FIRST SECTION
CASE OF M.L. v. SLOVAKIA
(Application no. 34159/17)
 
 
JUDGMENT
 
Art 8 • Respect for private life • Dismissal of action against tabloids, which published unverified tawdry statements on, and pictures of, applicant’s son, a priest convicted of sexual offences, years after his death • Domestic court failure to carry out balancing exercise on Articles 8 and 10 rights • Failure to assess relevant elements and available evidence • Intrusive information on son’s intimate sphere of private life and publication of picture, not justifiable by general interest considerations
 
 
STRASBOURG
14 October 2021
 
FINAL
 
14/01/2022
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of M.L. v. Slovakia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Ksenija Turković, President,
 Péter Paczolay,
 Krzysztof Wojtyczek,
 Alena Poláčková,
 Raffaele Sabato,
 Lorraine Schembri Orland,
 Ioannis Ktistakis, judges,
and Renata Degener, Section Registrar,
Having regard to:
the application (no. 34159/17) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Ms M.L. (“the applicant”), on 5 May 2017;
the decision to give notice of the application to the Slovak Government (“the Government”);
the decision not to have the applicant’s name disclosed;
the parties’ observations;
Having deliberated in private on 21 September 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present case concerns the protection of the applicant’s private and family life in defamation proceedings that the applicant instituted against several newspaper publishers which had published articles about her deceased son, accompanied by pictures of him. THE FACTS
2. The applicant was born in 1948 and lives in Čierne Pole. She was represented by Mr P. Kerecman, a lawyer practising in Košice. 3. The Government were represented by their co-Agent, Ms M. Bálintová, from the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant’s late son, who had been a Roman Catholic priest, had been convicted, in 1999, of sexual abuse and threatening the moral education of young people (on account of having attempted to have non‑consensual oral sex with a minor boy) and, in 2002, of disorderly conduct (on account of having had consensual oral sex with an adult man in a public place). Those criminal convictions had become spent (zahladenie) in 2001 and 2003 respectively, because the applicant’s son had complied with the conditions of his conditional sentence subject to a probationary period. He died in 2006. 6. Two years after the applicant’s son’s death, between March and May 2008, three tabloid newspapers published articles about his conviction for sexual abuse and a possible link between it and his supposed suicide. The articles were entitled “Priest confessed to abuse of minor boys. Secret of priest’s suicide”, “Priest abused Roma boys. He confessed before his suicide”, and “Protected priests. The Church provided a guarantee to get a paedophile priest out of prison”. The articles asserted that before his supposed suicide the applicant’s son had confessed to his acts and his bisexual orientation; that the bishop to whom he was subordinate had been informed of the criminal charges, following which the Church had offered a guarantee of his good behaviour; and that by virtue of that kind of guarantee, the applicant’s son had either been released, not put in detention, or not convicted. The articles, one of which was accompanied by pictures of the applicant’s son, mentioned his full name and many details of his private and intimate life, some of which related to the distant past, which were described in expressive terms and presented as stemming either from the criminal files or from the statements of people who had been approached by the journalists (including two of the applicant’s son’s victims, the above‑mentioned bishop, a former mayor and some of the applicant’s son’s former parishioners). 7. On 27 August 2008 the applicant instituted proceedings against the publishers of the three newspapers, seeking post-mortem protection of her late son’s personal integrity on the basis of Article 15 of the Civil Code, as well as protection of her own personal integrity on the basis of Article 11 of the Civil Code. She argued that although her son had confessed to the offence of disorderly conduct, he had never done so with regard to sexual abuse; that one of his purported victims had retracted his accusations of abuse; and that both convictions had become spent. She further asserted that she was not aware of any guarantee offered in the proceedings against her son, that no such information appeared from the relevant decisions and that her son had died as a result of drug intoxication and medical negligence. In the applicant’s view, the articles contained many false and misleading allegations which did not correspond to the criminal courts’ findings, and contained disproportionate value judgments characterising her son as a criminal and his acts as “disgusting paedophile orgies”, the aim of which was to cause a sensation and increase the newspapers’ sale figures. The applicant claimed that those allegations and judgments interfered with both her late son’s and her own privacy rights; moreover, since their publication she had faced adverse reactions and questions from her neighbours and people who had known her son, which significantly affected her period of mourning and contributed to a deterioration in her health. 