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, the Bundesverfassungsgericht 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 .