February 2005).

24. The Court has accepted exceptional circumstances in cases where the proceedings concerned exclusively legal or highly technical questions (see Schuler-Zgraggen v. Switzerland, 24 June 1993, § 58, Series A no. 263; Varela Assalino v. Portugal (dec.), no. 64336/01, 25 April 2002; and Speil v. Austria (dec.), no. 42057/98, 5 September 2002). A hearing may also not be required when the case raises no questions of fact or law which cannot be adequately resolved on the basis of the case-file and the parties’ written observations (see Döry v. Sweden, no. 28394/95, § 37, 12 November 2002).

25. Having regard to the above consideration, the Court will examine whether there are any exceptional circumstances which justified dispensing with an oral hearing on the applicant’s rehabilitation claim.

26. The Court observes that the domestic courts found no reason to investigate the case further or to call witnesses as they found the facts sufficiently established. However, the Court also notes that there were facts in dispute, namely whether an arrest warrant had been issued against the applicant’s father and whether the sanctions against him had been meant to persecute him for his deeds during the time of National Socialist rule, having a penal character, or whether they had rather been political measures to establish a new economic system.

27. The Court also takes note that domestic law and practice concerning proceedings under the Criminal Rehabilitation Act foresee an oral hearing as an exception from the general rule, which is not to hold such a hearing. It is left to the discretion of the domestic courts to evaluate whether there are reasons to hold a hearing. It has not been disputed that the Dresden Regional Court had never held a hearing in these matters before. Notwithstanding, in the instant case the Regional Court had fixed a date for such a hearing. The reasons for this were, as outlined in the Regional Court’s decision of 8 August 2008 (see paragraph 9 above), the applicant’s particularly voluminous factual submissions and to give him the opportunity to illustrate his legal opinion. The Court discerns that the Regional Court at that time took the view that such a hearing was necessary, and the Court has no reason to hold otherwise.

28. In view of the foregoing, the Court finds that no exceptional circumstances to dispense with an oral hearing, within the meaning of its case‑law, have been shown to exist at the time the hearing was scheduled.

29. It remains to be examined whether exceptional circumstances arose after 26 June 2008, the date on which the hearing was fixed.

30. The Regional Court’s decision of 8 August 2008 indicates that the only new aspect which had emerged in the meantime had been the applicant’s turning to the public via a press release. The Court observes that the Regional Court disagreed with the content of the press release as regards the interpretation of why the Regional Court had scheduled a hearing, and therefore assumed that the matter could no longer be discussed with the applicant and his lawyers. However, the Court does not consider the Regional Court’s disagreement with the way the applicant’s lawyers handled their relations with the public an “exceptional circumstance” within the meaning of the Court’s case‑law. The Court is not persuaded either by the Government’s argument, that the Regional Court’s fear that the audience of the public hearing might be irritated by the court’s legal opinion, justified cancelling the meeting. It has not been shown that disturbances were likely which would have rendered a public hearing impossible and which could not be dealt with by the measures generally available to a court in Germany.

31. The Court further notes that the reason for systematically not holding hearings in cases determining claims under the Criminal Rehabilitation Act was to simplify and accelerate the proceedings in favour of the victims of the GDR regime (see motivation to the draft legislation in German Federal Parliament documents (BTDrucks), no. 12/1608, p. 2). However, in the instant case the hearing was cancelled only eleven days before the sitting. It has not been shown that this cancellation enabled the applicant’s case to be decided more speedily or was necessary in order to reduce the courts’ general case‑load.

32. The foregoing considerations are sufficient for the Court to conclude that there were no exceptional circumstances to justify dispensing with a public hearing and cancelling the initially scheduled hearing.

33. There has accordingly been a violation of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

34. The applicant complained of a violation of his right to freedom of expression. He relied on Article 10 of the Convention.

35. The Government objected that the applicant had not exhausted domestic remedies and disputed that the applicant’s constitutional complaint included this particular complaint.

36. The applicant submitted that he had raised the complaint in essence in his constitutional complaint, where he stated that the purpose of the Regional Court in cancelling the oral hearing was to suppress public discussion of the matter.

37. The Court observes that neither in the summary of facts nor in the legal arguments of the applicant’s constitutional complaint did the applicant claim an interference with his right to freedom of expression. The constitutional complaint was based on the allegation that the applicant’s rights to an effective remedy, his right to be heard and his personality rights had been infringed. The mere claim that the Regional Court was averse to a public discussion does not imply an allegation regarding the applicant’s right to freedom of expression. Consequently, the Federal Constitutional Court was not placed in a position to rule on this matter.

38. It follows that regarding the complaint under Article 10, the applicant has not exhausted domestic remedies as prescribed in Article 35 § 1 of the Convention. This part of the application must therefore be rejected in accordance with Article 35 § 4.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

39. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

40. The applicant claimed ninety million euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage.

41. The Government commented that there was no causal link between the violation alleged and the pecuniary damage claimed by the applicant. They further contended that the finding of a violation constituted sufficient reparation in respect of any non-pecuniary damage suffered.

42. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand it considers, ruling on an equitable basis, that the applicant should be awarded EUR 3,000 in respect of non-pecuniary damage.

B. Costs and expenses

43. The applicant also claimed EUR 244,593 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.

44. The Government contested the claim. They submitted that the costs of the applicant’s representation in the domestic proceedings had not been caused by the alleged violations, as they would have been incurred in any event. Moreover, the amounts claimed were excessive.

45. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, as regards the costs claimed for the domestic proceedings, the applicant has not proved that specific costs were incurred in relation to the request for a public oral hearing and the complaint that no such hearing had taken place (compare Ohneberg v. Austria, no. 10781/08, § 41, 18 September 2012). Consequently, the Court dismisses the applicant’s claims in this connection.

46. As to the costs of the proceedings before the Court, it notes that the applicant, who was represented by counsel, did not have the benefit of legal aid and was only partly successful. It considers it reasonable, having regard to similar cases (compare Koottummel v. Austria, no.49616/06, § 32, 10 December 2009), to award him EUR 2,500 under this head, plus any tax that may be chargeable to the applicant on this amount. The amount includes VAT.

C. Default interest

47. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint under Article 6 admissible and the remainder of the application inadmissible;

 

2. Holds that there has been a violation of Article 6 of the Convention;

 

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 9 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekGanna Yudkivska
RegistrarPresident

 

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of the Court, the separate opinion of Judge Yudkivska is annexed to this judgment.

 

 

G.Y.
C.W.


CONCURRING OPINION OF JUDGE YUDKIVSKA

I support both the conclusions and the reasoning of the present judgement. My only point of disagreement relates to paragraph 15, in which the majority finds that Article 6 is applicable to the proceedings in question because the “right to enjoy a good reputation is a ‘civil right’”. There is nothing wrong with this statement in itself; however, to my mind it is inapplicable to the present case.

The applicant’s claim related not to his personal reputation but to the reputation of his father, who was classified as a “Nazi criminal” and a “person profiting from the war”. The Court’s position originates from the Commission’s decision in the case of Isop v Austria[1], in which the Commission found that “the right to enjoy a good reputation and the right to have determined before a tribunal the justification of attacks upon such reputation must be considered to be civil rights within the meaning of Article 6, paragraph 1”. Whether or not an individual can enjoy the reputation of a family member, and whether or not the enjoyment of that reputation can be considered as the individual’s civil right, has not been established clearly so far.

Several cases concerning the reputation of a deceased family member have been examined by the Court through the lens of Article 8. In the case of Putistin v. Ukraine the Court held that “[t]he question of whether the damage to the reputation of an applicant’s family can be considered an interference with the right to respect for the applicant’s private life was raised, but not finally decided ... The Court can accept ... 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”[2]. It also confirmed in Dzhugashvili v. Russia that the “reputation [of deceased private persons] as part and parcel of their families’ reputation remains within the scope of Article 8”[3]. For my learned colleague Sir Nicolas Bratza, however, “in the case of defamation ... the defamatory statement, while doubtless affecting the reputation of the deceased ancestor, has ... no direct impact on the private or family life of the descendants”[4].

The question remains whether the right to reputation of a family member is a civil right for the purposes of Article 6.

The different approaches to this matter in continental and common-law systems are known. The latter would embody the maxim “actio personalis moritur cum persona”; as explained by Judge Bratza, in his jurisdiction of origin “a cause of action for defamation does not survive the death of the alleged wrongdoer or that of the defamed person himself”[5]. By contrast, theBundesverfassungsgericht stated that “an individual’s death does not put an end to the State’s duty ... to protect him from assaults on his human dignity”[6].

The Venice Commission recently examined whether deceased persons have a right to dignity, and if so, which legal subjects should have the right to sue for defamation on behalf of a deceased[7]. It agreed that there is “the potential for defamatory material to cause distress and a sense of injustice for relatives and associates of the deceased”, which may be characterised as “secondary damage”. At the same time it was concerned that “the introduction of the idea of ‘secondary damage’ as a basis for a cause of action ... might result in either an infringement of the right to equality, if the cause of action is awarded to a predefined, limited set of people formally related to the deceased, or a risk of a substantial ‘chilling effect’ on would‑be speakers (journalists, publishers etc.), due to the expansion of standing to every person who argues the defamation adversely affected his/her interests”.

It also reviewed the Court’s hitherto very limited case-law on the matter and concluded that “recently the Court opened up a possibility for the relatives of a deceased person to claim that their rights had been affected by a defamatory publication concerning that person”. However, “the Court assigned to this interest a very limited scope”. The Venice Commission concluded that “the decision of the legislator not to give a cause of action to the relatives may appear justified, in the light of the principles which the ECtHR applies to cases under Article 10 of the Convention”.

Therefore, even accepting that an individual’s private life may be affected, in certain circumstances, by attacks on the reputation of a family member, the Court has never stated that the right to protect a family member’s reputation is a civil right. There is no European consensus regarding the possibility of having the reputation of a deceased family member defended in the courts, and it cannot be said, in my view, that the right to reputation of a deceased family member is a civil right.

Nevertheless, since the aim of the applicant’s claim was to receive monetary compensation – a pecuniary interest which brings the claim within the scope of Article 6 under its civil limb – I agreed that Article 6 was applicable and had been breached in the circumstances of the present case.

[1] Isop v. Austria, no 808/60, Commission decision of 8 March 1962, Yearbook 5, p. 108.

[2] Putistin v. Ukraine, no. 16882/03, § 33, 21 November 2013.

[3] Dzhugashvili v. Russia ((dec.), no. 41123/10, § 30, 9 December 2014.

[4] John Anthony Mizzi v. Malta, no. 17320/10, 22 November 2011, concurring opinion of Judge Bratza.

[5] Ibid.

[6] Mephisto, BVerfGE 30, 173, Federal Constitutional Court (First Division), 24 February 1971.

[7] Venice Commission, CDL-AD(2014)040, Amicus Curie Brief for the Constitutional Court of Georgia on the question of the defamation of the deceased, Opinion no. 784/2014, 15 December 2014. 

  

 

 

 

 

 

 

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