8. In the framework of the above-mentioned proceedings, the Michalovce District Court obtained the observations of all of the parties and heard the applicant, her relatives, the defendants’ representatives and several witnesses. The relevant records show the following information. 9. The mayor whose quotes were referred to in one of the articles denied having spoken to any newspapers. 10. The authors of the articles mainly stated that they could not remember concrete sources or details, and that they had essentially based the articles on the Internet and other media, on the criminal file, and their personal communication with the bishop and unidentified people living in the parishes concerned, whose statements were deemed to be an expression of their opinions needing no verification. The journalist M.K. referred to a very good source who had provided him with a written document, and to a police record concerning the questioning of the applicant’s son; he claimed to have verified the authenticity of the written document but did not remember any details. M.K. asserted that he had also contacted police spokespersons and had sent an email to the bishop’s office, but he was not sure whether he had saved their exchange (it is not clear from the file whether M.K. complied with the District Court’s request to submit a copy of that exchange). According to the journalist, the story was unusual and interesting, and he had wanted to inform people that even in such a case, the Church had protected the convicted priest and had not removed him; he had wanted to point out in some way the situation within the Church. On the other hand, the journalist M.B. asserted that she had not wanted to discuss or assess the situation within the Church but to provide a forum for people’s reactions to the serious facts concerned. She stated that all the facts that she had mentioned in the article would have been confirmed by the bishop. As to the question of the basis for the value judgment alleging that the applicant’s son had committed suicide, probably under the weight of a bad conscience, the journalist A.H. replied that she did not remember whether she had had any support for that information and, if she did, where it had come from. 11. According to a report by the bishop’s office, requested by the court and dated 4 October 2011, that office had not received any questions concerning the applicant’s son from the journalist M.K. or from any other newspapers. 12. By a judgment of 2 May 2012, the District Court ordered each of the defendants to publish a formal apology to the applicant for having published untrue allegations about her late son, but dismissed her financial claims. The court stated that the applicant’s son’s criminal convictions were indisputable and that although they had become spent, that legal fiction could not be considered absolute since there were situations where those convictions could still be taken into account. The court further considered that the applicant’s son’s criminal prosecution had been of public interest and that the journalists had been entitled to cover the facts that undeniably appeared from the criminal files. However, the applicant’s application had to be partially granted because the articles contained untrue allegations, concerning, inter alia, the guarantee offered by the Church, which had interfered with the applicant’s late son’s personal integrity. Those allegations were mainly based on a record of the applicant’s son’s statement before an unidentified authority, of which only a partial copy had been submitted and which had not proved to be authentic since it did not correspond to any record from the criminal proceedings; the allegations were also based on the statements of other persons interviewed by the journalists, for the dissemination of which the defendants bore objective responsibility. On the other hand, it had not been objectively proven that the applicant’s own integrity or dignity had been affected, given that she had not lived with her son, who had worked a long way from where she lived. Even if the applicant’s son had been entitled to non-pecuniary damages, which was not the case here owing to his reprehensible behaviour, that right was of a personal character and could not be transferred to the applicant, hence the dismissal of that part of her action. 13. The applicant appealed, mainly challenging the decision not to order an apology for the publication of the pictures of her late son or any non‑pecuniary damages. An appeal was also lodged by the defendants. 14. On 17 September 2013 the Košice Regional Court quashed the District Court’s judgment, on the ground that the decision ordering the defendants to publish an apology to the applicant was not supported by the evidence. In its view, the District Court should have assessed whether the facts described in the articles reflected what had really happened, instead of examining the authenticity of the copy of the record of the applicant’s late son’s statement. Therefore, the District Court’s judgment had lacked comprehensive reasoning. 