CONCURRING OPINION OF JUDGE ZUPAN Č I Č

I agree with the outcome in the present case. However, I consider that the judgment would have greater advisory force were the facts qualified in another manner ( qualification juridique ). Given that the Court is the master of the characterisation to be given in law in its own cases, it could have re classified the case.

1 . In terms of the facts as presented in the judgment, we have a situation in which serious doubts were raised as to the competence of a court ‑ appointed psychological expert (psychiatrist) who had rendered advice before the local courts in thousands of cases concerning child custody issues and similar questions.

2 . There can be no doubt, therefore, as to the public relevance of the issue in this case, that is, as to the question of psychological fitness, which was also required by section 2 (2) of the Austrian Federal Act on the Certifying and Declaration on Oath of Experts and Interpreters (see paragraph 25 of the judgment). Indeed, at the origin of this entire problem lies the question of whether the competent Austrian authorities ought to have examined the applicant ’ s “psychological fitness” ab initio , while she was under consideration for appointment as a certified court expert. If this had been done, we would not be facing the situation currently before us.

3 . The applicant has been registered as a court-appointed psychological expert since 2000; she has provided expert advice in custody, contact-rights and related disputes and on the public care of children, including in cases of alleged child abuse.

4 . Seven years before that, in 1993, the applicant was diagnosed as described in the first paragraph of the quoted article (see paragraph 8 of the judgment). Subsequently, according to the same article, the veracity of which has been confirmed, the applicant assessed over 3,000 married couples in custody-related disputes.

5 . It is worth mentioning here that all of these cases were dealt with in camera ; in other words, the public was generally not permitted to be present and the press was generally not allowed to report on these proceedings. As we know, the public functioning of the courts has as its precise purpose to permit anomalies to be made public as soon as they are detected. It is not apparent in how many of the above-mentioned 3,000 cases the psychological expert ’ s intervention was, or was not, dysfunctional. Given the secrecy of these proceedings, the publication of the incriminated article was perhaps the only way to alert the public and the authorities to the potential problem. As we shall see, the aim of the article was “whistleblowing”, especially since other possible avenues were apparently not available.

6 . What follows is a quote from the case of Heinisch v. Germany (no. 28274/08, ECHR 2011 (extracts)) dealing with the question of “whistleblowing”:

“B. Relevant international law and practice

37. In its Resolution 1729 (2010) on the protection of “whistle-blowers” the Parliamentary Assembly of the Council of Europe stressed the importance of “whistle-blowing” – concerned individuals sounding the alarm in order to stop wrongdoings that place fellow human beings at risk – as an opportunity to strengthen accountability , and bolster the fight against corruption and mismanagement, both in the public and private sectors. It invited all member States to review their legislation concerning the protection of “whistle-blowers”, keeping in mind the following guiding principles:

6.1.1. the definition of protected disclosures shall include all bona fide warnings against various types of unlawful acts, including all serious human rights violations which affect or threaten the life, health, liberty and any other legitimate interests of individuals as subjects of public administration or taxpayers, or as shareholders, employees or customers of private companies;

...

6.2.4. Any whistle-blower shall be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turns out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives.” (emphasis added.)”

7 . Austria does not have specific legislation concerning “whistle ‑ blowers”. Nonetheless, the situation in the case at hand is perfectly subsumable to the following provision in the above-cited soft-law recommendations:

“6.2.3. Where internal channels either do not exist, have not functioned properly or could reasonably be expected not to function properly given the nature of the problem raised by the whistle-blower, external whistle-blowing, including through the media, should likewise be protected.”

8 . For analogous reasons, section 7 (2) (ii) of the Media Act provides that a plaintiff ’ s claim for compensation for the damage sustained from the actions of a media proprietor (publisher) cannot be granted where “the statements published are true and are directly related to public life...”

9 . This is the well-known exception where a defendant may show, through the test of veracity, that what he or she was publishing is related to public life and that it is true. Yet the purpose of this provision, as pointed out above, is exactly the same as the proviso excepting “whistle-blowers” from various sanctions – on the ground of undisputed public interest. Again, since “whistle-blower” legislation does not exist in Austria, the above citation from section 7 of the Media Act provides a direct path to a similar outcome. The application of this section 7 (2) (ii) Media Act test is therefore acceptable.

10 . The next question refers to the applicant ’ s affirmation that the publication of a 17-year-old expert report on her mental health was outdated and of no relevance in assessing her current professional skills. Consequently, the aim of the publication was not to inform the public but only to damage her reputation. Moreover, she claimed that, for these reasons, the publishers could not rely on their rights under Article 10, given that she was not a public figure.

