DISSENTING OPINION OF JUDGE SAJÓ

I regret that I am unable to agree with the majority that there ha s been a violation of Article 10 of the Convention in this case. My reasons are the following .

In the present case the domestic courts found the applicant guilty of criminal defamation and sentenced her to six months ’ imprisonment, suspended for a period of two years. Her appeal against the conviction is still pending before the Constitutional Court. Whatever her allegations about her lawyers were, and whatever one thinks about prison sentence s in a defamation case (a solution abandoned by Serbia in the meantime ), the punishment indicates that the offen c e must have been a serious one. The present case concerns the applicant ’ s loss of her case in civil proc eedings on the same factual grounds.

Specifically, the case involves an interference with the applicant ’ s freedom of expression. The limitation of her freedom of expression was found by the domestic courts to serve the legitimate goal of protecting reputation, in accordance with Article 10 § 2 of the Convention. I personally agree with the methodology which the Court applied in this case, namely that the limitation of freedom of expression is a matter to be considered within the four corners of Article 10 only, and an interference with freedom of expression is a matter of proportionality under that Article (see Karakó v. Hungary , no. 39311/05, 28 April 2009 ) . However, more recently the Grand Chamber , in determining a conflict between the rights to reputation (private life) and free speech , found that

“the outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher who has published the offending article or under Article 8 of the Convention by the person who was the subject of that article. Indeed, as a matter of principle these rights deserve equal respect . ” ( Axel Springer AG v. Germany [GC], no. 39954/08 , § 87, 7 February 2012 )

In the present case t he conflict of the applicant ’ s freedom - of - expression rights and the private - life rights of the defamed lawyer triggers a balancing exercise:

“Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts.” ( ibid. , § 88)

Irrespective of the methodology chosen , there are certain elements in the circumstances surrounding the statements at issue that influence the balancing exercise or determine the level of scrutiny for the purposes of the analysis of proportionality. These are, among other factors, the position of the allegedly defamed person (public figure), the function of the speaker (social watchdog function), the nature of the discourse (speech on matters of public interest), the veracity of the statements made , and whether they were made in good faith (see, among other authoritie s, Axel Springer AG , cited above ). None of these elements is present in this case: here, the applicant willingly and actively brought to the knowledge of the general public a factually untrue, defamatory statement which was likely to have severe consequences for the defamed person (that is, debarment). The Court ’ s reference to the existence of an investigation following the complaints made by the applicant against the lawyer cannot be regarded as an indication that there was any truth in the allegations: where a matter is reported to the authorities they have to handle the matter seriously. The result of the investigation is what matters: in this case, given the interests of the defamed lawyer in protection of his reputation , the award was neither irrational nor disproportionate. The private interest in express ing personal discontent by disclosing false factual allegations to the general public is not a matter protected by the Convention. It is probable that the application should have been rejected as an abuse of the right of individual application .

Nor does the Court claim that a n interest in free speech is really affected here. The Court brings a novel consideration into the analysis of proportionality, namely exclusive reliance on the alleged severity of the civil sanction imposed. In other words, Article 10 is applied in the total absence of a n interest in freedom of expression. It is true that the Court asserts that the statement at issue cannot be held to be merely a gratuitous personal attack , seeing that the applicant ’ s request to take over as a subsidiary prosecut or was not rejected for some time (see paragraph 66 of the judgment) . S uffice it to say , however, that the complaint did not concern the disputed statement and was barred by the statute of limitations, and the delay cannot be held in any way to be an indication of the factual correctness of the allegation. Likewise, I have difficulties in follow ing the second argument put forward by the Court, namely that there is a public - interest element present, given the role of lawyers in the proper administration of justice. This uncontroversial truth cannot be seen to be relevant here, as the statement related to a personal grievance. In the present case the activities of the lawyer cannot be attributed to the S tate ; the lawyer acted within the traditional client-lawyer relationship without any impact on the public interest in the administration of justice.

I do not think that compensation in the law of tort (as long as the compensation is not unreasonably connected to the injury caused) should be calibrated by taking into consideration the alleged financial difficulties of the party causing injury. Freedom of expression entails responsibilities, and these responsibilities cannot be different on the grounds of existential difficulties affecting the speaker. Poverty cannot be an excuse for irresponsible private injury. Moreover, the State cannot be held responsible for compensating for the financial losses of indigent people when they cause injury, especially where the values of freedom of expression are not at stake.

