SEPARATE OPINION OF JUDGE DE GAETANO

1. I have voted for a violation in this case. Nevertheless I am not in agreement with what is stated in paragraph 39 of the judgment.

2. It has long been established in the case-law of the Court that for the interference with the freedom enshrined in the first paragraph of Article 10 to be “prescribed by law” in the sense of the second paragraph thereof, the law must satisfy the test of foreseeability; or, in the words of the High Court of Justiciary in Scotland in the case Smith v. Donnelly [2001] ScotHC 121, at 8 – a case which dealt with the generic offence of breach of the peace, and in the context of Article 7 – the “law creating a criminal offence must meet a certain standard of clarity and comprehensibility”. This applies wherever the expression “prescribed by law” is used in the Convention. Reference is made, inter alia , to Müller and Others v. Switzerland , no. 10737/84, 24 May 1988, § 29; Groppera Radio AG and Others v. Switzerland no. 10890/84, 28 March 1990, § 68; Hashman and Harrup v. the United Kingdom 25594/94, § 31; and, in the context of an alleged violation of Article 8, S. and Marper v. the United Kingdom , nos. 30562/04 and 30566/04, 4 December 2008, §§ 95-96.

3. In the instant case the generic offence was “petty hooliganism”. Hooliganism implies behaviour which is objectively unacceptable because of its public nuisance element. Article 173 of the legislation under which the applicant was arrested and convicted (see paragraph 16 of the judgment) indicates only one specific instance of such unacceptable behaviour – swearing in public – the other descriptions given, namely “offensive behaviour or other similar actions which amount to a breach of the peace or disturb public order”, being generic and vague. The Theoretical and Practical Commentary to the Code referred to in paragraph 17 gives other examples of petty hooliganism. Even if these examples were taken from decided cases – and this is not clear from the aforesaid paragraph 17 – there is nothing in these examples which could even remotely justify, by application of the eiusdem generis principle, the conclusion that detaching part of a ribbon and disposing of it in the manner described in paragraphs 8 and 9 amounts to offensive behaviour or to a breach of the peace, or to action or actions which disturb public order, as contemplated in the above-mentioned Article 173. There was no “public nuisance” element in the applicant’s conduct; and even if it was “a provocative gesture likely to disturb or insult some of the many people who witnessed it”, which I do not believe to be the case, it certainly did not amount to a breach of the peace (actual or reasonably apprehended) or to a disturbance of public order. When the applicant removed the ribbon, the official ceremony was over, and the Government did not submit anything to the effect that the applicant’s actions were likely to lead, in the concrete circumstances of the case, to even some minor disturbance.

4. In sum, therefore, the interference with the applicant’s right of freedom of expression failed, in my view, to meet the first test, that is, it was not “prescribed by law”, and it was therefore not necessary to go into the question of the legitimate aim of the interference or of whether it was “necessary in a democratic society.”