DISSENTING OPINION OF JUDGE DEDOV

I sincerely regret that I cannot share the opinion of my colleagues who have found a violation of Article 8 of the Convention.

The judgment concludes that the interference by police officers was unlawful, assuming that the footage in question was obtained in the framework of the operational-search activities and could therefore not be disseminated without the consent of the individual concerned (see paragraph 49 of the judgment). However, the Court has not established exactly what kind of activities or investigative measures within their jurisdiction were being conducted by the police officers at the time of the video-recording. I n any event, the fact that the applicant refused to take an alcohol test (see paragraphs 6 and 46) was sufficient for an administrative penalty to be imposed under Article 12.26 of the Russian Code of Administrative Offences (see paragraphs 20 and 29). No other investigative activities were therefore necessary.

As regards the legal basis under domestic law, section 3 of the 1991 Russian Police Act (which was in force at the material time ) required officials to respect human rights during their activities. Unfortunately, the Court did not take the opportunity to assess whether the police were entitled to invite the press on their own initiative, or whether they should have refrained from doing so, from the viewpoint of respect for the right to impart and receive information of public interest. Moreover, there is another important issue that should have been assessed by the Court: whether State officials should be limited by their functions or whether, as members of a democratic society, they are at liberty to provide information to relevant organisations (for example, the press, the prosecutor, the local legislature or the association of members of parliaments) that are directly empowered to react and/or to apply alternative measures (it should be noted that the legislature deprived the applicant of his seat after the events in question), unless there are any circumstances that might prevent the officials concerned (in this case, the police officers) from taking such action.

As to the latter criterion, it should be noted that the cameramen were invited by the police only after the applicant had refused to leave the police station, and that the only reason for inviting the journalists was the applicant ’ s own abusive behaviour (see paragraphs 6-8 of the judgment). Therefore, this case is completely different from cases in the United States where the footage in issue was found to have violated the right to privacy when a State agent invited a TV crew to videotape the search of an applicant ’ s house (see Ayeni v. Mottola , 35F. 3d 680, and Wilson v. Layne , 526 US 603) or when an arrested suspect was visibly displayed to the public while handcuffed (see Lauro v. City of New York , 39F. 2d 351).

The Court concentrated solely on a proportionality test without taking into account the fact that the applicant was a public figure and that the film footage made a contribution to a debate of general interest. Analysing various Russian laws in paragraphs 47 and 48 of the judgment, the Court could not find any legal basis to justify the invitation to the press, the video-recording and the further dissemination of the footage. However, the police are not prohibited from assisting the press in exercising its important role of “public watchdog” in a democracy by imparting information and ideas on matters of public interest. On the contrary, if the police refused to allow the press to film improper behaviour on the part of a public figure and to disseminate this information, the police would be at risk of violating the right to freedom of expression under Article 10 of the Convention.

Therefore, I believe that the Court should have applied the approach used by the Grand Chamber in the case of Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, ECHR 2012) in striking a balance between the conflicting rights under Article s 8 and 10 of the Convention. It should have taken into account the fact that the applicant was aware of the video-recording, but still turned disorderly and violent against the police officers. There was a clear public interest in the unethical behaviour of a public figure who had been driving while drunk, as he himself confirmed to the domestic court (see paragraph 15 of the judgment). From the ethics point of view, as a public figure, the applicant should have been “courteous both in his or her relations with the citizens he or she serves, as well as in his or her relations with his or her superiors, colleagues and subordinate staff” (see Article 5 of Recommendation No. R(2000)10 of the Committee of Ministers of the Council of Europe to member States on codes of conduct for public officials).

In this connection I would also cite an extract from the Committee of Ministers ’ explanatory memorandum (CM(2000)61, 20 April 2000) on the above-mentioned Recommendation:

“29. Elected representatives are usually responsible to their electorate and/or to their party. At the same time, the public interest requires from them accountability, transparency and integrity. ...

35. Codes of conduct should not be limited to addressing corruption. They should go further and promote high standards of ethical behaviour. They should state general principles covering lawfulness, diligence, efficiency and thrift, transparency, confidentiality and the handling of classified information, personal responsibility and independent judgement, fair dealing and integrity, and professional training. ...

63. These articles set out the public official ’ s general obligations to act lawfully, obediently, ethically and loyally. He or she is expected to be honest, impartial, conscientious, fair and just, and to act politically neutral, only in the public interest and with courtesy to all with whom he or she has contact.

64. He or she must not allow his or her private interests to affect, or appear to affect, his or her public position nor take undue advantage of that position ... It is for States to define the expression ‘ undue advantage ’ . However, it should be understood in a broad sense, as including not only advantages offered or given to the public official but also the avoidance of any disadvantages or burdens imposed upon him or her. Undue advantages are usually of an economic nature but may also be of a non-material nature.”

Ultimately, I must emphasise that the widespread misconduct of members of national legislative authorities – in particular, their disregard for traffic regulations, including those on drunken driving – is of an extremely high level of public interest as it is a significant problem in Russia, evidenced by hundreds of video records and written articles. This means that if a public figure commits an offence under the domestic law as a result of such improper and unethical behaviour, that fact should not be hidden from journalists, because the public function of the police coincides in this particular situation with the role of the press as a “public watchdog” – namely, to preserve the order necessary in a democratic society. I believe that it is not possible to achieve this task without cooperation between the police and the press.