15. By a new judgment of 24 February 2014 the District Court dismissed the applicant’s action and ordered her to pay the costs incurred by the defendants. It observed that, as a parish priest, the applicant’s son could not be treated as an ordinary person whose personal integrity required higher protection, but rather as a public figure expected to be more tolerant to criticism. As the criminal prosecution of the applicant’s son had been of public interest, and with regard to cases of sexual abuse by clergymen that had occurred in the past and the attitude of the Roman Catholic Church to them, the court found that the journalists had been entitled to cover the facts that undeniably appeared from the criminal files, and they had been entitled to publish the applicant’s late son’s picture in accordance with Article 12 § 3 of the Civil Code. While it was true that the articles had also relied on other sources, the court considered that, seen in the light of the applicant’s son’s conviction, those sources could be deemed credible. In particular, as to the copy of the record of the applicant’s son’s statement submitted by one of the defendants, the court considered that the reason why that record did not appear in the criminal files was that it had probably been made before the opening of the prosecution of the applicant’s son. In any event, the facts described in that record were not considered to be fabricated because they corresponded to the facts on the basis of which the applicant’s son had been convicted. The court further noted that the bishop’s office had denied receiving questions from any newspapers, and it had not been proven that the bishop had offered a guarantee on behalf of the applicant’s son; nevertheless, it appeared from the attitude of the bishop’s office that they had attempted to help the applicant’s son as much as possible. 16. In a subsequent appeal, the applicant mainly challenged the District Court’s failure to duly respond to all her arguments as well its erroneous findings reached without the submission of any new evidence. In her view, the court had also failed to distinguish between allegations of fact and value judgments and to carry out a proportionality test. 17. On 3 June 2015 the Regional Court upheld the judgment of the District Court, except for the decision on costs, which was quashed and remitted back to the District Court (the final decision on that issue was delivered, in the applicant’s favour, on 17 May 2017). It considered that the dismissal of the applicant’s action was based on correct factual and legal findings, and subscribed to the District Court’s opinion that the facts described in the articles, including those emanating from sources other than the applicant’s son’s criminal convictions, could be considered credible. 18. The applicant challenged the Regional Court’s judgment by way of a constitutional complaint, alleging a violation of her rights under Articles 6 and 8 of the Convention, recapitulating her previous arguments and referring to the relevant criteria established by the Court’s case-law. She further claimed that the Regional Court had failed to give a duly reasoned decision and had reached arbitrary conclusions which were not supported by credible evidence. 19. On 8 February 2017 the Constitutional Court declared the complaint inadmissible as manifestly-ill founded. It found that the Regional Court had duly dealt with the applicant’s arguments and that its findings were sufficiently reasoned and acceptable from a constitutional point of view. It further reiterated that, pursuant to its established case-law, a general court could not bear “secondary liability” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a violation of procedural rules. As no violation of any procedural rule had been established, the whole constitutional complaint had to be dismissed as manifestly ill-founded. RELEVANT LEGAL FRAMEWORK
20. The right to protection of a person’s personal integrity is guaranteed by Articles 11 et seq. of the Civil Code (Law no. 40/1964 Coll., as amended). The relevant provisions are summarised in the Court’s judgment in Radio Twist a.s. v. Slovakia (no. 62202/00, §§ 33-36, ECHR 2006‑XV). 21. In addition, Article 15 of the Civil Code provides that after the death of an individual, the right to protection of his or her personal integrity may be asserted by his or her spouse or children or, if there are no spouse and children, by his or her parents. THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
22. The applicant complained that the dismissal of her action against the newspaper publishers amounted to a violation of her right to respect for her private life, as guaranteed by Article 8 of the Convention, the relevant parts of which read as follows:
“1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of the rights and freedoms of others.”
Admissibility
23. It is clear from the Court’s case-law (see Hadri-Vionnet v. Switzerland, no. 55525/00, § 51, 14 February 2008, with further references; Editions Plon v. France, no. 58148/00, § 46, ECHR 2004‑IV; and Putistin v. Ukraine, no. 16882/03, § 33, 21 November 2013), and the Government accepted, that dealing appropriately with the dead out of respect for the feelings of the deceased’s relatives falls within the scope of Article 8 of the Convention. 24. The Court further considers that the effect of the statements made in the articles in question about the applicant’s son rose above the “threshold of severity” required by the Court’s case-law (see Denisov v. Ukraine [GC], no. 76639/11, § 112, 25 September 2018); thus the applicant’s private life has been affected to a degree attracting the application of Article 8. That provision is therefore applicable in the circumstances arising in the present case. 25. The Court further notes that the application is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

