CONCURRING OPINION OF JUDGE KOSKELO

1. I have voted with my colleagues in favour of finding a violation of Article 10 in this case, and while agreeing broadly with the reasons given in the judgment I would nevertheless like to add the following remarks.

2. The present case is a good illustration of the particular importance of the quality of the domestic proceedings and decisions in situations of this kind, where the underlying issue involves the opposing Convention rights of two or more individuals. Only at the domestic level do the proceedings involve both of the parties whose opposing rights are at stake. Therefore, full procedural fairness and equality of arms between those parties can only be secured at the domestic level. In proceedings before this Court the configuration is not comparable, as one of the original parties to the dispute is absent and the complaint made by the other party is considered without any input from his opponent at the domestic level. While the Government, as respondents before this Court, are able to defend the domestic decisions, it is not their role to represent the other private party whose rights were also at issue in the underlying domestic proceedings, nor are they in a position to do so. The proper balancing of the opposing individual rights thus depends fundamentally on the quality of those domestic proceedings and decisions, with this Court ’ s role being limited to a review of the domestic decisions as they stand, on the basis of the complaints and observations submitted in the present procedure. Any shortcomings in the proceedings before the domestic courts may prevent this Court from having the full picture before it and/or from considering all the aspects of the underlying domestic case, even where they might otherwise have been relevant to the analysis under the Convention.

3. In the present case the domestic proceedings arose from a compensation claim filed by A against the applicants on the grounds that the latter had given front-page coverage to a criminal complaint that had been submitted to the police involving A. He had been identified both by name and in pictur es, in print as well as online.

4. In these types of situations, the balance to be struck between the competing rights, namely freedom of expression as protected under Article 10 on the one hand and the right of the individual concerned to the protection of his reputation as recognised under Article 8 on the other hand, depends on a whole range of circumstances and considerations, as developed and elaborated upon in the Court ’ s case-law. Although the general principles that should guide the assessment are well established, it is both clear and inevitable that the outcomes will largely depend not only on the factual circumstances of each case but on how those circumstances have been dealt with in the domestic proceedings. This in turn depends both on how the circumstances have been presented, proven and argued at the domestic level and on how they have been addressed and considered by the domestic courts. The quality of the domestic proceedings is not just important, it may be decisive for the outcome, including the outcome of the r eview undertaken by this Court.

5. When an individual, as a result of references that identify him or her personally, is “outed” by the media before the public as being suspected of serious criminal conduct, it is not a trivial matter. In such a delicate context, several elements must, in line with the Court ’ s case-law, be taken into account when considering whether and to what extent the right to freedom of expression outweighs the right of the individual to benefit, in addition to the protections to which he or she is entitled vis-à-vis the State authorities under Article 6, from some measure of fair treatment in the media and before the general public.

6. When the media engage in crime reporting and identify individuals in the process, in particular during ongoing proceedings, they can and must be expected to live up to certain standards of professionalism not only with regard to the factual basis of the reporting but also with regard to the basic legal aspects of criminal proceedings, such as the key distinctions between the different stages of such proceedings and their bearing on the position of the person or persons who are the subject of the reporting. In my opinion, it is not asking too much to require that professional journalists in this field should know, and make known, matters such as the difference between someone having been reported to the police on the grounds of a suspicion of criminal conduct, and someone being the subject of an investigation opened by the police on the grounds of such a suspicion. In particular, it is not asking too much to require that any significant mistakes or inaccuracies in such (or similar) respects concerning an individual who has been publicly identified as a suspect should be subsequently corrected, at least on request.

7. Moreover, I would regard it as a basic requirement for professional journalism that if and when freedom of expression is exercised by identifying an individual in a context such as the present one, he or she should be offered a real and fair opportunity to respond to and comment on the report either in the same context or at least shortly afterwards. Another relevant element is whether and how the initial reporting is followed up as the proceedings progress and reach their formal conclusion.

8. Turning to the present case, the domestic courts ’ decisions were focused on the question whether the impugned statements could be considered factually correct, given that no formal investigation by the police had been opened at the time. According to the domestic courts, the published statements had been wrong and defamatory as A ’ s reputation had been attacked at a time when there were no grounds for it.

9. I can agree with the majority that in the context of the impugned statements, the mere choice of words, that is, the failure to make a formal distinction between the police having “examined” rather than officially “investigated” the suspicion that had been reported to it, should not in itself be viewed as decisive, especially with regard to the general connotation of the wording used (see paragraph 51 of the judgment). I can also agree with the finding that given A ’ s position as a university-level teacher in business studies, the fact that the accountants engaged by the bankruptcy liquidator had produced a report raising suspicions of criminal wrongdoing relating to company assets on the part of the management of which A was a member, and that such a report had been submitted to the police, raised an issue of public interest of a kind that could justify his being identified to the public at that stage of the proceedings, in particular in the wider context of media coverage dealing with the aftermath of the financial crisis in the country (see paragraph 53 together with paragraph 52 of the judgment).

10. I am, however, left with some doubts regarding certain other aspects of A ’ s treatment by the applicants in their article. It transpires from the Government ’ s submissions that the applicants had not made any serious attempt to reach A for comment in advance of publication. In such circumstances – as it is hard to see any justification for not providing a person identified as a “suspect” with a fair chance to respond – it is all the more significant what follow-up was given to the initial article. In this regard, we are faced with some unaddressed questions that would, at least for me, have been relevant considerations, such as whether or not A was offered a subsequent opportunity to comment and give the public his version of the events, and whether or not the applicants continued to cover the matter to the point of also reporting to the public, at a later stage, that the police investigation had been closed without any charges being brought against A (see paragraph 20 of the present judgment).

11. As matters stand, it is not known to us whether such factual elements were even raised before the domestic courts, or whether the domestic courts failed to address them, either way, in conducting their own balancing exercise.

12. In this regard it is worth noting, as far as the Convention case-law is concerned, that in the case of Ormanni v. Italy (no. 30278/04, 17 July 2007, cited in paragraph 48 of the present judgment), while the plaintiff in the underlying domestic proceedings had not even at the outset been targeted in the impugned article in a similarly spectacular manner as in the present case, the Court, in finding no violation of Article 10, gave weight to the fact that his version of the subject-matter had been made public separately, in the wake of the original story. Thus, in addition to publication itself, the follow-up may be of importance when assessing whether the treatment in the media of an individual whose conduct has been the subject of publicised suspicions has remained within the boundaries dictated by the protection of the latte r ’ s reputation under Article 8.

13. The present case is, however, framed before us in narrower terms. Given the factual elements relied upon, the submissions made and the considerations set forth in the domestic decisions, I concur with the majority in finding that the reasons given by the domestic courts were not sufficient to justify the interference with the applicants ’ rights under Article 10.