Communicated on 3 October 2016

FOURTH SECTION

Application no. 57676/11 Liudmila PETKEVIČIŪTĖ against Lithuania lodged on 2 September 2011

STATEMENT OF FACTS

The applicant, Ms Liudmila Petkevičiūtė , is a Lithuanian national who was born in 1956 and lives in Vilnius.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The applicant ’ s father ’ s book

In September 2003 the applicant ’ s father V.P. published a book entitled “The Ship of Idiots” ( Durnių laivas – hereinafter “the book”) in which he presented his memoirs of various events from 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) who had been a minister in the Lithuanian Government in 1941 and whose son V.L. had been a prominent Lithuanian politician since the 1980s. The book contained the following statements, in which V.L.-Ž. was referred to as “[L.] senior ” or “the patriarch” (hereinafter “the disputed statements”):

“[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 thrown out into the streets. Moreover, the pharmacists were sued because ‘ the patriarch ’ did not find the six-metre oak bench in the veranda 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 . )

2. Criminal proceedings

After the publication of the book, V.L. lodged a complaint with the Prosecutor General ’ s Office (hereinafter “the prosecutor”), asking to open a pre-trial investigation against V.P. for defamation of his late father. On 21 October 2003 the prosecutor opened the investigation.

On 10 October 2005 the Vilnius City First District Court acquitted V.P. of defamation on the grounds that that offence under Article 154 § 2 of the Criminal Code could be committed only against a living person, whereas V.L.-Ž. had already died when V.P. ’ s book had been published. The court noted that V.P. ’ s actions may have constituted the crime of contempt for the memory of a deceased person under Article 313 § 2 of the Criminal Code, but that charge had not been included in the indictment.

V.L., V.P. and the prosecutor all submitted appeals against that judgment, 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. On 20 June 2006 the Supreme Court upheld the judgment of the Vilnius Regional Court.

On 9 August 2006 the prosecutor discontinued the pre-trial investigation. The prosecutor considered that there had been sufficient evidence to charge V.P. with contempt for the memory of a de ceased person under Article 313 § 2 of the Criminal Code, but that criminal prosecution for that offence had become time-barred.

3. Civil proceedings

In June 2007 V.L. submitted a civil claim against V.P. before the Vilnius Regional Court. He asked the court to oblige V.P. to publicly retract the disputed statements and to award him non-pecuniary damages of 100,000 Lithuanian litai (LTL – approximately 29,000 euros (EUR)). V.L. submitted that the disputed statements had been erroneous and insulting to the honour and dignity of his late father.

V.P. disputed the claim, submitting that the book had been a product of literary creation made up of his subjective memories. He also submitted that the book had been written in figurative and exaggerated language which could be interpreted in many different ways. Thus, V.P. argued that the disputed statements should be regarded as value judgments and not facts. In any event, he submitted that when writing the book he had relied on numerous historical sources, as well as on his own personal experience, so the disputed statements had been sufficiently factually accurate. V.P. also contended that both V.L.-Ž. and V.L. had been politicians and prominent public figures, so they had had to tolerate higher levels of criticism.

On 10 December 2008 V.P. died. The Vilnius Regional Court adjourned the examination of the case until V.P. ’ s legal successors were identified. 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 two brothers, who had been recognised as V.P. ’ s official heirs.

Subsequently V.L. amended his claim. In the amended claim he 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, and to award him symbolic non-pecuniary damages of LTL 1 (EUR 0.29).

In their reply to the claim the applicant and her brothers asked the court to discontinue the case. They argued that the disputed statements had been based on their father ’ s memories and subjective opinions, so the applicant and her brothers should not be required to prove the truthfulness of those statements. They also argued that the obligation to compensate for the damage allegedly caused by a literary work was a personal obligation of the author and could not be transferred to his heirs.

