Dinjiteti dhe Personaliteti

Prof. Dr. Mariana SEMINI-TUTULANI

Tiranë, 21 Maj 2010

Respecting Human Dignity, Personality and Privacy

in framework of protection of Human Rights

Prof. Dr. Mariana SEMINI-TUTULANI

Tirana, 27 Nov 2011

Harry S. Truman:

“We must build a new world, a far better world – one in which the eternal

dignity of man is respected.”

Dinjiteti dhe Personaliteti

Prof. Dr. Mariana SEMINI-TUTULANI

Tiranë, 21 Maj 2010

Some Concepts

Dignity of a person is related with his personalValues, reputation and honor, with titles, his status and place in society or community, as well as the feature of honesty.

Honor -”honestus” (lat) – good character and

attitude

Personality – entirety of features characterizing

a certain person, which are related not only to

personal but also professional elements.

Privacy – Family, profession, home…

Human Rights Universal Declaration - Article 12

European Covention of Human Rights – A.3,6,8

Constitution of RA Articles 25, 30, 35, 37.

Nobody can be…subject to infringement in his

honor and reputation.

Prohibition of denigrating tortureRight to a fair legal process;

Every man is entitled to respect for his life ….

Prohibition of humiliation,Presumption of innocence,

Nobody can be forced to make public data related to his person.

Inviolability of dwelling, correspondence..

Protocol 7, Article 3

Right of compensation in caseof judicial error

Compensation for unjust imprisonment

Civil Code, Article 625 Compensation for infringement of personality and good name

Infringement of Dignity• “Degrading Treatment” in civil and penal,

property and non-property areas, through:• Physical actions, torture, violence, etc;• Administrative and judicial decisions and

actions: unfair conviction or judicial error;• Discriminations in services;• Infringement by indecent words, insults and

actions in public areas;• Violation of privacy, dwelling, correspondence• Publications in framework of freedom of press

affecting the persons’ good name and personality;

Decision no.137, dated 9.11.2004 on case A.B against Directory of Prisons with object: compensation of 500.000 leks for degrading and inhuman conditions in the predetention rooms in Mirdita.Partial admission of lawsuit. Court of Appeal overturns it by decision no.860, dated 16.9.2005.

ECHR – Case Kalshnikov vs. Russia by decision no.47095, dated 15.7.2002 has deemed to be a degrading treatment the detention in room of 0.9-1.9 m2 – constitutes violation of article 3 of ECtHR.

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Professional Life Personality

Infringement of professional life is a cause for damages

Decision no.1320, dated 31.03.2003 of the First Instance Court of Tirana and Decision of Appeal Court of Tirana no.125, dated 26.02.2004, on the case K.C against “Panorama Grup”, with object award of damages for infringement of honors and personality in the amount of 3.280.000 leks for the article “Scandal in Court…” where untrue information is published for a court process where a person has been declared innocent from the Court. Partial admission of lawsuit. Damages in the amount of 2.000.000 leks.

Decision of First Instance Court of Tirana No. 2849, dated 8.10.1999, regarding case M.S against L.A, with object: Non-property damages, where the court finds that such expressions as …”has violated the principle of good faith…” and …”for moral and professional reasons cannot be anymore legal representative of CCF in Albania”, used for the plaintiff in an official correspondence of the defendant in the CCF offices in Geneve….” bring about degrading of honor and dignity of the plaintiff…”, because…” they are a negative recommendation for her…”

Case A. R against Commission of Verification of Figures, for damages in the amount of 5000 Euro. Plaintiff was a candidate for member of parliament and CVF excluded from the list because he had a file of being a collaborator of the state security service. A complaint was submitted against this decision in the High Court, which found that the person not only had not been a security service collaborator but he was prosecuted from this service and this data file was confused by the CVF. The Court awarded damages in the amount of 700.000 leks, but he lost the right to compete for member of parliament because the term expired.

Moral Damage and Infringement of Name and Dignity

• In case N. T vs. “Edisud” company Sh. A, (Gazeta Shqiptare”), with object honor and personality compensation for violation of moral and economic rights coming from publication of the work “Shame” in the addendum “Milosao” of this newspaper through citations and abstracts, under the words disdaining and discrediting for the author.

• In 20.06.2004 and 18.07.2004 were published parts from the plaintiff’s novel in the part “Recycle Bin”-“Koshi i plehrave”.

• Plaintiff addressed a letter to the chief editor of the newspaper, but in the public answer from the first to the fourth page was treated the novel «Shame» as a stealing from the novel “Knives” of Ernest Koliqil; the novel «Knives» of the plaintiff was treated as an apology for the state security service, expressing personal accusations for the author.

