CONCURRING OPINION OF JUDGE WOJTYCZEK

1. I fully agree with my colleagues that Article 10 of the Convention has been violated in the instant case but at the same time I have serious reservations concerning certain parts of the reasoning.

2. The judgment reiterates the distinction between statements of fact and value judgments (see paragraph 62). Statements of fact can be verified and proven, whereas value judgments can be justified by rational arguments. The distinction in question is, however, of much lesser relevance than it may prima facie appear.

Firstly, the distinction in question is not a logical partition but a typology. In the natural language, there are logical propositions describing facts, and there are value judgments, but very often utterances simultaneously describe facts and express value judgments. The phrase “he is a malicious cop” simultaneously: (i) indicates that the person referred to is a member of the police, and (ii) shows that the speaker has negative feelings concerning this person, and (iii) expresses a negative assessment of his work in the police. The factual layer of an utterance may be proven or not, whereas the assessment layer of the same utterance may be justified or not by relevant argument. Also the instant case shows that statements of fact and value judgments mix.

Secondly, as explained below, under the case-law of the Court a person taking part in a public debate is usually not required to prove the veracity of his statements. A sufficient factual basis for the fact statement suffices, as in the case of value judgments.

In this context, the traditional dichotomy of statements of fact and value judgments should be revisited.

3. The judgment contains the following statement in paragraph 75 in fine :

“Accordingly, the domestic courts applied the so called ‘ presumption of falsity ’ (sometimes referred to as the ‘ defence of justification ’ or the ‘ defence of truth ’ ), under which defendants are required to prove to a reasonable standard that factual allegations are true. The Court has held that such an approach does not, as such, contravene the Convention ... However, it has also held that if an applicant is clearly involved in a public debate on an important issue he should not be required to fulfil a more demanding standard than that of due diligence. In such circumstances, the obligation to prove the factual statements may deprive the applicant of the protection afforded by Article 10 ... ”

All these propositions (propositions in the meaning of logic) are true. It would, however, be more precise to say that whereas in the Court ’ s older case-law the requirement to prove to a reasonable standard that factual allegations were true was declared compatible with the Convention, more recent case-law (see for instance the cases cited in the re asoning paragraphs 62 in fine and 75 in fine together with the judgments in the cases of Kasabova v. Bulgaria , no. 22385/03, §§ 63 and 64, 19 April 2011, and Tavares de Almeida Fernandes and Almeida Fernandes v. Portugal

no. 31566/13, § 56, 17 January 2017) has departed gradually from this approach in respect of allegations made in a public debate by applying the “sufficient factual basis” test and the requirement of due diligence, which is closely connected with this test. Initially, this new approach was applied to politicians participating in a lively debate and to journalists and, subsequently, it was extended to other persons. As a result, in the context of public speech, the truth requirement has been replaced by the sufficient factual basis test.

The instant case enhances this approach and further illustrates the inadequacy of the truth standard in certain contexts. I agree with the sufficient factual basis and due diligence standards adopted in the reasoning. There are situations in which it is legitimate to draw the attention of the public to certain pathologies, if there are strong indications that they exist even if the full proof of the truth is impossible. However, this approach is not without danger to the necessary protection of reputation. It may be accepted only if domestic legislation provides for sufficient instruments to protect the reputation of the persons concerned when the allegations are ultimately found untrue. I would like to add that criminalisation of defamation and insult belongs to such instruments but cannot be seen as sufficient to protect the victims of statements that have a sufficient factual basis but are later proved to be untrue.

4. The judgment contains the following assertion in paragraph 83 in fine :

“The Court also takes note of the fact that the respondent State has since decriminalised defamation (see paragraphs 36 and 37 above).”

I would like to add in this respect that the issue of the criminal-law approach to insults and defamation has to be placed in the context of the intensity of freedom of speech protection. There are grounds to oppose such criminalisation in the context of the “proof of truth” requirement and strong protection of personality rights. There are even more serious reasons to oppose decriminalisation when the Court ensures very strong protection of freedom of speech by replacing the requirement to prove the truth by the “sufficient factual basis” test.

More generally, strong protection of freedom of expression is not without social cost, such as the real danger of public debate being brutalised. I share the concerns expressed by Judge Kuris in his numerous separate opinions about the excesses of free speech (see for instance his remarkably eloquent separate opinions in the cases of Selahattin DemirtaÅŸ v. Turkey , no. 15028/09, 23 June 2015, and Szanyi v. Hungary , no. 35493/13, 8 November 2016).

5. The judgment explains that the fact/value distinction loses relevance in the following terms (see paragraph 62 in fine ):

“However, it is to be noted that that distinction is of less significance in cases where the impugned statement has been made in the course of a lively political debate and where elected officials should enjoy a wide freedom to criticise Government actions, even if the statements made may lack a clear basis in fact (see, mutatis mutandis , Lombardo and Others v. Malta , no. 7333/06, § 60, 24 April 2007).”

I agree with the assertion that where the impugned statement has been made in the course of a lively political debate it may lack a clear basis in fact. I disagree with the suggestion that this applies only to elected officials, for reasons explained below. It applies to anyone taking part in a public debate. Not only elected officials but everyone should enjoy a wide freedom to criticise government actions and not only in the course of a lively political debate but in the course of any public debate.

