P ARTLY CONCURRING OPINION OF JUDGE CABRAL BARRETO

With much regret I have to dissociate myself from the majority ' s reasoni ng concerning the violation of A rticle 6 of the Convention.

If I agree with the majority who f ou nd a violation of Article 6 with respect to equality of arms , lack of legal certainty, rule of law and presumption of innocence, I shall disagree with the ir reasoning and the conclusion that the article 6 § 1 of the Convention was violated with respect to independence and impartiality of the courts dealing with the case and the lack of reasons for a judicial decision because I share the reasons developed by my colleague judge Antonella Mul aroni in her concurring opinion .

PARTLY CONCURRING OPINION OF JUDGE MULARONI

While I am in agreement with the operative provision of the judgment holding that there has been a violation of Article 6 § 1 of the Convention, I do not completely agree with the reasoning followed by the majority, nor with all aspects of its analysis.

I agree with the reasoning and the finding of a violation of Article 6 § 1 of the Convention with respect to the equality of arms (see paragraphs 87-88 of the judgment) and to legal certainty, rule of law and presumption of innocence (see paragraphs 93-97 of the judgment). However, I disagree with the reasoning and the conclusion that Article 6 § 1 was violated with respect to independence and impartiality of the courts dealing with the case (see paragraphs 80-86 of the judgment) and the lack of reasons for a judicial decision (see paragraphs 89-92 of the judgment).

1. As to independence and impartiality of the courts dealing with the case, the majority correctly points out that the applicant ' s submissions of Judge T. of the Kuybyshevsky District Court of Donetsk being influenced by political motives and instructed by the Head of the Regional State Administration are of little assistance in assessing his complaints as to the lack of independence and impartiality of the courts dealing with the case (see paragraph 82 of the judgment). However, having said that, the majority embarks on a reasoning of general character concerning the insufficiency of domestic legislation, which I consider of little help in examining the case and which leaves room to considerable doubts as to the possibility of finding a violation of Article 6 § 1 (see paragraph 83 of the judgment).

The majority examines afterwards the issue of impartiality of the judge hearing the case, underlying that he was legally bound by the instructions of the Presidium of the Regional Court that quashed the previous resolution and remitted the case for consideration on its merits. It furthermore develops a series of statements that I have great difficulties to follow (see paragraphs 84-85 of the judgment). I consider that the system in force in Ukraine (at least at the material time) could be, mutatis mutandis , compared to the cassation procedure and to such a well-known institution in a considerable number of contracting States as remittal of the case to lower courts for consideration on the merits. Following the reasoning adopted by the majority as to the applicant ' s doubts with respect to the impartiality of the judge of the Kuybyshevsky District Court of Donetsk (see paragraph 8 6 of the judgment), I am afraid that more serious doubts could be raised by future applicants as to impartiality of the judges called to examine the culpability of the accused after a decision by Cassation Courts on remittal of the case for consideration on the merits. It seems to me that the conclusion that “the applicant ' s doubts as to the impartiality of the judge of the Kuybyshevsky District Court of Donetsk may be said to have been objectively justified” is not only a far-reaching one, but could have undesired consequences for the future.

As to “insufficient legislative and financial guarantees against outside pressure on the judge hearing the case” and, in particular, “the lack of such guarantees in respect of possible pressure from the President of the Regional Court”, I consider such argument very weak to justify the finding of a violation of Article 6 § 1, partly for the reasons stated above, partly because it could inter alia and in the absence of any evidence give the idea that the judge was corrupt.

For all these reasons I cannot follow the majority when it concludes that a violation of Article 6 § 1 of the Convention should be found as to independence and impartiality of the courts dealing with the case.

2. As to lack of reasons for a judicial decision (see paragraphs 89 – 92 of the judgment), it seems to me that the majority draws its conclusions as a consequence of the analysis developed with respect to the issue of independence and impartiality of the courts dealing with the case. Reading the judgment of the District Court of 6 July 2000 (see paragraph 28 of the judgment), I cannot conclude that such a judgment was insufficiently reasoned. It is at least as much reasoned as lots of other judgments where the Court has considered that no problem arose under Article 6 § 1 in this respect. In the light of the considerations expressed at first paragraph above, I am not convinced that the District Court should have stated why it had originally found no evidence to convict the applicant and remitted the case for additional investigation and yet, on 6 July 2000, following the Presidium of the Donetsk Regional Court resolution of 5 April 2000 (see paragraph 24 of the judgment), had found the applicant guilty of interfering with voters ' rights.

As a consequence, I cannot conclude that a violation of Article 6 § 1 of the Convention should be found as to lack of reasons for a judicial decision.

***

As to Article 10, I agree with the majority who found a violation. However, the only reason for me to find a violation is that the interference with the applicant ' s rights was disproportionate, as the penalty was extremely severe (see paragraph 115 of the judgment).

I do not underestimate the gravity of what the applicant did. The Court states – and I completely agree – that the article should be described as a false statement of fact. The information was no doubt false, Mr Kuchma being alive. It was a clear dissemination of false information with respect to an important aspect of life of the country, namely the election of its president. Even assuming that the article could be considered as contributing to a discussion of a general interest or on political issues, I am not satisfied that the applicant was acting in good faith in order to provide accurate and reliable information to the other persons (see, among many authorities, Colombani and Others v. France , n o. 51279/99, § 65 , ECHR 2002 ‑ V ). The applicant could have tried to verify if the information was true or false before (and not after) disseminating an article that leaves no doubt as to the alleged truth of the information. I am not ready to consider that freedom of expression entails the right to disseminate false information, maybe for the purpose of advantaging a different presidential candidate.

The Court repeatedly stated that the press must not overstep the bounds set, inter alia , for the protection of the reputation of others ( see Colombani judgment cited above , § 56). Everyone ' s freedoms and rights encounter limits when freedoms and rights of others exist.

If, according to our case-law, even a value judgment can be considered not protected by Article 10 of the Convention when it is devoid of factual basis, I consider that the false statement of fact disseminated by the applicant should not get better protection.

[1] . EUR 32.82.

[2] . EUR 194.73.

[3] 1. Approximately UAH 51 to UAH 102, or 10-20 euros.

[4] . EUR 32.82.

[5] . EUR 194.73.

[6] . EUR 32.82.