• The Plantiff was defended with the argument that the press can publish critics and comments for literary works.

Moral Damage and moral rights of the author

• In the civil case with plaintiff R. P. and defendant the magazine “Albanian Observer” was claimed the cessation of violation of copyright and obligation of not repetition of this violation, as well as the obligation to compensate the damages caused because of reproduction and changing of the work of another without the authorization of the writer in the amount of 10 000 $.

• From judicial inquiry it resulted that the defendant “Albanian Observer” has published only one in its edition No.10 of 1999 a cover with the picture of the plaintiff “8 kokat” dubbed under the title ‘Sinking back” which presents this picture under water or reflected in a mirror. According to the magazine, the action was not repeated anymore. The plaintiff claims that this violation ceased in October 1999 and was not repeated anymore.

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Dignity and reputation of the ordinary person

Dignity and reputation Of the public person,

Politician, statesman…Lowest level of protectionHighest level of tolerance;

Interest of publicfor information, etc.

Virtue vs ViceVirtue represents the highest qualities of a person and

"virtue is the highest value that a person possesses» Socrates “Ideal life should be spent in search of good and righteous.”

There is a big fight in every human being between that which everybody wishes to reach and exceed in life and that which is considered as missing. In view of the struggle between that which is pleasant and that which is painful in seeking the truth, or of that which we might win instead of what we might lose, we can say that not all people make their choices easily. Intellectual or professional virtue is made up of four cardinal virtues:

Courage, patience, justice and care or maturity.

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Private and Family Life Freedom of Press

Contribution given by publications in the debate and general public interest.

Case Y. P against Top Chanel with object: compensation for damages caused by filming inside family household and violation of personality because of intimate scenes.

Damages in the amount of 400.000 Euro

Case S. K against Magazine “Klan” on the compensation of 10.000 Euro of the damage caused by publication of photo of the former Miss. Albania.

Photo showed the top part of the body taken during the shooting of a film and the moment of this actress from the lake waters with a transparent robe.

Case “Gulsitan” Education Company against Newpaper “Gazeta Shqiptare” with object:

Award of non-property damages caused by degrading of personality of plaintiff as a result of an article from the defendant titled “Turkish College, two lesbians expelled”. (Decision of First Instance Court, Tirana, No.1192, dated 16.04.1999)

Privacy and Family Life;

Making public an investigation proof, in the form of a pornographic video

distributed by cell phoneIs it a violation of privacy?

(Case I.Gj vs Tirana Prosecutor’s Office).

Unifying Decision of the Joint Colleges of the High Court

No.12, dated 14.09.2007 onDisruption of entity and family relations,

Lowering of quality of life and creation of concernsof individuals from intrusion in their privacy.

«Objective shocking of daily life should be compensated».

Dignity and right to privacyVon Hannover against Germany

Caroline Von Hannover claimed prohibition of publication of her private photos in German magazines.

Court of Hannover decided that plaintiff “should tolerate this kind of publication”, because right to privacy “…ended at the house door.”

Court of Appeal of Hamburg deemed that plaintiff represented “…a contemporary figure “par excellence” therefore she should tolerate publication without permission of photos in public areas. This publication was made by …” legitimate desire to inform the public opinion”.

In the case Von Hannover vs. Germany

• European Court of Human Rights analyzed right to private life (article 8) and right to free press. It found:(a) that photos belonged to private life of plaintiff, but at the same time it also said that, (b) freedom of press and expression, which case by case has the form of information, but also critic, disturbance, harassment etc. These intrusion are requests of tolerance, pluralism and opening toward the society, without which there can be no “democratic society”.

Care should be taken: Press should not exceed the limits of respect for privacy. As a conclusion, in the duel between private life and freedom of press and expression, it should be taken into account the “contribution given by publication of photos in the debate and general public interest”.

Is parliamentary debate a source of penal and civil lawsuits?

• is there any moral damage and infringement of personality when information is given about incorrect or illegal activities of political adversaries?

• Is it important whether the debate and declaration is made in the parliamentary session or political party offices or in an interview in TV channel?

We should be familiar with our rights so that we can respect them and claim their protection with the restrictive force of the state

Gandhi: Nobody can take away our dignity if we do not give it away.

Every respect for dignity is mutual.

Thomas Jefferson: We should believe in our power with modesty, respect the power of others, without fearing it.

In spite of today’s society trends, court practice and European legislation, we should not forget the principle that although it tries to relieve pain and easy suffering, again

Pecuniary compensation does not heal the wounds.