DISSENTING OPINION OF JUDGE DAVID THÓR BJÖRGVINSSON

1. I disagree with the majority in finding a violation of Article 8 of the Convention .

2. The majority has come to the conclusion, contrary to the domestic courts, that the statements made in the article asserting the applicant ' s affiliation with the KGB were without any factual basis and that by associating him with a “repressive organisation” were damaging to his reputation. As he had not been successful with his claim before the domestic courts the majority held that the Moldovan authorities failed in their positive obligations to afford the applicant the protection of his honour and reputation to which, under Article 8, he is entitled.

3. In the domestic court ' s balancing of Article 8 and Article 10 the balance rightly tilted in favour of Article 10. There are, in my opinion, no sufficient grounds for overturning the domestic court ' s assessment.

4. The app licant, Mr Ana t ol Petrenco, is C hairman of the Association of Histor ians of the Republic of Moldova , a u niversity professor and an author of a school curriculum “Universal History ”. He has , furthermore, as submitted in paragraph 87 of the Government ' s written observations of 10 January 2008 , before and after the publication of the con test ed article, been actively involved in politics. He was a member of the Communist Party of the former Soviet Union and a member of the Democratic Front on behalf of which he ran for Parliament in 1998. He was also a member of the National Liberal Party and a candidate for that party in the general elections in 2001. From 2000 he was the leader of the National Movement. Since 2006 he has been the President of the European Action (Acţiunea Europeană ) , a political party in Moldova , albeit a minor one .

5 . Thus the applicant is not onl y a well -known scholar in Moldova . He is also an active contributor to the general political debate. He is a public figure who , as such, has therefore voluntaril y exposed himself to close scrutiny of his actions, past and present, by journalists, politicians and other contributors to public debate. The Court has frequently stated that the extent of acceptable criticism and commentary is greater in respect of politicians or other public figures than in respect of private individuals ( see Petrina v. Romania , no. 78060/01, § 19 , 14 October 2008 , § 40 ). The applicant, as a participant in a public debate, should therefore be prepared for harsh, exaggerated and even unfair commentary on his past and present actions, not only in the form of so-called value judgments, but also as concerns presentation of facts. Furthermore, as an active participant in a public debate the applicant has had every opportunity to answer any insinuations which allegedly were directed at him. This is how a media-driven public debate in a democratic society works and should work.

6 . In assessing whether the publication of the article overstepped the limits of acceptable criticism in a democratic society where the freedom of expression ranks highly , the following points are relevant:

i. The article was published in the context of a debate on issues related to Moldovan history and politics. It was therefore of general interest , though admittedly it took the form of a debate between the applicant and S.N. that became somewhat personal. The present case is therefore manifestly distinguishable from a case such as Biriuk v Lithuania ( no. 23373/03, 25 November 2008 ) which concerned a blatant intrusion into the applicant ' s private life. In many cases in which the Court has had to balance the protection of private life against freedom of expression, it has always stressed the importance of the contribution made by articles in the press to a debate of ge neral interest (see, among others , Tammer v. Estonia , no. 41205/98, § 59 , ECHR 2001 ‑ I ). §§ 66 and 68; Von Hannover v. Germany , no. 59320/00, § 60 , ECHR 2004 ‑ VI ) ; and Standard Verlags GmbH v. Austria (no. 2) , no. 21277/05 § 46, 4 June 2009).

ii . As to the content of the con test ed article (see § 6 of the judgment), I agree with the majority that the only real issue concerns the statements about the applicant ' s alleged association with the KGB. However I disagree that they should be viewed as direct allegations of collaboration with the KGB. The KGB is mentioned twice in the article. However, nowhere is it directly alleged that the applicant collaborated with the KGB. The first statement simply implies the confidence that the AUCP (All union Communist party of Bolsheviks) and the KGB must have had in him and the second that they must have placed their faith in him. These statements do not by their wording assert that the applicant was, as a matter of fact, a KGB collaborator. At best they contain an innuendo that the applicant was well regarded by the KGB.

iii . It is also relevant that pending the rehearing of the case on 1 April 2004 the newspaper Moldova Suverană published an ar ticle which can be seen as a retraction of the earlier article and an attempt to distance the newspaper from its content. It stated i.a. ; “ ... we regret the disparaging remarks and immoderate language ...”. The majority has interpreted these words narrowly (see §§ 62 and 67) as n ot referring to the con test ed statements, or at least not clearly enough. I disagree. Although the article do e s not retract specifically the remarks concerning the applicant ' s alleged associations with the KGB, the words “disparaging remarks” are most naturally understood as including all disparaging remarks in the article, including those referring to the KGB.

iv. The applicant does not deny that he was a member of the Communist Party of the former Soviet Union . Admittedly, membership of the Communist P arty is one thing; association with the KGB is quite another. However, what is not in dispute is the fact of his association with a former repressive regime albeit in one of its less oppressive guises. In such circumstances and particularly in the context of a political debate on matters of public interest, I do not accept that the mere suggestion that the applicant was well regarded by the KGB so increases the level of stigmatisation that it warrants sacrificing the fundamental right to press freedom for the sake of protecting his rights under Article 8.

v . The relevance and seriousness of the statements for the applicant ' s reputation must also be assessed in light of the whole social and political context in which they were made. In many of the former communist countries, including Moldova , insinuations similar to those in the present case are not uncommon in everyday political and social debate. True or false, they should be viewed as an unavoidable part of the public debate whe n a new political system is being established on the ruins of an oppressive regime, with which many of the present players in the public debate were associated in one way or another.

7. With the above considerations in mind, the publication of a newspaper article querying the KGB ' s good opinion of the applicant does not overstep the limits of what is acceptable in the context of a general political and historical debate in Moldova . This was no more than the applicant could be expected to tolerate and respond to within the framework of a public debate. In these circumstances, refuting the impugned publication through the instrument of public debate is the most appropriate form of reply in a democratic society.

8. Accordingly, in my view, there has been no violation of Article 8 of the Convention.

[1] . AUCP (b) – The acronym of the “All-Union Communist Party (of Bolsheviks)”, the official name of the Communist Party of the Soviet Union between 1925 and 1952, under Stalin.

[2] . KGB – The acronym in Russian of the former Soviet Union Intelligence Service.

[3] . “ stuk-stuk-stuk ” – Russian language onomatopoeia used to suggest that a person is an informant, usually of the former political police.

[4] . CPSU – The acronym of the “Communist Party of the Soviet Union ”, the official name of the Soviet Communist Party after 1952.

[5] 1. Resolution 1096 (1996) “on Measures to dismantle the Heritage of former Communist Totalitarian Systems”.

[6] 2. Ibid, para 12

[7] 3. Ibid.

[8] 4 . See Report on measures to dismantle the heritage of former communist totalitarian systems, Doc. 7568, 3 June 1996, para 3.