DISSENTING OPINION OF JUDGE PAVLOVSCHI

Unfortunately, and to my great regret, I am unable to subscribe to certain of the conclusions reached by the majority in the present case.

I have no difficulty whatsoever with regard to the merits of the case. I share the majority ' s view that there has been a violation of both Article 6 § 1 and Article 10 of the Convention.

My difficulties begin when analysing the application of Article 41 of the Convention.

In particular, I refer to the award made to the applicant in respect of non-pecuniary damage, namely EUR 2,000. I consider this amount far too small and inadequate to the circumstances of the case. It does not correspond to the degree of suffering experienced by the applicant.

In my opinion, it is impossible to justify this amount of compensation either from the point of view of formal logic or from the perspective of the Court ' s case-law. These render this level of compensation unfair and unjust.

I am firmly convinced that, when examining “freedom of expression”-type violations, it is vitally necessary - if not imperative - to make a clear distinction between different forms of interference by a state, which may in turn result in different forms of suffering.

In practical terms, the severity of suffering entitles applicants to differing (higher or lower) amounts of compensation. To some extent, and in so far as possible, such compensation should be proportionate to the various degrees of suffering.

In my opinion, it is clear that the suffering of persons who, as a result of exercising their right to freedom of expression, were subject to criminal prosecution, conviction and punishment is higher than that of persons who, in the same conditions, were not subject to criminal sanctions. It is quite clear that the suffering of persons detained by the authorities - be it for a couple of hours, a couple of days or a couple of months - is higher than that of a person who was not so detained.

Equally, the suffering of a person who, as a result of exercising his or her rights to freedom of expression, is obliged by the judicial authorities merely to compensate other persons for the non-pecuniary damage caused by his or her professional activity is much lower than that of a person who is prosecuted and convicted of a criminal offence.

In my opinion, the suffering of persons who are criminally convicted for their opinions is even greater in situations where such convictions are based on judicial decisions arising from a violation of the right to a fair trial. It has for years been this Court ' s general practice that the award made to a person who suffered as a result of two or more different violations should be higher than the award made to a person who suffered from only one violation.

For those reasons, I am unable to agree when, in a “freedom of expression” case which did not arise from the applicant ' s prosecution, conviction of a criminal offence and punishment, or from his or her detention, the compensation awarded was EUR 4,000, yet, in the present case, where the applicant was prosecuted, convicted of a criminal offence and punished, he was awarded only EUR 2,000. This difference is especially striking if one takes into account the fact that, in the first case, the Chamber found only a violation of Article 10 while, in the present case, violations have been found of both Article 10 and Article 6 § 1.

There is no logical explanation as to why, in a case where the Chamber finds a violation of Article 10 alone, the compensation awarded is EUR 4,000, but, where the same Chamber finds a violation of both Article 10 and Article 6 § 1, the award is merely EUR 2,000.

Nor is it possible to explain how a person who was not prosecuted, convicted or punished on a criminal charge is awarded EUR 4,000, while a person who was prosecuted, convicted and punished on a criminal charge is awarded only EUR 2,000. I find this approach absolutely unjust, i.e. contrary to the provisions of Article 41 of the Convention, which enshrined the principle of “just satisfaction”.

In my opinion, the award in respect of the applicant ' s non-pecuniary damage in this particular case should be no less than EUR 4,000, a sum which should be taken as a starting point. Taking into consideration the criminal character of the sanctions applied to the applicant, I would add a further EUR 2,000. Last but not least, taking into consideration the fact that a violation of Article 6 § 1 of the Convention was found in the present case, I would add EUR 3,000 to the previous two figures in respect of the violation of Article 6 § 1.

All these calculations lead me to the conclusion that, in order to be just, the award in the present case should have been EUR 9,000 or thereabouts, but certainly not EUR 2,000. This is where I disagree with the majority.