CONCURRING OPINION OF JUDGE ROZAKIS JOINED BY JUDGES BAKA AND LORENZEN

The only reason which has led me to vote in favour of finding a violation of Article 10 of the Convention, in the particular circumstances of this case, is that the amount awarded to the plaintiffs and paid by the applicant was disproportionate to the wrong done by the latter and did not strike the right balance between the interests of society in protecting the reputation of private persons and the right of the individual to express his opinion freely in an open, democratic environment. Indeed, the payment of some 220,000 Slovakian korunas in damages and legal costs ordered by the courts was a very high amount by the country’s standards – the equivalent of twenty-five average monthly salaries at the relevant time, as the applicant correctly states – which exceeded, to my mind, the degree of severity of sanction that the courts ought to attribute in a civil case to the transgression committed by the applicant. As the Court rightly notes in paragraph 58 of the judgment, the reasons relied on by the domestic courts to justify the amount of compensation do not appear sufficiently convincing since, inter alia , disciplinary proceedings against H. were brought prior to the publication of the applicant’s open letter and, hence, any damage she may have suffered cannot be imputed to the applicant.

On the other hand, I am unable to follow the other parts of the reasoning of the Court which led it to find a violation of Article 10. A perusal of the relevant paragraphs – and, more particularly, the conclusive findings of paragraph 57 – creates the impression that the Chamber underestimates the autonomous significance of the applicant’s letter (regardless of the practical impact that it may have had) for the reputation of the plaintiffs. The fact is that in dubious factual circumstances where – as the domestic courts found – the right of the applicant to occupy the flat was not absolutely established, the latter wrote a defamatory open letter addressed to the Prime Minister which was posted up at several tram and bus stops in Bratislava . In that letter, he severely criticised the claimants, presenting his own subjective point of view, and exposed them to public criticism. In my view, the paragraph which states that “[A.] and his wife lied to me when they said they had no place to live and alleged that because of this they would not vacate the flat. I point out that [H.] is a public prosecutor (!). If our newly born democracy has legal representatives like this, it will not outlive its childhood and we can bury it right away. The judiciary should first and foremost ensure that the law is respected and justice upheld in the State. But what is our judiciary like?” contains harsh language which cannot easily be reconciled with the respect which is owed by one individual to another and the intrinsic duty of the members of a democratic society to

protect each other from undue harm to their reputation.

It should not be forgotten, at this juncture, that the freedom of expression enshrined in Article 10 of the Convention is not absolute and that the protection afforded by it, according to the Court’s case-law, does not apply to all forms of expression. The freedom of journalists to express their opinions freely through the media is, for example, different from that of a private individual; the degree of tolerance that a politician must show vis-à-vis public criticism is different from the degree of tolerance that may be expected of a private individual who does not participate actively in public matters and is not obliged, unlike a politician, to be constantly exposed to the public eye. It is a commonplace in the Court’s case-law that a private individual’s reputation is a precious element of his or her personality and should be carefully guarded from undue interference, particularly when it comes from another private individual acting in his or her own interests.

The situation before us is exactly one where a private individual, acting in pursuance of the protection of his own private rights and not wider social concerns, attacks the reputation of another private individual (A.) and his wife (H.). Admittedly, H. had her share of public life – being a public prosecutor – but in no way did that attain the level of a politician’s responsibility and, hence, the higher degree of exposure to public criticism; the matter was of a purely private nature, and her responsibility (if any) for the initiatives of her husband or of the family as such was not easily discernible. And in any event, even assuming that H. had to have a high level of tolerance of public criticism because of her duties, A. who, after all, was the person directly involved in the conflict with the applicant, had no public office and no obligation to expose himself to harsh public criticism.

For all these reasons, and given the very dubious circumstances of the present case regarding the degree of responsibility of the main actors, I cannot agree with the Court when, in finding a violation, it considered that the applicant’s criticism of A. and H. was not excessive.

PARTLY DISSENTING OPINION OF JUDGE BONELLO

I record my unease at the majority’s view that the finding of a violation of Article 10 “constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant”. In other words, the majority accepts that the applicant did suffer non-pecuniary damage, but “sees no reason to award the applicant any sum under this head” (see paragraph 67 of the judgment).

To establish that the fundamental rights of the applicant have been flouted and that the violation caused the applicant non-pecuniary damage, while failing to entertain any possibility of compensation, in my view renders the protection of the Convention nugatory. The Court gives the applicant a hallowed testimonial certifying him as the victim of human rights violations; it then hastens to invite him to grin and bear it. Immunity endures.

In this case, particularly compelling circumstances demanded the award of damages for pain and suffering. The Court accepts that the applicant acted in good faith (see paragraph 56 of the judgment). After being, in his view, undeservedly deprived of a flat to which he believed he was entitled by law, he was subjected to civil proceedings for defamation. The association of these two events must inevitably have inflicted an oppressive burden of frustration and anguish on the applicant’s peace of mind. The fact that the Bratislava District Court responded to his cri de cœur by ordering him to pay exorbitant damages could only have fortified his belief that he was being singled out to be made an example of. For this he was awarded the grand sum of zero compensation.

It is ironic that in a case where the violation of the Convention lay in the award of inordinate compensation for non-pecuniary damage against the applicant, no compensation for non-pecuniary damage at all was awarded in his favour. The pain and the suffering of the applicant’s victims have a price. His don’t.