CONCURRING OPINION OF JUDGE SCHEMBRI ORLAND

1 . I fully agree with the conclusions reached in this case but respectfully disagree with the Court ’ s decision to abstain from addressing the interference represented by the criminal proceedings for libel.

2 . In this case, the applicant and the publishing company were subjected to three sets of defamation proceedings, two civil and one criminal. The applicant was a journalist and himself a member of the regional legislature. The content of the comments at which Mr D (the alleged victim in the ordinary domestic proceedings) took umbrage concerned corruption at the highest level of regional government. It is undisputed that the domestic courts made sizeable awards against both applicants in respect of non ‑ pecuniary damage, resulting in the ultimate folding of the publishing company and in severe financial loss.

3 . Yet this was unsatisfactory for Mr D, and it appears that the investigative authority was repeatedly requested to file a criminal action against the applicant. Ultimately, superior orders prevailed despite the reluctance shown by the investigators, and Mr D was successful in having criminal proceedings brought against the applicant. A reading of the list of the penalties applicable in the event of a finding of guilt is in itself rather chilling – a fine of up to RUB 125,000 or in the amount of a convict ’ s salary for the period of up to a year; 180 to 240 hours of forced labour; twelve to twenty-four months of community service; or three to six months ’ detention.

4 . Mr D. at the time still enjoyed the powers of his office, and the pursuit of criminal proceedings against the applicant, in parallel with civil proceedings, was a disproportionate unleashing of State power which could only have had one aim – to silence the applicant through intimidation. The civil courts attached preponderant weight to Mr D ’ s social status, so it is not surprising that the court of first instance failed to consider the public ‑ interest aspect of the statements and to balance the different interests in play. Even prior to the finding of guilt, the applicant was ordered not to leave his residence, a measure which further restricted his freedom.

5 . The applicant was eventually found guilty of criminal libel by the first-instance court, although no actual punishment was imposed. These charges were then dropped and the criminal proceedings were terminated for lack of the constituent elements of the crime.

6 . In paragraph 71 of its judgment the Court noted the disproportionately high price the applicant had had to pay (in the civil proceedings) for expressing his opinion and the fact that, in addition, he had been subjected to criminal prosecution for libel in respect of the statement which had been the subject matter of the civil proceedings. The Court then found as follows: “Given that both the civil defamation proceedings that the Court has assessed above (see paragraphs 64-70 above) and the criminal proceedings for libel stemmed from the same statement and ran for some time in parallel, the Court does not consider it necessary to address the remaining instance of interference (in the form of criminal proceedings for libel).”

7 . The Court should, respectfully, have taken the opportunity to examine the severity of the interference represented by the institution and conclusion of the criminal proceedings for defamation and reinforced its case-law on criminal defamation. In the case at hand, not only were civil remedies available and under way, but the criminal penalties for which the applicant was liable comprised grave sanctions such as forced labour and imprisonment. These sanctions clearly exceeded the limits of what should be deemed “necessary in a democratic society” in a case where the applicant exercised his right of political and journalistic speech in relation to the actions of a public figure, and where the public-interest content was undisputed. Nothing indicates that the content of the alleged defamatory remarks was exceptional, such as to warrant the institution of criminal proceedings against the applicant.

8 . Although the applicant was ultimately relieved of punishment, this does not alter the fact that the criminal proceedings hung over his head like the proverbial sword of Damocles, concurrently with his being ordered to pay significant sums in civil proceedings, and that he was ultimately convicted of a criminal offence at first instance.

9 . There can be no doubt that an allegation of corruption against a public official is a matter of public interest deserving of strong protection. Indeed, the Court has consistently held that the limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual (see Lingens v. Austria , 8 July 1986, § 42, Series A no. 103). Furthermore, the press and the media have a pre-eminent role in a State governed by the rule of law as they afford the public one of the best means of discovering and forming an opinion on the ideas and attitudes of their political leaders (see Castells v. Spain, 23 April 1992, § 43, Series A no. 236).

10 . It is true that the Court, when examining whether the interference is “necessary in a democratic society”, has not gone so far as to hold that the criminalisation of defamation is in itself a disproportionate interference (see, for example, Prager and Oberschlick v. Austria , 26 April 1995 , Series A no. 313 , a case which involved a conviction for defamation of a judge). However, the Court has held that even when the criminal sanction is the lightest possible, such as a conviction accompanied by a discharge in respect of the criminal sentence and an award of only a “symbolic euro” for damages, this may nonetheless have a dissuasive effect on the exercise of freedom of expression, a factor which must be taken into account in assessing the proportionality of the interference (see Jersild v. Denmark , 23 September 1994, § 35, Series A no. 298 ; Brasilier v. France , no. 71343/01, § 43, 11 April 2006 ; and Morice v. France [GC], no. 29369/10 , § 176, ECHR 2015 ). In Reichman v. France ( no. 50147/11, § 73, 12 July 2016) the Court, referring to its judgment in Perinçek v. Switzerland [GC] [3] , held that the very pronouncement of a criminal conviction was “one of the most serious forms of interference with the right to freedom of expression, having regard to the existence of other means of intervention and rebuttal, particularly through civil remedies”. In Cumpănă and Mazăre v. Romania ([GC], no. 33348/96 , § 115, ECHR 2004 ‑ XI) , the Court held that the imposition of a prison sentence for a press offence “will be compatible with journalists ’ freedom of expression ... only in exceptional circumstances, notably ... in the case of hate speech or incitement to violence.”

11 . Given the essential role of press freedom in a democratic society, it is regrettable that the Court decided to overlook this opportunity to further reinforce the restrictive application of criminal sanctions for defamation and libel. This is all the more imperative when one considers that criminal sanctions, when compared with civil remedies, carry a greater potential to generate a chilling effect on the media and on freedom of expression generally.

[1] Hereinafter the amounts in Russian roubles are converted into euros at the exchange rate applicable on the date of the relevant decision or event .

[2] The amounts in roubles in this section are converted into euros using the exchange rate established on the date of submission of the applicants’ claim under Article 41 of the Convention.

[3] 3 [GC], no. 27510/08 , § 273, ECHR 2015 (extracts).