JOINT CONCURRING OPINION OF JUDGE S GARLICKI, Å IKUTA AND POALELUNGI

We fully agree with the finding that there has been a violation of Article 8 of the Convention and that, in the circumstances of the case, protection of reputation had to take priority over freedom of expression. What prompts us to express a concurring opinion is that the Petrenco case can be regarded as an illustration of two problems of a more general nature.

1 . This is a case of so-called “wild lustration”: a situation in which allegations concerning former collaboration with the communist political police are raised, in the heat of a political debate, by the press and/or by a private person of some political standing. Whilst in the process of “regular lustration” the facts of such collaboration are assessed and established by a public authority that has access to the necessary documents and is able to provide procedural guarantees for all those involved (see, for the requisite standards, the judgment in Ādamsons v. Latvia , no. 3669/03, § 116 , 24 June 2008 ), the “wild lustration” takes place outside any organised procedural framework. With its potential for discrediting the person concerned, it usually targets politicians or other public figures.

To avoid such cases of lustration resulting from personal or political revenge , the Council of Europe Parliamentary Assembly adopted the Council of Europe Guidelines on Lustration Laws [5] . According to the guidelines , lustration “can be compatible with a democratic state under the rule of law, if several criteria are met”. Among these criteria are:

( a ) guilt must be proven in each individual case [6] ;

( b ) the right of defence, the presumption of innocence and the right to appeal to a court must be guaranteed [7] ;

Further, lustration may not be used for punishment, retribution or revenge [8] . These principles apply a fortiori when no formal lustration procedure has been engaged against an applicant .

Political debate has its own rules and sometimes those rules can be very harsh for those who decide to actively participate in it. But neither the press nor political opponents can be granted a licence to kill. That is why the very fact that “wild lustration” takes place within a political context is not sufficient to absolve them from the obligation to protect the reputation and good name of others.

Since allegations concerning collaboration with the communist political police must, by their nature, be regarded as statements of fact, the Court has rightly applied the “sufficient factual basis” test. Those who publicly raise such allegations must be able to demonstrate the existence of that basis. This is less than a duty to deliver absolute proof of collaboration. But what may – and should – be required is, on the one hand, to show facts and information that, taken together, could indicate such collaboration, and, on the other, to display sufficient diligence in addressing the problem and comparing different sources of information. Mutatis mutandis , this is the approach to be taken in respect of allegations of corruption (see – in a context of political debate – Rumyana Ivanova v. Bulgaria , no. 36207/03, 14 February 2008 ; Flux v. Moldova (no. 6) , no. 22824/04, 29 July 2008 ; and Mahmudov and Agazade v. Azerbaijan , no. 35877/04, 18 December 2008 ).

2 . The pre-democratic life of public figures today may be of legitimate interest to public opinion and may constitute a matter of political debate. The press must play a prominent role in such debate.

But the only way to put that debate into a civilised framework is to open the state archives in which information about past events can be researched. For as long as access to the archives remains reserved only for the privileged few it will be very difficult to erase “wild lustration” from the political debate.

In its judgment in Turek v. Slovakia (no. 57986/00, ECHR-II), the Court clearly stated (with reference to lustration proceedings) that, unless the contrary is shown on the facts of a specific case, “ it cannot be assumed that there remains a continuing and actual public interest in imposing limitations on access to materials classified as confidential under former regimes. This is because lustration proceedings are, by their very nature, oriented towards the establishment of facts dating back to the communist era and are not directly linked to the current functions and operations of the security services. Lustration proceedings inevitably depend on the examination of documents relating to the operations of the former communist security agencies. If the party to whom the classified materials relate is denied access to all or most of the materials in question, his or her possibilities of contradicting the security agency ' s version of the facts will be severely curtailed (§ 115) ."

We would, therefore, not exclude the possibility that there may be some positive obligations of the State in that field. Full disclosure of archive material may not always be possible (particularly when, as in the case of Moldova , a significant portion of the material is controlled by another country). However – as the Court has already indicated in the Rotaru case – an arbitrary bar on any reasonable access may constitute a violation of both Article 8 and Article 10 of the Convention.