On 23 December 2009 the Vilnius Regional Court partly upheld V.L. ’ s civil claim. It found that the disputed statements had been presented as statements of fact about V.L.-Ž. and not merely value judgments: they implied that certain events had actually happened – for example, that V.L. ‑ Ž. had been recruited by Soviet forces and had collaborated with them, or that he had expressed support for Hitler ’ s ideology. Accordingly, the court held that those statements should have had a sufficient factual basis. The court examined a number of historical documents which had been collected by the prosecutor in the criminal proceedings instituted at V.L. ’ s request, as well as those previously submitted by V.P. himself, but could not find any substantiation for any of the disputed statements.

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. It considered that in the historic context of Lithuania allegations of collaboration with Soviet security services or of support for Nazi ideology were evidently defamatory not only in respect of V.L.-Ž. but also in respect of his family, including V.L., who was a prominent politician himself. As a result, the court concluded that the disputed statements had been erroneous and insulting to the honour and dignity of V.L.-Ž. and V.L.

The court also dismissed the objection submitted by the applicant and her brothers that the case concerned personal obligations of their father V.P. It held that domestic law provided several different remedies for victims of defamation in published statements. On the one hand, the victim may ask the court to oblige the author of the work to retract the disputed statements, and that would be a personal obligation of the author which could not be transferred to his or her heirs. On the other hand, the victim may ask the court to declare that the disputed statements were false and defamatory, that is to say to ask that an objective assessment of those statements be made. Such an assessment could be made without the involvement of the author, and thus it would not concern a personal obligation of the author that could not be transferred to his or her heirs. Accordingly, the court held that, since V.L. had made the latter request, domestic law permitted the transfer of civil liability to the author ’ s heirs.

As a result, the Vilnius Regional Court upheld V.L. ’ s claim, declaring that the disputed statements were erroneous and insulting to his and his father ’ s honour and dignity. However, it dismissed the claim for non ‑ pecuniary damages as time-barred.

The applicant and her brothers submi tted an appeal but on 13 August 2010 the Court of Appeal upheld the first-instance judgment. The Court of Appeal considered that the lower court had correctly assessed the facts of the case and had correctly concluded that the disputed statements had amounted to statements of fact and not value judgments, that they had not been supported by any available evidence, and that they had been insulting to V.L. ’ s and his father ’ s honour and dignity. The court noted that even though V.L.-Ž. and V.L. were public figures and had to tolerate greater levels of criticism, this could not justify the deliberate spreading of erroneous information, as in the disputed statements. It also noted that the applicant and her brothers had accepted their father ’ s inheritance, which included the rights to the book. Accordingly, the court considered that they had assumed any obligations and liabilities arising from the book. It also upheld the first-instance court ’ s findings that a declaration by a court that statements were erroneous and insulting to someone ’ s honour and dignity did not concern a personal obligation of the author and thus the civil liability could be transferred to the author ’ s heirs.

The applicant and her brothers then submitted an appeal on points of law but on 14 March 2011 the Supreme Court dismissed it. The Supreme Court underlined that freedom of expression could not be interpreted as protecting erroneous and defamatory statements even when they concerned a public figure. It also noted that the defendants had inherited all the rights, obligations and liabilities related to their father ’ s book, and that included the obligation to ensure that the erroneous and defamatory statements contained therein would no longer be reproduced.

B. Relevant domestic law and practice

1. Freedom of expression and protection from defamation

The relevant parts of Article 25 of the Constitution of the Republic of Lithuania read:

“...

No one must be hindered from seeking, receiving, or imparting information and ideas.

The freedom to express convictions, as well as to receive and impart information, may not be limited otherwise than by law when this is necessary to protect human health, honour or dignity, private life, or morals, or to defend the constitutional order.

The freedom to express convictions and to impart information shall be incompatible with criminal actions – incitement to national, racial, religious, or social hatred, incitement to violence or to discrimination, as well as defamation and disinformation ...”

Article 154 § 2 of the Criminal Code provides that the offence of libel in the media or in any other means of publication is punishable by a fine, detention ( arrest ) or imprisonment for a term of up to two years.

