CONCURRING OPINION OF JUDGE CARRILLO SALCEDO

I fully share the views expressed by the Court at paragraph 46 of the judgment. I should like to stress that freedom of expression constitutes one of the essential foundations of a democratic society. But I must also emphasise that the exercise of that freedom "carries with it duties and responsibilities" (Article 10 para. 2 of the Convention) (art. 10-2), and that, in a situation where politically motivated violence poses a constant threat to the lives and security of the population, it is particularly difficult to strike a fair balance between the requirements of protecting freedom of expression and the imperatives of protecting the democratic State.

By providing, in Article 10 para. 2 (art. 10-2), that the exercise of the freedom of expression and the freedom to hold opinions and to receive and impart information and ideas "may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society", the Convention recognises that these freedoms are not absolute. Moreover, the Convention also recognises the principle that no group or person has the right to pursue activities which aim at the destruction of any of the rights and freedoms enshrined in it (Article 17) (art. 17); that implies in addition, in my view, positive obligations for the States parties.

Therefore, it remains open to the States to adopt measures, even of a criminal law nature, intended to react appropriately and without excess, that is, in conformity with the Convention requirements, to defamatory accusations devoid of factual foundation or formulated in bad faith.

[*]  The case is numbered 2/1991/254/325.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 236 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

[1] Paragraph 48 of the judgment. See the first and second paragraphs of the article (paragraph 7 of the judgment).

[2] Title of the article and paragraphs 45 and 48 of the judgment.

[3] Paragraph 39 of the judgment.

[4] See in particular the third and sixth paragraphs of the article.

[5] Paragraph 39 of the judgment.

[6] Last paragraph of the article and paragraphs 39 and 45 of the judgment.

[7] Paragraph 45 of the judgment.

[8] See on this point the separate opinion of Mr Pekkanen, p. 29 below, and, mutatis mutandis, the Lingens v. Austria judgment of 8 July 1986, Series A no. 103, pp. 27-28, paras. 45 and 46.

[9] I cannot therefore approve the "strengthened protection" afforded the Government under Articles 161 and 162 of the Spanish Criminal Code (paragraph 20 of the judgment).