25/10/2002 CONCURRING OPINION OF JUDGE COSTA

(Translation)

In the present case, like the majority of my colleagues, I found that there had been no violation of the Convention. I should like, however, to express a different opinion on certain points from the reasoning set out in the judgment, and to make some observations of a more general nature.

The line of reasoning in the judgment may be summarised as follows: the absolute nature of the immunity enjoyed by members of Parliament in respect of their statements serves an interest that is so important as to justify the denial of access to a court to seek redress. Accordingly, irrespective of the seriousness (see paragraphs 14-18 of the judgment) of the interference with the applicant's private and family life as a result of the speech by a member of Parliament, her rights under Article 6 § 1 and Article 8 of the Convention were not infringed. Thus far, I have no reservations about the approach followed.

However, I am not persuaded by the considerations set out in paragraph 86 to the effect that victims of defamatory misstatement in Parliament are not entirely without means of redress. In actual fact, the means in question, which are outlined in paragraph 27, appear to me to be more theoretical and illusory than practical and effective. This “justification” is, moreover, unnecessary, for if, as the majority consider, parliamentary immunity – even where absolute – is not contrary to the Convention (see paragraph 88 of the judgment), what is the use of seeking to show that it is not absolute? It would have been better to say nothing, or to point out that the applicant was a voter in the constituency of the MP who had made critical comments in the House of Commons identifying her by name, and that it would ultimately be for the voters to decide at the next election whether his attacks had been unjustified or excessive.

Similarly, I still find it odd that an impairment of the very essence of the right of access to a court should be measured according to the principle of proportionality (a point I have already raised in my concurring opinion annexed to Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, ECHR 2001-VIII – see also, along similar lines, the concurring opinion of Judge Ress joined by Judge Zupančič ). It is certainly consistent with the case-law to accept in cases which, to my mind, should be exceptional that an absolute restriction on the right of access to a court does not breach Article 6 § 1. But in such cases I find it illogical that a review of proportionality should be conducted besides . I shall not labour the point.

I should now like to make some more general remarks. As the third-party interventions make clear, parliamentary immunities exist throughout Europe , with slight variations, and I do not wish in any way to question the grounds for their existence. It is certainly essential for democracy that the

elected representatives of the people should be able to speak freely in Parliament (whether they should outside Parliament is a different matter), without the slightest fear of being prosecuted for their opinions (or for the way in which they vote). But should this sacrosanct principle not be tempered? Since the 1689 Bill of Rights or the 1791 French Constitution (in which the principle was first established in France ), relations between parliaments and the outside world have changed. Parliaments are no longer solely or chiefly concerned with protecting their members from the sovereign or the executive. Their concern should now be to affirm the complete freedom of expression of their members, but also, perhaps, to reconcile that freedom with other rights and freedoms that are worthy of respect.

In spite of the very serious accusations made against the applicant and the severe damage sustained by her and her children as a result, A. v. the United Kingdom did not, in my view, appear to lend itself to efforts to bring about such a reconciliation. In fact, I am not at all sure that it should be for a court, even one with the task of applying the Convention, “an instrument of European public order ( ordre public ) for the protection of individual human beings” (see Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, p. 31, § 93), to impose any particular model on the Contracting States in such a politically sensitive field. However, I am convinced that some progress in that field is desirable and possible on their part, and I was anxious to convey that point.