CONCURRING OPINION OF JUDGE PASTOR VILANOVA

(Translation)

1. In this case, the Court has found a violation of Article 10 of the Convention. I fully agree with that conclusion.

2. The case concerns the applicant’s criminal conviction for defamation of I.P. The offending statements concerning the latter had been made during an earlier criminal trial in which the applicant was accused of war crimes. I.P. was not involved in those proceedings, not even as a witness or a victim, but had simply attended some of the hearings as a member of the public.

3. I have reservations as to the approach taken by the majority in order to justify the aim of the domestic courts’ interference with the applicant’s right to freedom of expression. In paragraph 47 of the judgment two separate aims are juxtaposed in order to legitimise the interference. On the one hand, the protection of the reputation or rights of others. On this point I have nothing to say, since a conviction for defamation is indeed designed precisely to protect the good reputation of another person. On the other hand the majority, on their own initiative, add a second aim, namely that of maintaining the authority and impartiality of the judiciary. My conceptual difficulties centre on this second aspect.

4. According to our Court’s case-law, the phrase “authority of the judiciary” includes the notion that the courts are the proper forum for the resolution of legal disputes (see Worm v. Austria , 29 August 1997, § 40, Reports of Judgments and Decisions 1997 ‑ V). The clause relating to this safeguard is designed primarily to protect the judiciary against gravely damaging attacks that are essentially unfounded (see Morice v. France [GC], no. 29369/10, § 128, ECHR 2015), but also to protect the rights of litigants (see Observer and Guardian v. the United Kingdom , 26 November 1991, § 56, Series A no. 216).

5. The majority take the view that the authority and impartiality of the judiciary are at stake here owing to the nature of the remarks made by the applicant during the first criminal trial, which allegedly undermined (public) confidence in the Croatian criminal justice system. The majority refer to the Municipal Court judgment of 21 March 2012 (see paragraph 24 of the judgment), but unfortunately do not cite any specific passage. As a result, the judgment loses something of its readability. But the real issue here is quite different. In fact, the applicant was not convicted in the present case for criticising the Croatian judicial system or influencing a judge. No: he was found guilty of the offence of defamation with regard to a war veteran (see paragraph 10 of the judgment), I.P., who had no connection to the machinery of justice. It is true that, according to the Municipal Court’s assessment, the applicant attributed unlimited powers to I.P. to have him convicted. Nevertheless, it should be borne in mind that the applicant’s conviction was based solely on his defamatory statements concerning I.P. and not on any remarks attacking the justice system or an individual judge. What is more, there is nothing to suggest that I.P. ever faced any legal action for allegedly exerting pressure on prosecution witnesses in the context of the applicant’s trial for war crimes (see paragraph 77 of the judgment). Had that been the case, I would agree that his prosecution or conviction could be justified on the basis, among other elements, of the protection of the authority of the judiciary, which concerns all “persons involved in the machinery of justice” (see The Sunday Times v. the United Kingdom (no. 1) , 26 April 1979, § 56, Series A no. 30).

6. I agree that this case is about the freedom of expression of an accused in the context of his criminal trial, and especially in the defence of his case. Consequently, the right to a fair trial may come into play (see paragraph 64 of the judgment). Nevertheless, the paragraph in question comes under the section dealing with the violation of Article 10. This does not warrant what, in my humble opinion, is the questionable introduction of extraneous elements aimed at further justifying the interference. Freedom of expression applies across the board and does not stop at the courtroom door.