DISSENTING OPINION OF JUDGE VAJIC

This case raises the question – in a particularly serious context – of the balance between freedom of information and protecting people ' s rights , in particular when pictures are published . The rights in issue here are Prefect Erignac ' s right to respect for his dignit y after his death, and the rights of his family in mourning .

Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ' s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ' information ' or ' ideas ' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”.

As stated in paragraph 41 of the judgment , it is the duty of the press to impart – in a manner consistent with its duties and responsibilities – information and ideas on all matters of public interest; not only does the press have the task of imparting such information and ideas: the public also has a right to receive them (see, among other authorities, Colombani and O thers v. France , no. 51279/99, § 55, ECHR 2002-V) . Prefect Erignac ' s murder was without doubt a matter of public interest ( see Tammer v . Estoni a , n o. 41205/98, § 68, ECHR 2001 ‑ I) and a news item of major public concern ( Krone Verlag GmbH & Co. KG v . Au stria , no. 34315/96, § 37, 26 February 2002).

Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed ( Oberschlick v. Austria (no. 1) , judgment of 23 May 1991, Series A no. 204, p. 25, § 57). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation ( Prager and Oberschlick v. Austria , judgment of 26 April 1995, Series A no. 313, p. 19, § 38, and Thoma v. Luxembourg , no. 38432/97, §§ 45 and 46, ECHR 2001-III).

The Cour t has already considered the publication of photographs concern ing public figure s ( Von Hannover v . Germany , no. 59320/00, ECHR 2004-VI) or politi cal personalities ( Schüssel v . Austria (d e c.), no. 42409/98, 21 February 2002). However , it has never before pronounced judgme nt on the publication of photographs concerning the politi cal assassination of a public figure .

In those cases the Court has heard relating to the balance between the protection of private life and freedom of expression , it has always emphasised the contribution the publication of photographs or articles in the press mad e to the general debate ( see Tammer , cited above , §§ 59 et seq. ; News Verlags GmbH & CoKG v . Austria , no. 31457/96, §§ 52 et seq ., ECHR 2000-I ; and Krone Verlags GmbH & CoKG , cited above , §§ 33 et seq .).

In the pr e sent cas e it had to determine whether the publication of the photograph of Prefect Erignac ' s body made an essential contribution to a debate on a matter of general interest .

I believe that the murder of Prefect Erignac , the State ' s repr e senta tive in Corsica , was undeniably a matter of public interest . It was an event with major political repercussions , a national tragedy even , an offence to the Republic itself, and the public had the right to be informed . It was a subject at the very heart of the news , extending beyond the realm of private life . R estrictions on freedom of expression in this area must be construed strictly ( see, among other authorities , Feldek v . Slova kia , no. 29032/95, § 74, 12 July 2001) and the national margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its vital role of “public watchdog” ( see , for ex a mple, Bladet Tromsø and Stensaas v . Nor way [GC], no. 21980/93, § 59, ECHR 1999 ‑ III).

Prefect Erignac ' s murder, by three bullets in the back, was the first murder of a Prefect in France since Jean Moulin was killed in 1943 , and deeply shocked France . T he photo itself was ( alas ) neither more sensation al nor more shocking than the murder it depicted . There is no denying that, in this day and age, news is often conveyed in pictures and often, as in this case, the picture makes the news . It should also be remembered that the offending photograph had been shown on national and international t ele vision before it appeared in Paris Match .

Moreover , there is no doubt that Prefect Erignac was targeted as a public figure and because of his office – that , highly symbolically, of representative of the French State in Corsica . In deed , the offending publication was essentially a political comment , as witnessed by the title of the article ( “The Murdered Republic” ) and the ten o r of the text that went with the photograph .

Furthermore , pre cautions were taken when the photograph was publi shed . The body was visible only as a rather blurred, dark mass, face downwards, which made the picture less crude .

Also, more importantly , the case in point was indisputably a matter of public interest about which the press had a duty to inform and the public to be inform ed . The importance of the ev ent in that sense outweighed the private interest of the f amily . The situation could, of course, have been diffe rent , for example if the photograph had been taken in a private place , or by devious means , but that was obviously not the case here.

I cannot agree with the argument concerning the proportion ality and nature of the penalty , on which I find the judgment lays too much emphasis . Every penalty, by its very nature, has a deterrent effect ( on the clearly “chilling” effect the fear of sanctions has on the exerci s e by journalists of their freedom of expression, see , mutatis mutandis, Wille v . Liechtenstein [GC], no. 28396/95, § 50, ECHR 1999-VII; Nikula v . Finland , no. 31611/96, § 54, ECHR 2002-II; Goodwin , cited a bove , p. 500, § 39; Elci and Others v . Tur key, nos. 23145/93 and 25091/94, § 714, 13 N ovemb er 2003).

The chilling effect of the me a sure taken against the applicant company , even after the event , in so far as the Cour t stresses the fact that the family did not consent to the publication of the photo graph , can be considered as a setback for our case-law and might – in the long run – place the press in a difficult positi on . They would always be obliged to publish statements or apologies and would ultimately find it hard to play their role as watchdog in a democratic society .

I hope the Cour t has not pronounced judgment here on a question of princip l e, for if it has , since the public interest rarely comes across as clearly as it does in the present case, the appro a ch adopt ed by the majority could actually be detrimental to the interests of our de mocrati c societi es. I am thinking here of the numerous photograph s of politicians or public figures – of the assassination of President Kennedy or Prime Minister Indira Gandhi , for example, or the attempted assassination of Pope John-Paul II – which might not be published in the futur e .

For the reasons I have explained above , I do not share the opinion of the majorit y that there was no violation of A rticle 10 in the present case .

With all due regard to the Erignac family ' s grief and with all the sympath y the facts of the case lead me to express towards them , I must say that if one day I were asked to cite a case judged by this Cour t with which I was familiar and which was related to freedom of information and affected an e vident and undeniable public interest , I would cite this one .