Article 313 § 2 of the Criminal Code provides that the offence of disseminating false claims about a deceased person which may lead to contempt for that person or undermine respect for his or her memory is punishable by community service, a fine, restriction of liberty or detention.

The relevant parts of Article 2.24 § 1 of the Civil Code read:

“A person shall have the right to demand the retraction, in judicial proceedings, of information which has been made public and which denigrates his or her honour and dignity and is erroneous; in addition to the right to compensation for pecuniary and non-pecuniary damage incurred by the placing in the public domain of the aforementioned information ... Information which has been made public shall be presumed to be erroneous, unless the publisher proves the opposite to be true.”

In its rulings of 6 November 2006 in civil case no. 3K-3-569/2006 and of 13 November 2007 in civil case no. 3K-3-488/2007, the Supreme Court held:

“A person ’ s honour and dignity can be defended by a retraction of erroneous information, or by a court ’ s declaration that [such information] is erroneous and denigrates the person ’ s honour and dignity, or by awarding pecuniary and (or) non-pecuniary damages. These remedies are independent of one another ...”

2. Civil liability of heirs and legal successors

The relevant parts of Article 48 § 1 of the Code of Civil Procedure read:

“When a party ... withdraws from the case (because of a death of a natural person ... and other instances provided by law), the court ... replaces that party with its legal successor, except for the cases in which material rights cannot be transferred. Transfer of rights is possible at any stage of proceedings.”

Article 5.1 of the Civil Code reads:

“1. Succession is the transfer of property rights, duties and certain personal non-property rights of a deceased natural person to his or her heirs designated by law and/or by [the deceased person ’ s] will.

2. The following shall be subject to succession: material objects (movable and immovable things) and non-material objects (securities, patents, trademarks, and so forth), property claims and obligations, in cases provided by law, intellectual property rights (authors ’ property rights to works of literature, science and art, related property rights and rights to industrial property), as well as other property rights and duties stipulated by law.

3. The following shall not be subject to succession: personal non-property and property rights inseparable from the person (right to honour and dignity, authorship, right to author ’ s name, inviolability of creative work ...) ... except in cases provided for by law.”

COMPLAINTS

The applicant complains about the violation of her right to freedom of expression, protected by Article 10 of the Convention. She submits that the disputed statements had to be read as value judgments and that they fell within the limits of acceptable criticism of public figures. She further submits that the book was her father ’ s personal memoirs, written from his subjective point of view and limited to his knowledge, and that the information on which her father relied sufficiently substantiated their factual accuracy. The applicant argues that the court judgments which granted V.L. ’ s civil claim were not based on a pressing social need and were not necessary in a democratic society.

The applicant also complains that she was held liable for the actions and ideas of her father, despite the fact that he himself had never been found liable before his death. The applicant contends that this breached her right to a fair hearing under Article 6 § 1 of the Convention.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention, in view of the fact that she had to answer for statements made by her late father (see, mutatis mutandis, Lagardère v. France, no. 18851/07, §§ 45-49, 12 April 2012)? In particular:

a) Which personal conduct of the applicant was the basis for V.L. ’ s civil claim after the death of the applicant ’ s father?

b) Who had the burden of proof in respect of that conduct and its unlawfulness in the civil proceedings – the plaintiff or the applicant?

c) Which conduct of the applicant was declared unlawful by the domestic judgments which held that the disputed statements in her father ’ s book were erroneous and insulting to the h onour and dignity of V.L.-Ž and V.L.? What were the legal consequences of those judgments for the applicant?

2. Has there been an interference with the applicant ’ s freedom of expression, within the meaning of Article 10 § 1 of the Convention? If so, was that interference justified under Article 10 § 2 (see, mutatis mutandis, Chauvy and Others v. France, no. 64915/01, §§ 69-78, ECHR 2004 ‑ VI)?