DISSENTING OPINION OF JUDGE BRATZA

1 . I am unable to agree with the majority of the Chamber that the applicants ' Convention rights were not violated in the present case. In my view, the prosecution and conviction of the applicants and the penalties imposed and damages awarded against them for publishing the article on 11 May 2001 amounted to a disproportionate interference with their freedom of expression and were in clear violation of their rights under Article 10.

2 . In reaching this conclusion, I place reliance on a number of specific features of the case to which, in my view, the majority have given no, or no sufficient, weight.

3 . In the first place, the events referred to in the article were clearly matters of public interest and, as is acknowledged in the judgment, were described in a manner which was short, concise and objective and in a tone which was moderate and not sensational or salacious. The article did not identify the student concerned, recording only that she was an adult; it included no photographs nor did it mention the names of the alleged assailant or of any of those who allegedly participated in the incident.

Emphasis is placed by the majority of the Chamber on the fact that, even if unnamed, the players involved could be identified since they belonged to the local sports club which was mentioned by name and since they would be known in their home town, by baseball fans and by a larger public, thereby suffering damage to their reputation. While the accusation made in the article was doubtless very serious, I attach importance to the fact that it did not suggest that all or any particular members of the team were involved in the alleged rape; one was, indeed, expressly exonerated, the article recording that the player had intervened to stop the assault. In this respect the case bears a strong resemblance to that of Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 67, ECHR 1999-III, in which it was alleged that members of the 17-man crew of a seal hunting vessel, the M / S Harmon i, had committed reprehensible and unlawful acts of cruelty on the animals. The impugned article named 10 crew members whom the seal hunting inspector had exonerated. While the remaining crew members of the vessel were easily identifiable, the Court observed that the potential adverse effect of the impugned statement on the reputation and rights of each individual was “significantly attenuated by several factors. In particular the fact that the criticism was not an attack against all the crew members or any specific crew member (see the Thorgeir Thorgeirson v. Iceland judgment of 25 June 1992, Series A no. 239, p. 28, § 66)”. In the same way, in the present case the impact of the article was substantially attenuated by the fact that no accusation was levelled against any specific team member or against all the members of the team.

4 . Secondly, although the article was published some months after the alleged assault, it accurately recorded a contemporary statement made by the student herself one day after the alleged rape. It has never been disputed that the statement was made; nor has it been disputed that the statement was supplied to the folk high school of the town or that the school reported the alleged incident at the time to officials of the town, to the management of the baseball team in question and to its main sponsor. The applicants claimed in the domestic proceedings that the student ' s statement had also been corroborated by several witnesses who had been interviewed by the magazine but who wished to remain anonymous and whose identity could not be disclosed.

5 . The Appeal Court found that, despite this evidence, the applicants had failed to show that they had sufficient reasons to believe the accusations to be true: they had not tried to contact the student herself, the players or their team and, by not revealing their sources, they had taken the risk of being convicted of defamation.

6 . In my view, this is to impose too heavy a burden of proof on defendant journalists in a criminal trial for defamation. It is, I consider, of central importance that the allegation of rape was not made for the first time in the magazine article published in May 2001. It was an allegation which had been formally made in a signed and witnessed statement and notified not merely to public officials but to the management of the team itself some 8 months before. What, to my mind, is more striking than any failure on the part of the applicants to seek the comments of the team on the allegation, is the apparent failure on the part of the public officials or management of the team to investigate the allegation at the material time with a view to establishing its truth or falsity and, in the event of its being found to be false, to issue a denial or to take action against the student herself for defamation. In these circumstances, to hold not only that the applicants, as defendants, were required to adduce further proof of the truth of the allegation but that they could only do so by disclosing their sources and identifying witnesses to whom they had guaranteed anonymity is to set the bar too high.

7 . For substantially the same reasons, I find no force in the Government ' s argument that, since the comments of the team had not been sought in advance of the publication of the article, the players had not been given an effective opportunity to defend themselves. The team and its members had been aware of the allegations and were in a position to answer them long before the article was published and, when invited by the magazine to reply to the allegations, did so merely by denying that any of the players were guilty of any crime.

8 . Thirdly, I note that when the case was referred to the police after publication of the article and became the subject of an investigation, the student ' s account that she had attended a party to celebrate the team ' s victory and had there been raped by a member of the team was not rejected as a fabrication. According to the press release issued by the police in April 2002, the investigation was suspended only because the victim of the alleged rape had not been able to identify the offender or offenders or “to clarify the event in such detail that the offence could be attributed to a particular person or persons”.

9 . Finally, in assessing the proportionality of the interference, I attach considerable weight to the fact that resort was had to criminal proceedings against the applicants and to the combination of the penalties imposed and the very substantial award of damages made in favour of the members of the team.

It is true that the Court has consistently held that, in view of the margin of appreciation left to Contracting States by Article 10, a criminal measure in response to defamation cannot, as such, be considered disproportionate to the aim pursued. However, it is also true that, in holding an interference with freedom of expression to have been disproportionate, the Court has on several occasions placed reliance on the fact that recourse could have been had to measures other than criminal sanctions, notably civil remedies (see, for example, Lehideux and Isorn i v. France , judgment of 23 September 1998, Reports 1998-VII, §§ 51 and 57; Raichinov v. Bulgaria no. 47579/99, § 50, 20 April 2006). There appears to have been no reason in the present case why members of the team could not have been left to pursue their civil remedies against the applicants had they seen fit to do so.

10 . While acknowledging that the applicants were made subject to criminal law sanctions and that the penalties imposed might be viewed as “quite severe”, the majority of the Chamber consider that they may be seen as proportionate having regard to the competing interests at stake. I cannot agree. The individual applicants were not only convicted of a criminal offence but were ordered to pay 60 day-fines amounting to EUR 3,540 and EUR 1,920, respectively. In addition, all three defendants to the domestic proceedings, together with the publishing company, were ordered to pay damages and costs and expenses jointly and severally in a total amount of EUR 89,000 plus interest to the members of the baseball team, out of which EUR 81,600 plus interest was attributable to the present applicants before the Court. Even if, contrary to my view, the prosecution and conviction of the applicants had been otherwise justified under Article 10, I consider that the very substantial sums imposed by way of fines and awarded in compensation, in a case where no individuals had been identified as having committed or participated in the alleged rape, were out of all proportion to any legitimate aim served.