CONCURRING OPINION OF JUDGE POALELUNGI

I share the view of the other members of the Chamber that there has been a violation of Article 8 of the Convention in the present case; however, I do not find the outcome of the case fully satisfactory, for the reasons set out below.

The applicants had two distinct complaints before the domestic authorities:

(a) that they had been secretly filmed by the police in a sauna during moments of a private nature and later blackmailed with the video; and

(b) that the national television service had broadcast the video of the sauna scene.

The prosecutors and the domestic courts dismissed the first complaint, virtually without carrying out any form of investigation, but upheld the second one and awarded compensation to the applicants in respect of that complaint only.

Before the Court the applicants submitted two distinct complaints:

(a) that the authorities had failed to discharge their positive (procedural) obligation under Article 8 by failing to properly investigate the allegations that they had been secretly filmed by the police; and

(b) that the compensation awarded by the Supreme Court of Justice for the broadcasting of the sauna scene on national television was insufficient.

I regret that the Chamber completely disregarded the first complaint, holding that the applicants had been compensated by the domestic courts in respect of all of their grievances and that the only issue worth examining was the amount of compensation.

The Chamber should also have addressed the applicants ’ first complaint and given a clear answer as to whether the Government had a positive obligation to investigate the applicants ’ allegations about the secret filming and, if so, whether the Government discharged that obligation.

I do understand that, unlike under Articles 2 and 3 of the Convention, the positive obligations under Article 8 should be limited and that the State should not be required under that provision to investigate petty complaints concerning breaches of privacy. This case, however, is more serious than that since the applicants were journalists working for a newspaper which had expressed opinions critical of the Government. Moreover, there is strong prima facie evidence that the applicants ’ secret filming in the sauna was organised by agents of the State. The video was later broadcast on national television in a programme presented by the president of the national television service and remarks about the opposition being behind the newspaper employing the applicants were made. The facts clearly suggest that the authorities were directly involved in this case and that they not only failed to investigate the applicants ’ allegations but, on the contrary, created obstacles and hindered the investigation in every possible way.

In such a context, I would not treat the applicants ’ complaint concerning the State ’ s failure to investigate the circumstances of their secret filming as a petty case of voyeurism but rather as a serious assault on the freedom of speech.

It is a pity that the applicants did not complain also under Article 10 of the Convention. However, the principles applicable in that Article could have been referred to in the examination of their complaint under Article 8.

It is true that some might have reservations in respect of the applicants ’ professional conduct, but this should not be an obstacle to their enjoyment of their rights guaranteed by Article 8 of the Convention.