03/02/2020 FURST-PFEIFER v. AUSTRIA - 33677/10 (No violation of Article 8 - Right to respect for private and family life (Article 8-1 : Respect for priva… misrepresentation and misinterpretation of facts in this case, one cannot but note that the Government argued that the “[i]nformation about the mental state of health of a court-certified expert who worked in sensitive proceedings in custody issues was a contribution to a debate of general and public interest” (see paragraph 34). The Chamber went further: it concluded that “as can be seen from the persons quoted in the article at issue and their respective statements ..., the authors of the article reported that the medical report had already provoked political reactions and thus participated in an ongoing public debate” and that “a serious debate on the mental-health status of a psychological expert, evoked by reasoned suspicions, has to be seen as a debate of general interest” (see paragraphs 43 and 45 respectively). This is not true. It is as plain and simple as that. At the time of publication there was no public debate on the issue. The article did not contribute to an “ongoing” debate, because nothing of the sort was “ongoing” at the relevant time. On the contrary, it was intended to initiate a debate - not on the topic of “general and public interest” but, as will be shown, on the applicant’s personality. That there was no “ongoing public debate” is obvious from the explicit statement in the article in question that “the integrity of the applicant was not debated upon for more than a decade - until now” (Ihre integrität stand über eine Dekade nicht zur Debatte - bis jetzt). This fragment has been omitted in paragraph 8, where the excerpt from the article is provided, but - speaking on its own behalf - the Chamber refers to it in paragraph 44: “[i]t was clearly stated that ... that the applicant’s integrity had not been questioned for more than a decade”. For the presumption of an “ongoing debate”, the words “not questioned” are far more comfortable than the words “not debated upon”. But they are not correct. 21. The “member of the Green Party” quoted in the article (and referred to in paragraph 9) had acknowledged that the information about the expert report was provided to him “a few days ago” (Mir wurde Fürst-Pfeifers Gutachten vor wenigen Tagen zugespielt), and that he immediately (sofort) filed a criminal complaint against the applicant. The Austrian courts did not bother at all to establish who had “provided” the information. Nor has the Chamber. In such circumstances it is not unreasonable to presume that the “member of the Green Party” received the information from the journalists or publishers - in the same way as the information seems to have been provided by the latter to other persons (also mentioned in paragraph 9) who were asked to give their comments on the matter. This is only one version, a guess, but it is no less plausible than its alternatives: had the “member of the Green Party” received the information from other sources and shared it with the media, this would most probably have been mentioned in the article. 22. Furthermore, there is no evidence that the applicant had herself provoked or otherwise attracted the attention of the media in any way. Although she has reportedly “examined over 3,000 married couples in custody-related disputes” (see paragraph 8), no information was provided to the Court to the effect that any one of those examinations was challenged, let alone that it gave rise to a “public debate”, to say nothing of a “serious” one. Even if some people discussed or otherwise exchanged opinions about the expert decisions made by the applicant (which would not be in the least surprising, given that over 3,000 married couples in custody-related disputes were concerned by these decisions, not to mention the professional community which may also have had an interest in these decisions), this does not amount to an “ongoing public debate”. The judgment also speculates that “a court-certified psychological expert, such as the applicant, plays an important and sometimes decisive role in the decision-making process in child-care proceedings and thus strongly influences not only the fate of families but also of individuals in an early and sensitive stage of personal development”, and therefore, “[i]n the eyes of the parties to the proceedings and the general public there must not be any doubts as to the mental fitness of such an expert in order to maintain public trust in the judiciary” (see paragraph 45). But there is no indication that any of the decisions in which the applicant could have played a “decisive role” ever prompted any of the “parties to the proceedings [or] the general public [to express doubt] as to [her] mental fitness”. 23. Another telling fact is that neither the name of the court where the applicant was certified as an expert nor the name of the individual about whom the article was published was anonymised. It is not the person concerned but the author of the article whose name was withheld (see also § 25 below). Had the article been intended to trigger a public discussion on a broader problem, such as what criteria of “mental fitness” must be applied to courts’ “psychological experts” or as to whether this function can www.bailii.org/eu/cases/ECHR/2016/431.html 19/23