PARTLY DISSENTING OPINION OF JUDGES ROZAKIS, TULKENS AND SPIELMANN

While we agreed with the other members of the Court that in the circumstances of the case there has been a violation of Article 10 of the Convention, we are unable to follow them when they considered that the complaint of the applicant company under Article 6 of the Convention was absorbed by the complaint under Article 10, and, therefore, there was no need to examine it separately.

We consider that although the applicant company raised the issue of the refusal of the domestic courts to hear a witness, both as an aspect of its complaint under Article 10, and, separately, as a complaint under Article 6, its reference to the refusal of the courts to hear the witness with regard to its complaint concerning freedom of expression merely supported the main argument of the applicant that the domestic courts did not proceed to a proper assessment of the interests involved in the case, namely the interest of the applicant to a free expression of its opinions vis-à-vis the interest of its opponent, to whom the incriminated statement referred.

The Chamber dealt with the issue of the refusal of the witness to give evidence on the ground that he risked incriminating himself while considering the Article 10 issue (see paragraph 52 of the judgment). In our view the Chamber should have dealt with that issue separately, under Article 6 of the Convention, which was also raised by the applicant, since both the merits of the complaint and the answer given by the Court (paragraph 52) pertained more to a discussion under Article 6, rather than under Article 10.

For these reasons, we believe that the complaint under Article 6 had to be examined separately, as a distinct procedural issue of the case.