DISSENTING OPINION OF JUDGE TULKENS

1. Unlike the majority, I believe that in the present case there has been a violation of Article 10 of the Convention interpreted, as the judgment suggests, in the light of Article 11.

2. The facts are not in dispute. The applicant’s offending remarks were made in her capacity as chairperson of the Tettrekész Police Trade Union and on the union’s website, which was under her editorial control. She complained, among other things, about unpaid remuneration due to police personnel, alleged nepotism and undue political influence, as well as dubious qualifications of senior police officers (see paragraph 8). The applicant was found guilty of instigating insubordination, for which she was fined and demoted.

3. The judgment rightly points out that Article 10 of the Convention applies to the police and personnel of the armed forces, as it does to everyone within the jurisdiction of the member States. Both the right to freedom of expression guaranteed by Article 10 § 1 and the limitations and restrictions provided for in paragraph 2 must therefore be applied in the same manner and with equal rigour. In that connection, in view of certain issues raised by this case, I am unable to find that the measures taken against the applicant were proportionate to the aim pursued.

4. The majority decided at the outset that the applicant’s critical remarks had overstepped the mandate of a trade union leader, because some of them were “not at all related to the protection of labour-related interests of trade union members”. I wonder whether, for its part, the Court itself has not overstepped its mandate by casting this judgment on the role of a trade union leader and on the “legitimate” scope of trade-union activities. Moreover, it confines the role of a union to the protection of workers’ interests stricto sensu , without considering that such protection could extend more broadly to criticism about alleged failings in the institution itself. In finding, without any other explication or justification, that the offending remarks had been made “outside the legitimate scope of trade union-related activities”, the majority dismissed, artificially in my view, the trade-union dimension of this case to focus it purely on the right to freedom of expression.

5. A second factor also comes into play here. The majority noted that in respect of some allegations by the applicant, “the domestic courts, rather surprisingly , refused to accept evidence” (see paragraph 32, second sub-paragraph). They nevertheless criticised the applicant for not providing a clear factual basis for what amounted to value judgments and somewhat oddly concluded: “It is true that she was barred from submitting evidence in the domestic proceedings – a matter of serious concern – however, in her attacks concerning the activities of police leadership, she failed to relate her offensive value judgments to facts” (see paragraph 32, third sub-paragraph in fine ).

6. My last point concerns the harshness of the penalty. Whilst the fine may be regarded as lenient, the same cannot be said of the demotion, which in my view is a harsh sanction and, in the context of the present case, a disproportionate one.