CONCURRING OPINION OF JUDGE KŪRIS

1. Having voted together with my distinguished colleagues in finding a violation of Article 10 of the Convention in respect of four applicants, I am nevertheless not fully satisfied with the reasoning leading to this finding, which is laid down in paragraphs 84–86 of the judgment. As stated in paragraph 87, that finding is based on “various” considerations presented in the three preceding paragraphs. In my opinion, that “variety” could be kept to a minimum. For a finding of a violation of Article 10, the reason indicated in paragraph 84, with some rewording, should have sufficed on its own: namely that the guidelines for the classification of stage productions were inaccessible to the public, and therefore the impugned “interference was a result of a procedure which was not pr escribed by law” (see paragraph 87). The latter statement is relevant not only to the guidelines which were legally absent. But the fact that Regulation 47 deals explicitly only with films does not necessarily mean that it could not be inte rpreted ‑ extensively or by analogy – so as also to cover stage productions: if Regulation 64 (1) could b e read together with Regulation 45, why could it not be read together with Regulation 47, which is an “extension” of Regulation 45 in its own right? In order to prefer a verbatim interpretation of Regulation 47 (as the Chamber does – though with a very cautious reservation – in clear contradiction to the reading by the Constitutional Court of Malta), at least some consideration of the method(s) of its interpretation was more than desirable.

2. If, however, these contiguous shortcomings of the law applied in the applicants ’ case were to be addressed, then there was something else which had to be addressed too. The Chamber found that “the law relied on ... was not of a sufficient quality”. Again, this applies not only to the guidelines mentioned above, but also to Regulation 42 (2), the “completeness” and “precision” of which has been rightly recognised as “questionable”. But the shortcomings of the Regulation are not confined to its “incompleteness” and “imprecision”. They encompass also the Board ’ s power to rule on the “literary, artistic or educational merit” of productions, “if any”, and to ban some of them as “not fit for exhibition”. This privilege, so indiscriminately worded, smells of discretionary censorship, especially (but not only) having regard to the Board ’ s (whatever its members ’ professional and moral merits) appointment by the Parliamentary Secretary for Culture and Local Government, that is to say, by members of the Government. After all, Regulation 47A mentions the “Board of Film and Stage Censors ” and not their “ Classification ” (compare paragraphs 58 and 7 respectively; emphasis added). The word “censors” is perhaps rather too instructive. However, the deeper problem of the limits of discretionary censorship was not touched upon in the judgment.

3. One last point. The Chamber recognise d the second applicant as a non ‑ victim of the alleged violation. In order to be able so to conclude, the Chamber gave prominence to the fact that that applicant had not lodged an appeal against that part of the judgment of the first-instance court which found him to have no victim status “in his own capacity” and interpreted this omission as “acceptance” of the finding of the first-instance court by the second applicant. But the Chamber does not know the real reasons behind the failure to lodge such an appeal. The second applicant might have not accepted the said finding at all, but had not appealed against it owing to some overriding personal circumstances. Who knows? Rather than taking on board this far-fetched “acceptance” excuse, the Chamber should have stated directly and determinedly (as did the first-instance court) that that applicant could not claim to be a victim of a violation of the right to freedom of expression under Article 10, because the latter does not cover the activities of theatre directors (unless they are artists at the same time), just as it does not cover the work of accountants, managers, service providers, stewards etc. At times excessive caution gratuitously leaves questions open where there should be full clarity.