In the case of Ageyvey v Russia ([2013] ECHR 346) the First Section of the Court of Human Rights found a number of breaches of Article 8 in a case involving an allegation of child abuse by the parents of an adopted child. In particular, the Court found that there had been a failure adequately to investigate the unauthorised disclosure of confidential information and failure to protect the right to reputation of a parent suspected of child abuse.
Background
In 2008 the applicants, a married couple, adopted two small children (a boy and a girl). Following an incident on 20 March 2009 in which the boy was badly burnt at home and had to go to hospital for treatment, the authorities took the children into care as they suspected abuse. According to the applicants, their son had been scalded when he knocked over an electric kettle and had then hurt himself falling down some stairs. They challenged the removal order before the domestic courts, but it was eventually upheld in April 2009.
In June 2009, the couple’s adoption of the children was revoked by the district court, which based its decision in particular on a finding that the parents had failed to look after the children’s health – relying on a medical report from the hospital indicating that both children had a number of untreated illnesses – and on the fact that a criminal investigation had been lodged against the applicants in respect of the injuries sustained by the boy. The decision to revoke the adoption was upheld in August 2009.
In November 2010 the first applicant was acquitted of the charges against him; the second applicant was convicted of the offences of non-fulfilment of duties relating to the care of minors and of the intentional infliction of mild harm to health. She was sentenced to one year and eight months’ correctional work.
In their application to the Court of Human Rights the applicants complained under Article 8 of the Convention of the sudden removal of their adopted children, of the revocation of the adoption of being refused access to the children for some fourteen months.
They also complained of a breach of their privacy on account of: the conduct of hospital officials who provided journalists with access to their son and with photographs and medical information about him, of the unauthorised disclosure of confidential information concerning their son’s adopted status in the media and of a failure by the domestic courts to protect the second applicant’s reputation against factually incorrect and defamatory media reports.
Judgment
The Court held removal of the applicants’ children in March 2009 had constituted an interference with the applicants’ right to respect for their family life. However, the interference had been in accordance with the law and necessary in a democratic society. Given that their primary task was to safeguard the interests of the children, the authorities could reasonably have considered that it was in the children’s best interests to be placed in care pending the outcome of the criminal investigation into the events of 20 March 2009.
In contrast, the revocation of the adoption was not necessary in a democratic society. The suspicion of child abuse was not sufficient, absent other weighty reasons, to justify the far-reaching and irreversible decision to revoke the adoption. The refusal to allow the applicants access to the children was also a violation of Article 8.
The Court found it established that: doctors and officials of the hospital had taken photographs of the applicants’ son for non-medical purposes and passed them on to the assistant of a member of the Duma, and that they had informed several media crews of the boy’s identity and given them direct access to him and to medical information concerning his condition. This constituted interference with the applicants’ right to respect for their private and family life.
All these actions had been taken without seeking the authorisation of, or informing, the applicants. Since the relevant authorisations had been given by the head of the hospital in his capacity as an official under the authority of the Department of Healthcare of the City of Moscow, the respondent State’s responsibility was engaged.
The Court observed that
“the hospital and health authorities not only disclosed or made available to third parties data concerning G. that was medical, personal and sensitive, including his name (see Burghartz v. Switzerland, 22 February 1994, § 24, Series A no. 280‑B), photographs containing, among other things, information of a medical character, (see Reklos and Davourlis v. Greece, no. 1234/05, § 40, 15 January 2009), and his detailed medical diagnosis (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002, M.S. v. Sweden, 27 August 1997, §§ 31-35, Reports 1997‑IV and P. and S. v. Poland, no. 57375/08, § 128, 30 October 2012), but also authorised direct access of TV crews to a boy who was only three years old at the time and was not accompanied by his parents” [175].
Furthermore, the authorities did not seek any guarantees from the media as to the non-disclosure of the child’s identity and there was subsequent widespread dissemination of all this date.
In their submissions to the Court, the Government had failed to demonstrate that these actions had any basis in the domestic law. As a result, there was a violation of Article 8 in this respect.
The applicants’ allegations that State officials had disclosed confidential information about the adoption status to the media had not been made out. But, the State was at fault in failing to carry out an effective investigation into what had happened. It had taken the authorities more than a year to react to the applicants’ complaint and the investigation had later been suspended because the perpetrators had not been identified. Although that decision was later quashed, the investigation did not appear to have advanced since.