11 . To be a court-appointed expert is obviously to be a public figure. Further, in view of the well-balanced text in question, the aim of publication was certainly not to damage the applicant ’ s reputation. Moreover, in the Continental legal systems experts are appointed by the court: in other words, they are not chosen by the parties. Where a judge does not have the requisite specialised knowledge, in this case psychological knowledge concerning , inter alia , custody cases, he or she will appoint an expert from the roster. An expert witness does not testify only to the facts, as is the case with ordinary witnesses. He or she testifies about the facts, as he or she has established them, and is also bound to give his or her opinion on the same facts. Given that those facts and that opinion overlap to the point of being consubstantial, a judge is rarely in a position to question the expertise of the court ‑ appointed expert. Consequently, a case will often depend primarily on the expert ’ s opinion.

12 . The remaining issue in this context is whether or not a 17-year-old expert report is relevant. In the case of Scozzari and Giunta v. Italy ([GC], nos. 39221/98 and 41963/98, ECHR 2000 ‑ VIII) the Court took the position that the children should not have been entrusted to foster care in the “Fortetto” home near Florence on account of the fact that one of the managers of that foster home had previously been diagnosed as a paedophile. The whole case hinged on this established fact, yet the diagnosis of paedophilia was at that time already 20 years old. For this reason, one cannot a priori maintain that a long-standing psychiatric diagnosis was not relevant. Of course, much depends on the nature of the underlying psychiatric disorder, and we do not maintain that the situation is different here, where the diagnosis referred to mood swings, panic attacks, suicidal thoughts and visual hallucinations, as well as paranoid ideas. The way to invalidate the former diagnosis would have been for the applicant to submit to another bona fide psychiatric evaluation. This might have disproved the previous opinion.

13 . The Vienna Court of Appeal confirmed that the publication in question was directly linked to the applicant ’ s public status. As stated, she was appointed as a court expert in 2000 and had subsequently been assigned to numerous cases. We agree with the Court of Appeal that the importance and sensitivity of custody proceedings, and the dominant role of experts in such a field, requires that the psychological integrity of an expert assigned to such cases must be beyond doubt. Any reservations on this point ought to have been responded to by means of a thorough investigation, in the interests of the proper administration of justice. This assessment goes back to the issue of whether the applicant, in defence of her status, ought to have submitted to another psychiatric examination.

14 . There is a commonsensical addendum to this, to the effect that candidates for any important public function must be beyond reproach. If the function is important, even the slightest doubt as to their psychological fitness must result in removal from the candidacy for such a function. Here we would reiterate that such functions, including that of a court-appointed expert, are subject to privilege, i.e., they are not rights. This has repercussions for the appointment process, because – given that the appointment is a privilege and not a right – the appointing body need not even give reasons for its decision. For the same reason, no appeal lies against such a decision. [1]

15 . This case also concerns the applicant ’ s personality rights ( droit de personnalité, Persönlichkeitsrecht ), her right to privacy.

Article 8 of the Convention juxtaposes this right with the “protection of the rights and freedoms of others”. In two recent cases ( Dungveckis v. Lithuania , no. 32106/08 , 12 April 2016, and Pinto Coelho v. Portugal (no. 2) , no. 48718/11 , 22 March 2016 ), and for a long time before that ( Von Hannover v. Germany , no. 59320/00, ECHR 2004 ‑ VI; Ernst August von Hannover v. Germany , no. 53649/09 , 19 February 2015 ; and Bohlen v. Germany , no. 53495/09 , 19 February 2015 ), I have been a staunch supporter of personality rights. I consider that personality rights have, since Roman law, been the private-law equivalent of human rights.

The ostensibly secondary social values mentioned in the second paragraphs of Articles 8, 9, 10, and 11 are, at least, equipoised (see Dungveckis ) when compared to the nominally primary human rights promulgated in the first paragraphs of these Articles of the Convention. Consequently, this calls for value-balancing (assessment of proportionality).

16 . In cases where the starting point is, for example, freedom of expression (freedom of the press), the ostensibly secondary personality right of the applicant might nevertheless predominate. Likewise, in the present case the secondary value (protection of the rights and freedoms of others) prevails over the primary value, namely “respect for [the applicant ’ s] right to her private life”, that is, privacy (see paragraphs 40–46 of the judgment), except that here it is the applicant ’ s personality rights that are being prevailed over.

Again, this goes to show that the secondary considerations are no less important than the primary human rights. This is especially true in cases where the freedom of the press (of expression, Article 10 of the Convention) as a primary consideration collides with another primary value, the right to privacy. Here, in contrast to the other cases cited above, the balancing exercise is conducted between two explicit prescriptive (primary) rules of the Convention.

17 . This is one of those rare cases where it is undeniably clear that the public interest of the multiplicity of family-law cases in question, and the consequent freedom of the press, must prevail over the applicant ’ s right to privacy.