CONCURRING OPINION OF JUDGE O ’ DONOGHUE

I agree with the conclusions in the separate opinion of Judge Zekia and with his reasoning on questions 1 and 2.

CONCURRING OPINION OF JUDGE EVRIGENIS

(Translation)

Although I voted with the majority of the Court on all the items in the operative provisions of the judgment, I consider that the interference, as grounded in law by the decision of the House of Lords, could not be regarded as "prescribed by law" within the meaning of the Convention.

The restrictions on the right to freedom of expression which are provided for in paragraph 2 of Article 10 (art. 10-2) constitute exceptions to the exercise of that right. As such, they not only must be narrowly interpreted ( Klass and others judgment of 6 September 1978, Series A no. 28, p. 21, para. 42, cited at paragraph 65 of the judgment in the present case) but also presuppose a definition in domestic law which is sufficiently clear and unambiguous, thus permitting anyone exercising his freedom of expression to act with reasonable certainty as to the consequences in law of his conduct.

It would be difficult to affirm that the action taken against the applicants fulfilled this condition. In the United Kingdom , the uncertainty of the law of contempt of court often gives rise to criticism in literature and judicial decisions, as well as in the reports of various commissions of enquiry or reform (see Report of the Committee on Contempt of Court, 1974, Cmnd. 5794, para. 216, sub-paragraphs (4) and (5)); this feature was highlighted by the application of that law by the House of Lords in the present case, through the "prejudgment principle" (see the direction issued by the House following its judgment). It is significant, firstly, that the majority of the Commission hesitated to give a direct ruling on the merits of this question (Commission ’ s report, paragraph 205) and, secondly, that the references appearing in the Court ’ s judgment in support of the view that the interference based on the decision of the House of Lords was "prescribed by law" are not very convincing. The Court ’ s judgment cites, in particular, two precedents (see paragraphs 51 and 52). The first, Vine Products Ltd. v. Green (1966), which was based on the "pressure principle", was criticised several times by the Law Lords in the context of the present case. The second, Hunt v. Clarke (1889), does not appear to have motivated the decision of the House of Lords when defining the "prejudgment principle". Again, it is striking that the latter principle was not the legal basis for any of the decisions rendered in this case by the other English courts, including the decision of the Divisional Court which in 1976, three years after the judgment of the House of Lords, discharged the injunction. If, consequently, one has to conclude that the principle justifying the interference under domestic law appears new (see C.J. Miller, in The Modern Law Review, vol. 37 (1974), p. 98), its implementation by the highest national court proves to be incompatible with the requirements of Article 10 (2) (art. 10-2) of the Convention.

Of course, no one can disregard the special features of a domestic legal system in whose formation case-law is traditionally called upon to play a prominent role ; neither can anyone lose sight of the fact that the delimitation of the restrictions mentioned in Article 10 (2) (art. 10-2) of the Convention employs indeterminate concepts which do not always sit well with the existence of legal rules of conduct that are quite precise, certain and foreseeable in their identification by the judge. Nevertheless, there was an obligation on the Court to be more prudent before adopting a generous interpretation of the phrase "prescribed by law"; the consequence of such an interpretation would be to weaken the principle of the rule of law and to expose a fundamental freedom, which is vital to the democratic society envisaged by the drafters of the Convention, to the risk of interferences that cannot be reconciled with the letter and spirit of that instrument.