I note in this context that the judgment expresses the following view in paragraph 80:

“Given the on-going lively political debate about the issue at stake, the Court is unable to accept the domestic courts ’ view that he was required to prove the veracity of his allegations.”

In my view, the existence of an on-going lively political debate has not been sufficiently established in the instant case. No evidence was provided to the Court to this effect. In any event, the existence of a lively political debate is irrelevant. Even assuming that there was no such lively debate, it was not justified to require the applicant to fulfil a more demanding standard than that of due diligence.

6. Utterances have to be placed in their context. There are situations in which the context is of crucial importance to understand the content and impact of an utterance. However, this is not always the case.

The judgment emphasises, in paragraph 65, that the applicant made those remarks on behalf of the party and accordingly, in a political context. In the instant case the fact that the applicant made his remarks on behalf of a political party is irrelevant from the viewpoint of the proportionality analysis. In particular, it affects neither the meaning of his message nor its impact upon the audience. Had he made the same remarks on his own behalf, his remarks would also belong to political speech. They belong to political speech because of their content and because they were made publicly. The scope of his freedom of speech should remain the same, whether the applicant ’ s utterances were expressed in the name of his party or not. On the other hand, not all remarks made on behalf of a political party are necessarily political speech. The analysis of context has not been carried out correctly in the instant case.

7. The judgment stresses the following factual elements (see paragraph 78):

“ ... it is noteworthy that the impugned questions were related to and consisted of ‘ public rumours which have become stronger ’ . The applicant essentially raised a question about something that had already been subject to public discussion ... Accordingly, his remarks were neither novel nor did he present them so as to be perceived as his own assertion.”

I strongly disagree with this approach. Firstly, reference to rumours is a frequent technique used in order to minimalise legal risks when disseminating false information. The rumours may have been invented by the speaker and it is impossible to verify whether they were really being spread beforehand. The general public usually consider that “there is no smoke without fire” and that rumours referred to by a speaker reflect, at least partly, the truth.

Secondly, the fact that a speaker refers to a rumour is not evidence that a matter has already been the subject of public discussion. Whether the applicant raised a question about something that had already been publicly discussed remains to be verified.

Thirdly, even if references to rumours are not presented so as to be perceived as one ’ s own assertions, such a reference gives the rumours more weight and tends to corroborate them in the eyes of the audience. In the instant case, it is the applicant who speaks and gives rumours much more credibility and a much broader audience.

The argument used is therefore not devoid of naivety.

8. The part of the reasoning assessing the proportionality of the interference strongly emphasises that the applicant is a politician and a member of parliament (see paragraphs 65, 66, 67, 78 and 82). It suggests that this fact has to be taken into account in the examination of the proportionality of the interference and that it is a factor of primary relevance which weighs in favour of an applicant. It therefore also implicitly suggests that, had an applicant been neither a politician nor a member of parliament, an important factor for finding a violation would be missing and that this might have tipped the balance in favour of the respondent State. In other words, the same speech content may be permissible or not depending upon whether the applicant is a politician (parliamentarian) or not.

The reasoning appears therefore to be based upon the underlying assumption that the freedom of speech of politicians in general and parliamentarians in particular has to be broader than the freedom of speech of “commoners”. The implicit message that can be gleaned from the judgment is that the political elites have a special role to play in society and therefore may enjoy broader rights.

I strongly disagree with the approach adopted in this respect. The fact that the applicant is a politician and a member of the national Parliament is completely irrelevant in the instant case. Had the applicant been a person who was neither active in politics nor a member of an elected body, the outcome of the case should have been exactly the same. Can certain unpleasant things be said only by some but not by everyone?

On the other hand, I agree that, in some States, opposition politicians and parliamentarians may be particularly targeted by the authorities. Stronger threats may justify specific protection tools. There may be special legal tools in domestic law, such as parliamentary immunity, in order to protect parliamentarians against arbitrary interference by the public authorities. These instruments protect first and foremost the constitutional democracy and the legislative body, not the personal interests of the persons protected. They are particularly necessary to protect speech which forms part of the official duties in an elected body and which may remain unprotected by constitutional rights and international human rights instruments. They stop the action of the authorities, but they should not widen the scope of the speech content protected under the Convention .

Stronger threats are not a reason – under the Convention – to allow politicians a broader scope of permissible utterances than non-politicians. It suffices that the same scope of freedom is – in the case of parliamentarians – protected by certain special legal tools introduced at the domestic level and adapted to the potential threats.

9. The judgment contains, inter alia , the following statement (paragraph 78):

“He merely put the matters that were of general interest for public debate, which, in the Court ’ s view, is the role of politicians and members of parliament, as representatives of the electorate.”

I strongly disagree with the view expressed in the second part of this sentence. On this point, I agree with the domestic court which expressed the following view (see the judgment of 3 November 2009, quoted in paragraph 13, emphasis added):

“ ... every person , including a member of a political party, as is [the applicant], has the right to put questions of public interest, to criticise the work of the Government and to express concerns about someone who holds the highest office in the executive.”

In a constitutional democracy, everyone can raise matters of general interest for public debate. In particular, to raise matters of general interest for public debate is the role of each citizen. It belongs to the essence of citizenship.