26. The applicant argued that the domestic courts had misapplied the relevant criteria established by the Court’s case-law and had failed to achieve a fair balance between the competing rights at stake. Considering that the question of whether the disseminated information was of public importance could only be assessed on the basis of objective criteria, she observed that neither the subjective perception of the journalists, nor the fact that priests’ misconduct had been at that time subject to public discussion, gave any justification for disseminating false statements and inappropriate value judgments concerning her son. 27. The applicant further emphasised that her son had been a simple parish priest until his death in 2006, hence he had no longer been active in public life at the time of the publication of the articles and could thus not have been considered a person of public interest; moreover, his criminal convictions had occurred a long time ago, and the time interval that had passed had weakened any potential interest of the public in receiving such information. Nor could the involvement of the Church in her son’s case be considered a matter of public concern, as maintained by the Government, since her son had never been in custody and it had not been proven that any guarantee had been offered on his behalf by the Church. 28. In the applicant’s view, not only did the articles fail to pursue any legitimate aim but their tabloid style and striking language (for example “secrets of a man in a cassock”, “shocking information”, and “disgusting paedophile orgies”) clearly indicated that their authors’ purpose was to shock, meet deadlines and increase sales figures. Also, unlike in Putistin (cited above), the articles in question were directly concerned with her late son’s private and sexual life, his criminal convictions and the reasons for his death, and had identified him using his full name and picture. Although the applicant had not been directly mentioned, the articles and the subsequent negative reactions to them by the people around her had had significant detrimental effects on her, particularly as she was known to be the mother of the deceased, bore the same family name as him, and lived in the village mentioned in the article. 29. Lastly, the applicant challenged the Government’s argument that the journalists had tried to verify the information provided by sources other than the criminal files, and had acted in good faith. Referring to the records of the court hearings (see paragraph 8 above), she noted that the journalists had merely asserted that they had believed, or did not remember, their sources, and that the journalists’ statements concerning their contacts with the bishop’s office and a mayor had not been proved to be true. Moreover, the authenticity of the only document submitted by the journalists, that is a copy of a record of her late son’s questioning, which the courts had regarded as key evidence, was doubtful. 30. The Government submitted that the domestic courts had duly applied the relevant criteria formulated by the Court and had struck a fair balance between the applicant’s and the newspaper publishers’ rights. In their view, it followed from the journalists’ statements before the courts that they had considered the information published to be a matter of public concern and that they had attempted to verify by different means the facts provided by their sources. The Government were themselves of the view that, in so far as the articles related to the moral profile of a Roman Catholic priest, that is a person in the public eye, and to the Church’s attitude to him, they constituted a contribution to a debate of public interest, and that the journalists’ conduct could be regarded as being bona fide. 31. The Government further argued that, although the applicant’s approach as a mother was understandable, she had mainly complained of disrespect to the memory of her son, which demonstrated her bias. 32. With regard to the time interval between the applicant’s son’s criminal convictions and death, and the publication of the articles, the Government contended that it followed from the Court’s case-law (the Government cited Éditions Plon, cited above, § 53) that the more time that had elapsed, the more the public interest in an open discussion prevailed over the interest in protecting the rights of the deceased person. 33. Lastly, the Government argued that the applicant, who had not been mentioned in the articles in dispute, had not been directly affected by them, although their impact and effect on her was admittedly greater than in Putistin (cited above). The articles had contained only the facts which were deemed significant for assessing the applicant’s son’s morals and which had originated mainly from his criminal convictions or the statements of third persons; as such, their content was not unacceptable.

Article of the Convention at issue: Article 8
Outcome: violation