PARTLY DISSENTING OPINION OF JUDGE POWER-FORDE

I agree with the majority’s finding that there has been a violation of the applicant’s right to freedom of expression. I disagree that this finding in itself constitutes just satisfaction. Notwithstanding the fact that the penalty imposed upon the applicant was light, he was nevertheless subjected to the ordeal of criminal proceedings and convicted of a criminal offence for exercising his right to freedom of expression. This, by any standards, must have caused anxiety, apprehension and distress. The majority, in my view, should not have departed from the Court’s usual practice in Article 10 cases [1] and should have awarded the applicant the modest compensation which he sought. To my mind, he was entitled to something more than “ a mere moral victory or the satisfaction of having contributed to enriching the Court’s case-law ”. [2]

As to that case-law, I appreciate the distinction drawn by the majority between the position of the applicant and those in Colombani and Others v. France . [3] However, I would add that the rationale behind the criminal offences in issue was the same, namely, to confer upon heads of State a special legal status “ shielding them from criticism solely on account of their function or status, irrespective of whether the criticism is warranted ”. In Colombani and Others (§ 68) the Court found that such a special privilege “ cannot be reconciled with modern practice and political conceptions ”. Whatever the obvious interest which every State has in maintaining respect for its head or friendly relations with heads of other States, “ such a privilege exceeds what is necessary for that objective to be attained ”. The Court in Colombani and Others took the view that the existence of such an offence was liable to inhibit and undermine freedom of expression without meeting any “pressing social need” that was capable of justifying such a restriction (ibid., § 69). To my mind, the majority should have affirmed the applicability of that principle in the context of the present case.

DECLARATION BY JUDGE YUDKIVSKA

I voted against point 3 of the operative part of the judgment for the reasons expressed by Judge Power-Forde in her separate opinion.

PARTLY DISSENTING OPINION OF JUDGE PEJCHAL

The Explanatory Report to Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention, sets out a new admissibility criterion, its paragraph 80 reading as follows:

“The main element contained in the new criterion is the question whether the applicant has suffered a significant disadvantage. These terms are open to interpretation (this is the additional element of flexibility introduced); the same is true of many other terms used in the Convention, including some other admissibility criteria. Like those other terms, they are legal terms capable of, and requiring, interpretation establishing objective criteria through the gradual development of the case-law of the Court.”

It follows from this paragraph that there are two important elements:

1. The main element – “a significant disadvantage suffered”.

2. The additional element – “its openness to interpretation”.

Why is the question whether a significant disadvantage has been suffered by the applicant laid down as the main element of the new admissibility criterion? Because this element has to form an integral part of all consideration by the Court of a violation of any Article of the Convention. And why is this element open to interpretation? It is a matter of fact that any consideration by the Court implies interpretation of the Convention.

Nonetheless, every international treaty must be interpreted within the limits of international law. Any consideration of the Court is also bound by international law. The general rule of interpretation of international treaties is provided for in the Vienna Convention on the Law of Treaties, in Article 31 § 1 thereof, which reads as follows: “ A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. ”

A judgment of the Court is not a philosophical disputation as to whether the Convention may have been violated. A judgment of the Court is an individual decision on an alleged violation of the Convention which incorporates an individual decision as to a significant disadvantage which the applicant has suffered. I agree with the majority that this case can be generally judged as a violation of Article 10 of the Convention. However, I do not see in the complaint under Article 10 any significant disadvantage suffered by the applicant. The suspended penalty of 30 euros cannot, in my opinion, be considered consonant with the “ordinary meaning” of a significant disadvantage. Moreover, the same majority (including myself) considered that the criminal trial was in compliance with Article 6 § 1 of the Convention, or more precisely declared the complaints under Article 6 § 1 of the Convention inadmissible.

For the absence of a significant disadvantage I suggested that the complaint under Article 10 of the Convention be declared inadmissible.

[1] See, for example, Oberschlick v. Austria (no. 2) , 1 July 1997, Reports of Judgments and Decisions 1997 ‑ IV; Jersild v. Denmark , 23 September 1994, Series A no. 298; Lingens v. Austria , 8 July 1986, Series A no. 103; Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999-I; Roemen and Schmit v. Luxembourg , no. 51772/99, ECHR 2003-IV; and Marchenko v. Ukraine , no. 4063/04, 19 February 2009.

[2] A phrase used in paragraph 2 of the partly dissenting opinion of Judge Casadevall joined by Judges Bonello and Kovler in Kingsley v. the United Kingdom [GC], no. 35605/97, ECHR 2002-IV.

[3] Colombani and Others v. France , no. 51279/99, ECHR 2002-V.