Furthermore , the approach applied in this case seems to tip the balance between the rights in question to the detriment of reputation and private life. An individual will receive fair compensation only if there is a deep pocket to compensate that individual. This logic is hard to reconcile with the fundamentals of modern tort law, which is based on the assumption that the damage caused has to be undone, irrespective of the status of the parties involved. People are entitled on an equal footing to the protection of their reputation. The national law did allow for compensation in instalments , and therefore an element of “clemency” or flexibility reflecting the applicant ’ s personal difficulties is present here. The domestic courts applied the discretion granted by law. It is not for an international court of human rights to review the equity of these lawful discretionary powers.

The Court relies on Tolstoy Miloslavsky v. the United Kingdom ( 13 July 1995, Series A no. 316 ‑ B ) . In that case the applicant and the Commission were of the view that the amount of damages awarded – 1.5 million pounds sterling (GBP) – was disproportionate to the legitimate aim of protecting Lord Aldington ’ s reputation or rights ( ibid., § 46). The Court found in that case that under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered ( ibid., § 49). This principle was not contested in the present judgment ; considerations regarding the injury to reputation suffered are different from the alleged financial difficulties an award imposes on a person who defames someone else.

It is true that reasoning similar to that in the present case was adopted in Koprivica v. Montenegro ( no. 41158/09 , 22 November 2011 ) , cited in the judgment . That case concerned factually incorrect journalistic information on a matter of the utmost public interest , and it was left undecided to what extent the applicant was able to prove his allegations in the domestic court. It would not be appropriate to speculate in this dissent as to the existence of additional reasons for the finding of a violation in that case. S uffice it to say that the excessive sanctions imposed on a journalist had a clear chilling effect on news - gathering, and it was not the mere existential difficulty caused by the award made by the domestic courts that justified the finding of a violation.

I would like to mention one more authority which was relied upon in the Court ’ s reasoning. Steel and Morris v. the United Kingdom ( no. 68416/01, § 96, ECHR 2005 ‑ II ) contains the following passage:

“ ... the Court considers that the size of the award of damages made against the two applicants may also have failed to strike the right balance. Under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered (see Tolstoy Miloslavsky v. the United Kingdom , [cited above,] § 49). The Court notes on the one hand that the sums eventually awarded in the present case (GBP 36,000 in the case of the first applicant and GBP 40,000 in the case of the second applicant), although relatively moderate by contemporary standards in defamation cases in England and Wales, were very substantial when compared to the modest incomes and resources of the two applicants. While accepting, on the other hand, that the statements in the leaflet which were found to be untrue contained serious allegations, the Court observes that not only were the plaintiffs large and powerful corporate entities but that, in accordance with the principles of English law, they were not required to, and did not, establish that they had in fact suffered any financial loss as a result of the publication of the ‘ several thousand ’ copies of the leaflets found by the trial judge to have been distributed.”

I mentioned above that Tolstoy Miloslavsky was concerned with the proportionality of the award to the injury suffered, and that in this regard the consideration of the defendants ’ position is a non sequitur . The Tolstoy Miloslavsky argument as applied in Steel and Morris may seem to stop short of a non sequitur, but it is not a statement of principle: what matters for the Court is that the corporate plaintiffs did not establish that they had suffered any financial loss. It is of more interest that the leaflets distributed in that case concerned a matter of public interest, and that there was a violation of Article 6 that had an impact on the protection of the freedom of expression.

I understand that the applicant in the present case might be in a very difficult situation as a consequence of the debt she has incurred, and that she has a serious medical condition. In substance, her claim amounts to an allegation of deprivation of possession s ( namely a pension) resulting in her health being endangered . This might exceptionally fall within the am bit of Article 1 of Protocol No. 1. However, it seems to me that the deprivation of possessions was legitimate, that it serve d the public interest (enforcing civil liability for damage caused) and that it was not disproportionate to that goal. Equitable considerations do not seem to play a role in the case-law of this Court, beyond the concept of “ individual and excessive burden ” , even assuming that this case involved an issue of possession s .