CONCURRING OPINION OF JUDGE

DAVID THÓR BJÖRGVINSSON

I have voted in favour of finding a violation of Article 10 of the Convention, but would like to add a few remarks.

On 13 December 2006 the Ebląg District Court found the applicant, Mr Kaperzyński, guilty of an offence punishable by section 46 § 1 of the Press Act in conjunction with its section 31 § 1. The court sentenced him to four months’ restriction of liberty in the form of twenty hours’ community service per month and suspended the sentence for a period of two years. It further deprived him of the right to exercise the profession of journalist for a period of two years and ordered that its judgment be made public by displaying it at the Iława Municipal Office. The judgment was upheld by the Ebląg Regional Court on 27 March 2007. This sentence, not least the suspension of the applicant’s right to exercise his profession as a journalist, has not been justified. It was clearly grossly disproportionate in the circumstances of the present case and as such is a sufficient ground for finding a violation of Article 10 of the Convention.

While I agree with the finding of a violation, I have some reservations as regards the relevance of some of the points raised in the reasoning of the majority, in particular in paragraphs 61 and 66. In this regard it should be noted that the domestic court proceedings were born out of a private bill of indictment brought by the municipality of Iława. It is therefore reasonable to consider that the letter dated 17 October 2005 was sent to the applicant’s newspaper on behalf of the municipality of Iława, and not by the mayor himself in his personal capacity. This understanding is not altered by the fact that the mayor obviously was, given the polemical content of the letter, somewhat irritated by the newspaper article and, rightly or wrongly, took personally the criticism made in it. I consider that the right to reply and the duty to publish the reply under Article 10 of the Convention must first and foremost be assessed in light of the fact that the municipality is a public authority, not in the light of the personal right of the mayor to defend his allegedly damaged reputation. In my view, this is a very important consideration in the context of the present case when viewing the compatibility of the right to reply and the duty to publish such a reply against the background of the right to freedom of expression under Article 10 of the Convention.

It is for this reason that I have reservations as to the relevance of the principles set out in paragraph 66 of the judgment, where the right to reply is accepted as a normal element of the legal framework governing the freedom of expression and as such falls within the scope of Article 10 of the Convention. By using this approach the majority implies that the municipality’s right to reply and the applicant’s duty to publish it has some basis in Article 10 of the Convention. I disagree. Clearly a public authority, like the municipality of Iława, cannot invoke rights under Article 10 of the Convention to impose on private parties a duty to publish a reply to criticism of its activities. It follows that recourse to national law for this purpose is contrary to Article 10 of the Convention and is another ground for finding a violation in the present case.