DISSENTING OPINION OF JUDGE Kalaydjieva

I find myself unable to follow the logic which brought the majority to the conclusion that “the [national] courts have sufficiently taken account of the applicant ' s right to freedom of expression in the course of the criminal proceedings against her”. In the absence of any reasoning in the domestic decision-making process, these conclusions appear to deviate from the principle of subsidiarity and to substitute the Court ' s own considerations for those of the national courts in determining the compatibility of a measure affecti ng the rights under Article 10.

The applicant was sentenced for signing a declaration in 2001 in support of lifting the ban on activities of PKK imposed by virtue of an Order of the Minister of Interior in 1994. On 27 March 2003 the Federal Court of Justice issued a pilot judgment on the criminal responsibility incurred by this act, finding that it could be ruled out that the signatories limited themselves to demand ing freedom and self-determinatio n - a statement which would have been covered by the right to freedom of expression and thus be exempt from criminal liability . In their view the content of the “self-declarations” went beyond the mere exercise of this freedom and made it unequivocally clear that signatories were “ ready to flout the ban and to bear the responsibilities thereof ”.

In so far as the majority was convinced that in view of this interpretation the applicant was not convicted for an act committed in exercising her freedom of expression within the ambit of Article 10 of the Convention, a conclusion that this provision was not applicable to the circumstances of the case might have been more appropriate to meet their views. Having however come to the conclusion that the imposed sentence interfered with the applicant ' s freedom of expression, with which I agree, this Court is required to determine “whether the reasons adduced by the national authorities to justify the interference were ' relevant and sufficient ' ... [T]he Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 ” (see among many others Jersild v. Denmark , 23 Sep tember 1994, § 31, Series A no. 298, CumpÇŽnÇŽ and MazÇŽre v. Romania [GC], no. 33348/96, §§ 88-91, ECHR 2004 ‑ XI ).

In the present case the competent Regional Court found that the declaration which the applicant signed, “was not covered by her right to freedom of expression and at the same time considered the importance of this right as a mitigating factor in determining the imposed fine” (§§ 16-17). The Federal Court of Justice found on appeal that the court below had “ sufficiently weighed the importance of the applicant ' s right to freedom of expression ”. Like in several similar cases (see page 4 of the Observations of the Applicant), the Federal Constitutional Court was of the view that the applicant ' s statements fell within the ambit of the applicant ' s right to freedom of expression (§ 22). It considered that in the context of the criminal courts ' examination, “ freedom of expression took second place without a weighing being required in the individual case ” (§ 24). In my view these circumstances suffice to demonstrate that the national courts were not required to and accordingly failed to determine whether the interference with the freedom of expression reflected a pressing social need justifying the interference in the individual case of the applica nt.

Looking also at the fact that the applicant ' s conviction was based on an interpretation of the law which classified her act as punishable two years after it was committed, I am far from convinced that the interference with the applicant ' s rights under Article 10 was “prescribed by law”, or that “the (national) courts have sufficiently taken account of the applicant ' s right to freedom of expression in the course of the criminal proceedings against her” .