DISSENTING OPINION OF JUDGE BONELLO, JOINED BY JUDGES DAVÍD THÓR BJÖRGVINSSON AND Å IKUTA

1. The domestic courts ’ order to the applicant newspaper to pay damages and publish an apology constituted, in my view, a violation of freedom of expression enshrined in Article 10 of the Convention, and I voted without hesitation in favour of a finding to that effect.

2. The judg ment lays out the sal ient facts of the case in paragraphs 5 to 14. I would highlight the following as particularly material. The applicant newspaper, in the two impugned articles, levelled a number of accusations against the principal of the government-owned Spiru Haret High School . Some charges hang at the lower end of the scale of gravity. One , of bribery and corruption by the principal of the school, at the highest end.

3. Of the four less severe allegations, the first two appear to be uncontested: that the school suffered from overcrowding and lacked facilities. The third, that the principal had spent money on decorating his own office , also responds to fact. As is true of the circumstance that the principal had also employed public funds to improve some other parts of the school. There is absolutely nothing improper, in my view, in inferring that, where insufficient funds exist to cover all the needs of the school, spending public money on embellishing the principal ’ s office should not have been a priority. This surely constitutes a value judgment, acceptable, arguable or disagreeable, protected by Art icle 10.

4. The fourth allegation that the school magazine “only related to relationships and sex”, is not, in itself , defamatory at all; relationship skills and sex education are significant aims of any self-respecting educational system. Whether the implied criticism is satisfactory or open to controvers y, it still remains a value jud g ment, welcome or unwelcome, but protected.

5. The fifth accusation levelled by the newspaper at the principal – that he received bribes of 200 – 500 US dollars for enrolling children in the school, fits another bracket altogether and will be dealt with in accordance with the criteria long established by the Court ’ s case- law, primarily concerning freedom of democratic discussion on issues of serious public interest – and that should include, in my view, investigations into the pervasiveness of corruption or otherwise in the public educational system. Another question is whether, to attract the protection of Art icle 10, allegations published by newspapers in the course of open debate on topics of serious public concern must be proved “true” or whether it is sufficient for them to be grounded on adequate verifiable substantiation (the ‘ supporting factual basis ’ doctrine).

6. In the domestic proceedings, the newspaper produced three independent witnesses who all confirmed that money had to be paid to the

principal to secure the enrolment of children in his school. The domestic

court which examined these witnesses “has no reason not to believe the witnesses LV , CG and MN”. But that court then proceeded to dismiss their - believable – evidence all the same, with a reasoning that I find endearingly bizarre. Although the court established the credibility of the three witnesses it added that “in order to declare publicly that someone is accepting bribes, there is a need for a criminal court decision finding that person guilty of bribery. Since there is no such finding against [the principal], he cannot be accused of bribery”. Fine. Now we know that it is the august function of a ‘ watchdog ’ free press to g ive publicity to copies of judg ments of the criminal courts.

7. This also implies that, in the domestic court ’ s view, had a thousand credible witnesses sworn that the principal had received bribes, the court would all the same have found the newspaper guilty of libel – because the newspaper failed to throw at its readers a judg ment of the criminal court proclaiming the criminal guilt of the principal. What perturbs me is no t so much that there is no judg ment of a criminal court against the principal, but that, notwithstanding such grave accusations confirmed by witnesses certified as reliable, no criminal charges were laid against him. Since no one has ever bothered to charge the principal, the newspaper will have to wait a rather long time, more or less an eternity, for a judgment confirming or rebutting his culpability. Cutting-edge democracy requires that the one to be prosecuted is the one who makes credible charges, not the one against whom credible charges are made. And the public watchdog would do well not to bark at all, even if it has trustworthy evidence in its possession. Before this pronouncement, I had failed to appreciate that it is the business of the free press to respect eternal silence, waiting deferentially for a judgment of the criminal court that can never ever come.

8. The Strasbourg Court has distanced itself – rightly – from the rather quaint theorem of the domestic court, but, that notwithstanding, all the same found against the newspaper for making public charges of impropriety by government officials substantiated by witnesses, accepted as believable by the domestic courts.

9. Freedom of expression would be at a very low ebb were newspapers to be punished, with this Court ’ s approval, for contributing to a public debate on issues of serious civic concern with the release of trustworthy information – certified as trustworthy by the domestic courts. My view of the responsibilities of healthy, vigorous media – ‘ essential public watchdog ’ someone called them when not fully recovered from an overdose of optimism - goes so me way beyond publishing sanitis ed press releases issued by the authorities. I ’ ve now been told I am misguided.

