PARTLY DISSENTING OPINION OF JUDGE JOÄŒIENÄ–

I voted in principle with the majority of the Chamber as regards the operative part of the judgment.

However, I cannot agree with the Chamber ’ s award for non-pecuniary damage under Article 41 in th is particular case.

Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34 , Series A no. 330- B ).

Taking into account the specific nature of the case at hand , as well as the reasonable suspicions as regards the applicant ’ s possible involvement in serious criminal acts (see paragraph s 8, 9 and 56 of the judgment) , the authorities had a legitimate basis on which to conduct some operational activities against the applicant (see paragraph 55) in order to protect and strengthen the young democracy of Lithuania . And even assuming that the application of such operational measures led to a violat ion of the Convention provisions in th is case , for the reasons indicated in the judgment , this does not automatica l ly mean that the applicant is entitled to an award under Article 41.

The applicant did not substantiate the point that his good name or his reputation had suffered, and still less that his alleged health problems had had any connection with the disclosure of the secretly reco rded information to the public.

In my opinion, having regard to the particular circumstances of the case , any damage which allegedly could have been suffered by the applicant would be sufficiently compensated for by its finding of a violation of Articles 8 and 13 of the Convention ( see , among other authorities, mutatis mutandis , Daktaras v. Lithuania , no. 42095/98, §§ 47-49 , ECHR 2000- X ; Thompson v. the United Kingdom , no. 36256/97, 15 June 2004 ; and Lamy v. Belgium , 30 March 1989, § 42 , Series A no. 151 ).

Accordingly, the Chamber ’ s decision to award EUR 4 , 000 for non-pecuniary damage seems to me totally inappropriate within the circumstances of this specific case.

PARTLY DISSENTING OPINION OF JUDGE SAJÓ

I agree with my colleagues regarding the finding of a violation of Article 8 on account of the applicant ’ s conversation with J. B. not having been protected, in disregard of the law. In my view there was a violation on the other two accounts too, and to my regret I have to dissent in this regard. As to the tapping of the telephone conversations originating from the State President (paragraph 13), this is illegal (see Law on Operational Activities, Article 6 (3)). This is not a case of incidental involvement of the State President and the recording should have been destroyed had it been made accidentally. Moreover, all the disclosure in the Constitutional Court proceedings was unlawful as the impeachment procedure was not a criminal procedure ( Paksas v. Lithuania [GC], no. 34932/04, § § 47 and 68 , ECHR 2011 (extracts) ). The declassified information was not used as evidence in a criminal case, or in any other manner prescribed by the Law on Operational Activities.

[1] See paragraphs 60 and 61 of the judgment.

[2] T he Court has repeatedly accepted the disclosure of information from pending secret criminal investigations, for example in Pinto Coelho v. Portugal , no. 28439/08, 28 June 2011 ; Laranjeira Marques da Silva v. Portugal , no. 16983/06, 19 January 2010 ; Campos Dâmaso v. Portugal , no. 17107/05, 24 April 2008 ; Dupuis and Others v. France , no. 1914/02, 7 June 2007 ; and Du Roy and Malaurie v. France , no. 34000/96, ECHR 2000 ‑ X .

[3] As the Parliamentary Assembly of the Council of Europe has stressed, “where the cloak of secrecy is used to cover violations of human rights, not only have State authorities failed to live up to their duty to protect the rights of their citizens but also democracy and rule of law are seriously in danger. This is not less so when extensively broad assertions of the notions of State secrecy extend to information or data on which the public has a legitimate interest of disclosure” (see Recommendation 1983 (2011) of the Parliamentary Assembly on “Abuse of State secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations” and the Committee of Ministers’ Reply to Recommendation 1983 (2011), a dopted at the 1146th meeting of the Ministers’ Deputies (20 June 2012) ). The Assembly has also expressed its concern that German, Swiss and Italian authorities have threatened, or even prosecute d media editors, journalists or other whistle-blowers for alleged breaches of official secrecy, after they exposed cases of corruption or other abuses of pu blic authority (see Parliamentary Assembly Resolution 1551 (2007) on “Fair trial issues in criminal cases concerning espionage or divulging state secrets”). T he Assembly has gone so far as to recognise the valuable role of whistle-blowers , noting that their actions provide an opportunity to strengthen accountability and bolster the fight against corruption and mismanagement, both in the public and private sectors (Resolution 1729 (2010) on “Protection of ‘whistle-blowers’”). If State secrecy cannot be invoked to cover up human rights violations, a fortiori the confidentiality of criminal investigations cannot be misused to hide from the people blatant grave misconduct of high-ranking State officials.  

[4] See the Attorney General’s Office’s “information” of 15 December 2003 mentioned in paragraph 20 of the judgment, and contrast with the Attorney General’s letter of 11 November 2003 referred to in paragraph 14 of the judgment.

[5] See the prosecutor’s decision of 25 March 2004 referred to in paragraph 30 of the judgment.

[6] Article 6, paragraph 9, of the LOA.

[7] The European standard has been established in Iordachi and Others v. Moldova , no. 25198/02, 10 February 2009; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria , no. 62540/00, 28 June 2007; Aalmoes and Others v. the Netherlands (dec.), no. 16269/02, 25 November 2004 ; Weber and Saravia v. Germany (dec.), no. 54934/00, ECHR 2006 -XI; and Klass and Others v. Germany , 6 September 1978, Series A no. 28.

[8] A rticle 5 of the LOA .

[9] Article 10, paragraph 4 (2) and (4), of the LOA.

[10] Article 10, paragraph 4 (3) and (7), of the LOA.

[11] A rticle 10 , paragraph 4 (6), of the LOA .

[12] Article 10 , paragraph 1 , of the LOA .

[13] A rticle 10 , paragraph 2 , of the LOA .

[14] Article 10 , paragraph 5, of the LOA .

[15] Article 5, point (2), of the LOA.

[16] Article 9, point (1) in fine , of the LOA.

[17] S ee paragraph 9 of the judgment.

[18] As required by the Court’s case-law (see Association for European Integration and Human Rights and Ekimdzhiev , cited above, § 85, and Iordachi , cited above, § 47).

[19] Article 6, paragraph 8 , of the LOA .

[20] Article 23 of the LOA .