The authorities had thus failed to effectively investigate the unauthorised disclosure of the confidential information [199]. This was a breach of the positive obligation of the state under Article 8 to protect the applicant’s Article 8 rights.
In relation to the second applicant’s claim of a failure to protect her reputation, there had been a number of newspaper articles with headlines such as “Mummy with a devil’s heart“, “Monster Mummy is facing jail for cruel treatment of child” and “Payback for torments of an angel” ([86]).
The Court noted that these articles:
“essentially accused the second applicant of having engaged in reproachable or even unlawful behaviour and thus questioned her reputation. In the eyes of the Court, there can be no doubt that these allegations, brought against an individual who was not a public figure or a politician, fell within the scope of the second applicant’s “private life” within the meaning of Article 8 of the Convention (see Pfeifer v. Austria, no. 12556/03, §§ 33-35, 15 November 2007)”. [217]
The complaint was that the State had failed to protect her reputation against interference by third parties [218].
In considering whether there was a breach of the State’s positive obligations that Court took into account a number of factors:
- The second applicant was not a public figure or politician but was an ordinary person and the fact that she was the subject of criminal proceedings could not deprive her of the protection of Article 8 [221].
- The incident concerned a private person in a purely private context [222].
- The subject matter of the proceedings – involving a suspicion of domestic violence in respect of an adopted child – could be considered important to the public [223].
The essential functions of the press in a democratic society carried with them obligation to repsect certain duties and responsibilities:
“in view of the pending criminal proceedings against the second applicant, any reporting in connection with the incident of 20 March 2009 should have taken into account her right to the presumption of innocence and the fact that the incident concerned a private person in a purely private context” [226]
Furthermore,”the material was presented in a sensational and gossip-like manner” [227]. Allegations of a factual character were presented in a way which made them appear to be verified or confirmed by credible sources
The domestic courts in the defamation proceedings did not appear to have attached any importance to the second applicant’s right to be presumed innocent. Nor had they examined closely whether the journalists had acted in good faith and had provided reliable and precise information in accordance with the ethics of journalism [231].
The Court was of the view that
“Even though nothing in the case-file suggests that the journalists responsible for the material were not acting in “good faith”, they obviously failed to take the necessary steps to report the incident in an objective and rigorous manner, trying instead either to exaggerate or oversimplify the underlying reality” [237]
In these circumstances, the Court was not convinced that the reasons advanced by the domestic courts regarding the protection of the freedom of expression of the media company had outweighed the second applicant’s rights to have her reputation and right to the presumption of innocence safeguarded. As a result, there was a violation of the second applicant’s Article 8 rights on account of the domestic court’s failure to protect her right to reputation [239].
The court awarded €25,000 just satisfaction to the first applicant and €30,000 to the second applicant in respect of non-pecuniary damage.
Comment
The judgment is a long and complex one, dealing with a range of Article 8 issues in the context of an allegation of child abuse. The discussions of “family life” in the context of positive obligations are of general interest. From the media law point of view, three parts of the judgment are of particular interest: the consideration the disclosure of information by the state, of the investigative obligation under Article 8 and of the right to reputation.
On the first point, after the arrest of the applicants state officials disclosed information about their injured child to the media. The precise motivation for these disclosures is not clear – although a politician appears to have been involved in publicising the case and may have assisted the media. The Court made clear that disclosures of this kind needed a clear basis in domestic law. In the absence of a legal framework setting out the circumstances in which disclosure would be permitted, the disclosures were not “in accordance with law” under Article 8(2).
The case law in relation to the “investigative obligation” under Article 8 is considerably less developed than that under Articles 2 and 3, but the Court has, increasingly, recognised the importance of investigating apparently credible allegations of breaches of Article 8 by the disclosure of confidential information. This approach would be directly relevant to allegations of that public officials have provided confidential information to the press in return for payment. The case makes it clear that the State is under an obligation to conduct an effective investigation into allegations of this kind.
The final point concerns the court’s finding that the failure of the domestic courts to find in favour of the second applicant constituted a breach of her “right to reputation” under Article 8. The Court went into some detail as to the failure of the domestic court in the defamation proceedings to consider whether the allegations had been proved to a satisfactory standard (see [227] to [236]).
This is one of a small number of cases where the Strasbourg court has considered the conflict between reputation and expression from the reputation point of view (see the Inforrm case comment on Petrenco v Moldova). It is another reminder that in defamation proceedings two Convention rights are in play – Article 8 as well as Article 10 – and that a “fair balance” has to be struck between them.
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