DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

With the greatest respect for the opinion of the majority of my colleagues, I regret that I am unable to agree with the conclusion which the Court has reached in this case. My view is based on the following considerations:

1.   In the article giving rise to the case, the applicant called in question the impartiality of the two lay judges, both employees of the Local Government, in proceedings instituted against "their employer". In support of this position he cited Article 62 of the Danish Constitution.

2.   Since he was not a party to, nor had any direct or indirect personal interest in the initial proceedings, in which the Government was defendant, Mr Barfod had no motive for attacking the two lay judges individually. He called in question their impartiality not by criticising their actual conduct in the proceedings concerned, but by attacking the fact that they were government officials, in other words the fact that they were government employees sitting in a court which was supposed to be independent and impartial.

3.   Although these two lay judges were not strictly speaking politicians, I consider that this case has political overtones inasmuch as it involved criticism of a specific judicial system, namely the Greenland judiciary and its composition, which, in the applicant ’ s view, did not inspire public confidence.

It is in my opinion not possible to extract an a contrario argument from the Lingens case in which the Court held that "politicians" must be ready to accept more criticism than non-politicians (judgment of 8 July 1986, Series A no. 103, p. 26 para. 42). The Court did not of course mean by this that public criticism in political matters could be directed solely against politicians or that the assessment of State institutions and the position of those who, although not politicians in the strict sense, nevertheless take part in public affairs should be excluded from the arena of free discussion and democratic debate.

4.   Democracy is an open system of government in which the freedom of expression plays a fundamental role, as the Court stated in its judgment in the Handyside case (7 December 1976, Series A no. 24, p. 29, para. 49, and most recently in the Müller and Others judgment of 24 May 1988, Series A no. 133, p. 21, para. 32). I am in full agreement with the opinion of the European Commission of Human Rights when it states: ".... For the citizen to keep a critical control of the exercise of public power it is essential that particularly strict limits be imposed on interferences with the publication of opinions which refer to activities of public authorities, including the judiciary" (report para. 64); and "... even if the article in question could be interpreted as an attack on the integrity or reputation of the two lay judges, the general interest in allowing a public debate about the functioning of the judiciary weighs more heavily than the interest of the two judges in being protected against criticism of the kind expressed in the applicant ’ s article" (ibid. para. 71).

5.   I consider that what Mr Barfod said, admittedly in somewhat crude and extreme terms, was no different to what was, is or has been stated:

- by the Supreme Court of Greenland - which agreed with him that the two lay judges "ought ... to have considered themselves as disqualified and thus refrained from participating in the case" and that "the accused was correct in drawing attention to this" because they were "employed in leading positions by the defendant party" (judgment, para. 13);

- in Article 62 of the Danish Constitution and by the Danish Government - who "agree ... that the two lay judges to whom the applicant referred in his statement, as employed in leading positions by the defendant party, should have refrained from sitting because this relationship might raise doubt as to their impartiality" (report, para. 42);

- by this Court, on more than one occasion, in its judgments, when it has held that: Justice must not only be done, it must also be seen to be done.

6.   Finally, I wish to stress that it is difficult to reconcile the Convention, whose ultimate purpose is to establish European standards, with specific national features such as those put forward by the Government.

7.   For the above-mentioned reasons, I consider that this interference in the exercise of the applicant ’ s right to freedom of expression cannot be regarded as "necessary in a democratic society" and that there has therefore been violation of Article 10 (art. 10) of the Convention.

[*]  Note by the Registrar: The case is numbered 13/1987/136/190.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.