DISSENTING OPINION OF JUDGE SERGHIDES

1 . The present opinion is not a fully-fledged one, but rather a statement of opinion.

2 . Regrettably, I disagree with the Court ’ s finding that there has been no violation of Articles 10 and 6.

3 . The applicant was convicted of inciting hatred and enmity and debasing the human dignity of a person or group of people on account of their ethnicity, and was sentenced to a prohibition on exercising any journalistic or publishing activities for two years and, in addition, to a fine of 200,000 Russian roubles (5,086 euros at the time) for each time his article had been published. It is to be noted that the article was published twice.

4 . Regarding Article 10, the Court in the present case adhered in principle to its previous well-established case-law on the interpretation of Article 10 § 2, according to which “freedom of expression is subject to exceptions which must, however, be construed strictly, and the need for any restrictions must be established convincingly” (see paragraph 48 of the judgment). This is rightly stated, since it is a requirement or aspect of the principle of effectiveness that limitations or restrictions to rights should be construed strictly and narrowly. However, in my view, the Court followed only in theory, and not in practice, its previous approach regarding the interpretation and application of restrictions to freedom of expression. Although the Court stated that it was applying that approach to the facts of the present case, in my view it did not do so. I contend that the restrictions imposed on the applicant were not necessary in a democratic society; the interference complained of was based on reasons which in the light of the case as a whole were not “relevant and sufficient” to justify it. Furthermore, in my opinion, the sentence imposed on the applicant, prohibiting him from exercising any journalistic or publishing activities for two years (in addition to the penalty of a fine, which was also high), was disproportionate in the circumstances, thus violating the applicant ’ s rights under Article 10 and the principle that the press must be able to perform the role of a public watchdog in a democratic society. This principle was enunciated, inter alia, in Cumpănă and Mazăre v. Romania ([GC], no. 33348/96, ECHR 2004 ‑ XI) , where the Court considered “that by prohibiting the applicants from working as journalists as a preventive measure of general scope, albeit subject to a time-limit, the domestic courts contravened the principle that the press must be able to perform the role of a public watchdog in a democratic society” (§ 119).

5 . As regards Article 6 § 1, with due respect to the majority I maintain that the fact that the applicant was not afforded the opportunity to question witness F., a specialist in philology, undermined his rights as a defendant and offended the overall fairness of the criminal proceedings in respect of his rights under Article 6 §§ 1 and 3 (d) and the principle of effectiveness. The right to examine witnesses under Article 6 § 3 (d ) is a minimum right for everyone charged with a criminal offence. Not permitting the applicant to cross-examine witness F. rendered the protection of his right to a fair trial under Article 6 neither practical nor effective. Any other interpretation of Article 6 would not reflect its purpose and the notion of fair trial. That the evidence of this witness was not favourable to the applicant is clear from the judgment (see paragraphs 17, 26 and 81). The domestic courts provided no reasons for dismissing the applicant ’ s request to have witness F. examined (see paragraphs 81 and 84 of the judgment), notwithstanding that witness F. ’ s report had been admitted in evidence (ibid.), such that it was unavoidable that it had some influence on the domestic judges ’ thinking.

6 . Since I am in the minority, it would be a purely theoretical exercise to determine the amount of non-pecuniary damage I would award to the applicant for the above two violations. Hence, I will abstain from dealing with this issue.

[1] . In his application before the Court the applicant argued, however, that the text reflected his own views as a private person (a voter), a newspaper’s correspondent and leader of the local branch of the Democratic Party of Russia .

[2] . The fine for the second offence was then converted into two hundred hours of community work, on account of the applicant’s failure to pay the fine.