JOINT CONCURRING OPINION OF JUDGES ELÓSEGUI AND SERGHIDES

1. In brief, the facts of the case were as follows: the applicant in the present case was a journalist and the editor-in-chief of a local newspaper. She was found liable in civil proceedings for defamation; those proceedings were instituted by the mayor of a town following the publication in that newspaper of an interview with a third person. The domestic authorities did not take into account the fact that the impugned statements had emanated from the third person, nor did they balance the interests of protecting the mayor ’ s reputation against the freedom of the press. The applicant complained, inter alia , that the judgments of the domestic courts had unduly restricted her right to freedom of expression under Article 10 of the Convention. The Court found that there had been a violation of Article 10 and awarded the applicant, in addition to her costs, the sum of 3,000 euros (EUR) in respect of non-pecuniary damage.

2. We are in agreement with the conclusion of the judgment, namely that there has been a violation of Article 10 of the Convention. The need for our concurring opinion will become apparent from what follows.

3. Both the principle of subsidiarity and the principle of proportionality are fundamental Convention principles (see, inter alia , point 11 of the Brighton Declaration of 2012, points 4, 10, 13, 28, 31 of the Copenhagen Declaration of 2012 and the Brussels Declaration of 2015 ( in passim )), which complement each other, and the Court must apply them both without subordinating the one to the other. This can be seen also from the following passage, from § 196 (iii) of Perinçek v. Switzerland, [GC], 27510/08, 15 October 2015, ECHR 2015:

“The Court ’ s task is not to take the place of the competent national authorities but to review the decisions that they made under Article 10. This does not mean that the Court ’ s supervision is limited to ascertaining whether these authorities exercised their discretion reasonably, carefully and in good faith. The Court must rather examine the interference in the light of the case as a whole and determine whether it was proportionate to the legitimate aim pursued and whether the reasons adduced by the national authorities to justify it were relevant and sufficient. In doing so, the Court has to satisfy itself that these authorities applied standards which were in conformity with the principles embodied in Article 10 and relied on an acceptable assessment of the relevant facts.”

4. It is stated in paragraph 50 of the present judgment that “it is not incumbent on the Court to perform a full proportionality analysis” (emphasis added) in the absence of a balancing test carried out at national level in conformity with the criteria laid down in the Court ’ s case-law.

5. It appears that the phrase “full proportionality analysis” has never before been used by the Court in its case-law. The adjective “full” used in paragraph 50 of the present judgment is the opposite of the adjective “partial”, and it implies, as it is used in the judgment, that the Court sometimes proceeds to perform a partial proportionality analysis.

6. In our view, however, the proportionality test by its very nature can never be partial. It is a process involving different steps or phases, which can either be fulfilled or not fulfilled. The domestic courts must always fulfill the proportionality test, as the Court itself must do. There is no exception. It is not enough for the Court to declare a violation or to state that the domestic courts have not provided relevant and sufficient reasons, because in order to perform this evaluation and reach a conclusion, the Court must first carry out its own analysis and interpretation of what the domestic courts have already done and also conduct the proportionality test. The principle of proportionality is an indispensable tool for interpreting and applying the Convention provisions.

7. In this concrete case, after having conducted our own proportionality test with regard to the two competing rights, we both arrive at the same conclusion as the judgment.

[1] . Underlining added (see paragraph 9 below)