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… underlying psychiatric disorder, and we do not maintain that the situation is different here, where the diagnosis referred to mood swings, panic attacks, suicidal thoughts and visual hallucinations, as well as paranoid ideas. The way to invalidate the former diagnosis would have been for the applicant to submit to another bona fide psychiatric evaluation. This might have disproved the previous opinion. 13. The Vienna Court of Appeal confirmed that the publication in question was directly linked to the applicant’s public status. As stated, she was appointed as a court expert in 2000 and had subsequently been assigned to numerous cases. We agree with the Court of Appeal that the importance and sensitivity of custody proceedings, and the dominant role of experts in such a field, requires that the psychological integrity of an expert assigned to such cases must be beyond doubt. Any reservations on this point ought to have been responded to by means of a thorough investigation, in the interests of the proper administration of justice. This assessment goes back to the issue of whether the applicant, in defence of her status, ought to have submitted to another psychiatric examination. 14. There is a commonsensical addendum to this, to the effect that candidates for any important public function must be beyond reproach. If the function is important, even the slightest doubt as to their psychological fitness must result in removal from the candidacy for such a function. Here we would reiterate that such functions, including that of a court-appointed expert, are subject to privilege, i.e., they are not rights. This has repercussions for the appointment process, because - given that the appointment is a privilege and not a right - the appointing body need not even give reasons for its [1] decision. For the same reason, no appeal lies against such a decision. 15. This case also concerns the applicant’s personality rights (droit de personnalité, Persönlichkeitsrecht), her right to privacy. Article 8 of the Convention juxtaposes this right with the “protection of the rights and freedoms of others”. In two recent cases (Dungveckis v. Lithuania, no. 32106/08, 12 April 2016, and Pinto Coelho v. Portugal (no. 2), no. 48718/11, 22 March 2016), and for a long time before that (Von Hannover v. Germany, no. 59320/00, ECHR 2004-VI; Ernst August von Hannover v. Germany, no. 53649/09, 19 February 2015; and Bohlen v. Germany, no. 53495/09, 19 February 2015), I have been a staunch supporter of personality rights. I consider that personality rights have, since Roman law, been the private-law equivalent of human rights. The ostensibly secondary social values mentioned in the second paragraphs of Articles 8, 9, 10, and 11 are, at least, equipoised (see Dungveckis) when compared to the nominally primary human rights promulgated in the first paragraphs of these Articles of the Convention. Consequently, this calls for value-balancing (assessment of proportionality). 16. In cases where the starting point is, for example, freedom of expression (freedom of the press), the ostensibly secondary personality right of the applicant might nevertheless predominate. Likewise, in the present case the secondary value (protection of the rights and freedoms of others) prevails over the primary value, namely “respect for [the applicant’s] right to her private life”, that is, privacy (see paragraphs 40-46 of the judgment), except that here it is the applicant’s personality rights that are being prevailed over. Again, this goes to show that the secondary considerations are no less important than the primary human rights. This is especially true in cases where the freedom of the press (of expression, Article 10 of the Convention) as a primary consideration collides with another primary value, the right to privacy. Here, in contrast to the other cases cited above, the balancing exercise is conducted between two explicit prescriptive (primary) rules of the Convention. 17. This is one of those rare cases where it is undeniably clear that the public interest of the multiplicity of family-law cases in question, and the consequent freedom of the press, must prevail over the applicant’s right to privacy. JOINT DISSENTING OPINION OF JUDGES WOJTYCZEK AND KŪRIS www.bailii.org/eu/cases/ECHR/2016/431.html 12/23