10. Differently from the Court, I would not have belaboured unduly the argument of ‘ unprofessional behaviour ’ of the applicants, or that journalism has to be exercised responsibly in accordance with the ethics of the profession. Personally I do not find the behaviour of the applicant newspaper particularly negative, but, for the purposes of this opinion I am prepared to go along with the majority and grant that it was. Where does that lead to? I too would have good governance and good professional behaviour go hand in hand, but, if the latter should fail, I would still opt to privilege good governance over good media professionalism. The truth is that in this case the Court attached more value to professional behaviour than to the unveiling of corruption.

11. The facts show that the newspaper made enquiries about persistent rumours, found three witnesses whose integrity has not been put in doubt and who supported the allegations of corruption on oath, assuming the harsh responsibilities of perjury and the harsher ones of victimisation. The Court has penalis ed the newspaper not for publishing untruths (had that been the case, I would have rushed to join in with emphatic fervour) but for ‘ unprofessional behaviour ’ which was, in any case, quite uninfluential . I will explain later how this distorts completely the proportionality exercise.

12. The so-called ‘ unprofessional behaviour ’ punished by the Court would seem to consist in the fact that the newspaper traced its first – credible – witness before its publication of the articles, but the second and third – credible – witnesses after the publication. This censure seems to gi ve more importance to timing than to truth, more to the calendar than to the disclosure of corruption.

13. Another fault of the newspaper, according to the Court, was its omission to ask the principal for his opinion. And where, pray, does this lead? Assuming the newspaper, suffering a fit of daft journalistic finesse, had asked the principal before publication: is it true you take bribes? The reply would have been a yes or a no, and, with some effort I rather guess which of the two would have been the more likely. Had he (how surprising) denied corruption, was the newspaper forever muzzled or would it have published its – credible – findings all the same? The domestic court and the Strasbourg Court reply differently to this question. The domestic court answers that the newspaper could not publish anything at all since there is no res judicata conviction of the principal by a criminal court. A vigorous prop to democratic debate and freedom of expression.

14. Sadly, the Strasbourg Court goes one better: the newspaper falls foul for not having asked a question to which the answer was totally predictable and , in any event, uninfluential . Newspapers (and their readers) forfeit their freedom of expression if the journalist omits to ask a person considered, on credible evidence, associated with the commission of a crime, whether he is public-spirited enough to own up, or whether he prefers denying. Don ’ t ask

a stupid question, and you ’ re in trouble in Strasbourg . At this point the Court loses me.

15. The Court has also faulted the newspaper for failing to publish a fraught reply from the principal of the school. Surely this is confusing two totally separate issues. If the paper unreasonably failed to publish a reply, it should have been penali s ed – and rightly so - by the competent domestic overseer of communication ethics for defaulting in journalistic ethical duties. But a breach of an ethical duty, subsequent in time to the publication of alleged defamation, fails to render a newspaper retroactively guilty of defamation – the editor can be censured for failure to perform an ethical duty, but no way for libel. The Court did not see that these are wholly distinct issues which needed to be resolved separately. Instead it endorsed a finding of defamation when all it established was a deficit of professional correctness.

16. To find the domestic courts respectful of freedom of expression, the Court has also factored into the proportionality equation “the relatively modest award of damages”. On my part, I do not believe the respondent G overnment earn points by having gone far, but not quite as far as they could have.

17. I fear this judg ment has thrown the protection of freedom of expression as far back as it possibly could. Journalists have been told what to expect if they publish anything disturbing to the authorities, however pressing the social need and sufficient the factual basis are , if their professional behaviour leaves anything to be desired. Even if alarming facts are sufficiently borne out by evidence, in the balancing exercise to establish proportionality, disregard for professional norms is deemed by Strasbourg to be more serious than the suppression of democratic debate on public corruption. To put it differently, in the Court ’ s view the social need to fight poor journalism is more pressing than that of fighting rich corruption. The ‘ chilling effect ’ of sanctions against press freedom dreaded by the Court ’ s old case- la w has materialised through the C ourt ’ s new one.

18. Salman Rushdie, the victim of a fatwa , remarked: what is freedom of expression? Without freedom to offend it ceases to exist. Maybe freedom of expression should cease to exist when it offends, and that would not distress me unduly. The serious i nference of this judg ment is that freedom of expression also ceases to exist when it is punished for pushing forward for public debate allegations of public criminality made by witnesses certified as credible but in a manner considered unprofessional. When subservience to professional good practice becomes more overriding than the search for truth itself it is a sad day for freedom of expression.