JOINT DISSENTING OPINION OF JUDGES COSTA AND THOMASSEN

( Translation )

We regret that we must dissent from our colleagues ’ conclu sion that there ha s been no violation of Article 10 of the Convention in respect of the applicants. The reasons for our divergence are explained below.

The facts of the case, as set out in the judgment, may be summarised as follows. Two journalists published an article in a newspaper, of which one of them was the editor, levelling accusations of “fraud” against the former deputy mayor of the city of Constanţa and a woman who had since become a judge but who at the time – and this is important – had been working as a legal expert for the city council. The authors of the article alleged that these two people had, on the city council ’ s behalf , signed a contract with a company for the service of impounding illegally parked vehicles; the contract had been signed without any legal basis and had disregarded a decision by the city council. Th ose dealings had been discovered by the city ’ s Audit Court , and this had apparently caused the city council to find pretexts for terminat ing the contract. Furthermore, according to the article, the woman (R.M.) had possibly received bribes but no action had been taken against her because of the small amounts involved.

The article, published in April 1994, was accompanied by documents intended to prove its accuracy and by a cartoon in which the two protagonists were depicted arm in arm, carrying a bag marked with the contracting company ’ s name and full of banknotes. The dialogue between them hinted at their alleged connivance and corruption.

R.M. instituted criminal proceedings against the two journalists, who were convicted of insult and defamation, sentenced to seven months ’ imprisonment and prohibited from working as journalists for one year. They were also ordered to pay the judge a substantial amount in damages, the award being upheld on appeal. It is interesting to note that the Procurator-General, in an unusual move, applied to the Supreme Court to have those judgments quashed on the ground that, among other things, he did not consider the offence of insult to have been made out; his application was , however, dismissed. The Procurator-General also granted the convicted journalists a stay of execution, with the result that they did not go to prison. Lastly, a presidential pardon was granted in respect of the sentence.

We can accept, like the majority, that the applicants overstepped the limits of the rights afforded to journalists in that they made the se accusations without proving that they were true.

As is often the case, the real issue is whether the civil and criminal penalties were “necessary in a democratic society” and hence proportionate to the legitimate aims pursued. Our colleagues in the majority consider that th e aims pursued were the protection of the rights of others, which is beyond doubt, and the protection of the authority of the judiciary, which is much more questionable . Admittedly, since the conclusion of the contract in issue, the city council ’ s legal expert had become a judge, but what matters to us is her profession at the time of the events criticised in the article.

As regards proportionality, we would like to make the following points . Firstly, the case concerns freedom of the press, which, according to our Court ’ s settled case-law, plays a “ public watchdog” role in a democra cy . Secondly , there was an indisputable public interest in ascertaining whether a contract to perform a local public service had been concluded lawfully and whether there had been any corruption involved. Such an interest is a factor carrying significant weight (see, for example, Thorgeir Thorgeirson v. Iceland , judgment of 25 June 1992, Series A no. 239, p. 28, § 68). Thirdly, there are clearly no grounds here for applying the well-known case-law ( Lingens, Oberschlick, Jerusalem , etc.) to the effect that politicians, such as the former deputy mayor, enjoy less protection than private individuals, because the criminal complaint against the applicants was lodged by R.M. alone; however, the article in issue also, and perhaps above all, criticised the conduct of this local politician (who had the same interest as R.M. in securing the journalists ’ conviction), and the context in which the whole episode took place was very much a political one, which further heightens the public interest in a debate concerning the circumstances in which the contract was signed. Fourthly, disparaging though it was, the cartoon – on which the domestic courts placed considerable importance – took the form of a caricature, which, etymologically speaking, is a loaded or distorted image. Satirical newspapers, which make extensive use of them, should not be discouraged. Lastly, and perhaps most importantly, “the nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of the interference” (see, for example, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 64, ECHR 1999- IV, or Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003- V). Here we do not agree with the majority, who attach weight to the pardon granted to the convicted journalists. A p ardon is a discretionary favour dependent on a prerogative order. It dispenses offenders from having to serve the sentence imposed on them , but does not erase their conviction. Sentencing the applicants to im prison ment was in itself excessive. Moreover, for more than a year the sentence was very real, had even been upheld by the Supreme Court and hung over the applicants ’ heads like the sword of Damocles. The other professional and pecuniary sanctions were likewise disproportionately heavy. Although one may conclude, as the majority did , that the prohibition on the applicants ’ working as journalists had no real consequences, that penalty, which has serious implications in terms of freedom of the press, was not remitted .

We are quite aware that, as in libel cases, there is a fine balance to be struck. Reputation and honour are also protected by the Convention, in Article 8 and Article 10 § 2. We too are sensitive to that. And in the instant case, the article and cartoon accused the two persons in question of dishonesty and suggested that they had had (extramarital) relations with each other, an insinuation that may have had repercussions on their family life . Overall, however, the balance was tipped slightly too far; in our opinion, there was no “pressing social need” justifying the lengths to which the Romanian courts went.