CONCURRING OPINION OF JUDGE SAJ Ó

I fully agree with my colleagues that Article 10 was violated in this case for the reasons expressed in the judgment. I would like to add only an explanatory note on the meaning of paragraph 59 of the judgment. I voted a few months ago for this text, but, in view of possible misunderstandings, I find it necessary to explain the meaning of the wording so that it conforms unequivocally to the Court ’ s case-law.

The paragraph in question reads as follows:

“In assessing the relevance and sufficiency of the national courts ’ findings, the Court, in accordance with the principle of subsidiarity, thus takes into account the extent to which the former balanced the conflicting rights implicated in the case, in the light of the Court ’ s established case-law in this area. If the reasoning of the national court demonstrates a lack of sufficient engagement with the general principles of the Court under Article 10 of the Convention, the degree of the margin of appreciation afforded to the authorities will necessarily be narrower. Indeed, as the Court has previously held in the Article 10 context, ‘ the quality of ... judicial review of the necessity of the measure is of particular importance in this respect, including the operation of the relevant margin of appreciation ’ (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08 , § 108, ECHR 2013 (extracts)).” [1]

To my knowledge (based on a HUDOC search) , the re is only one other instance (in another case brought by the same applicant) where the word “subsidiarity” is mentioned at all among general principles in the Court ’ s Article 10 case-law. [2] On the other hand, reference to subsidiarity is a rather standard or preferred argument of some Governments. For example, in Rubins v. Lithuania ( no. 79040/12 , § 66, 13 January 2015 ) the Latvian Government referred to the principle of subsidiarity allegedly reiterated in the Palomo Sánchez judgment. [3] On that authority the Government maintained that the domestic court “had thoroughly analysed the evidence brought before it, thus rendering the sanction proportionate to the legitimate aim of protecting ... reputation and dignity ” ( § 66) . [4]

While subsidiarity is not mentioned in the determination of the necessity of a limitation of rights, the Court should give due consideration to the role of domestic courts in matters of balancing Convention rights. It is for this reason that a “certain” (as opposed to wide! ) margin is granted to the States. It is also clear that where the Court has to decide a matter of conflicting Convention rights (as is the case here) , this is discussed in terms of the margin of appreciation. [5] In such circumstances the Court requires that the domestic authorities strike a fair ( that is, not a specifically correct, optimal, etc.) balance (s ee Aksu v. Turkey [GC], nos. 4149/04 and 41029/04 , § 66, ECHR 2012, citing additional case-law ) . In consequence, “ [w] here the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts ” ( see Axel Springer AG v. Germany [GC], no. 39954/08 , § 88, 7 February 2012 ).             

It was probably unfortunate to introduce the term “subsidiarity” in paragraph 59 of the judgment in the present case , as it may give support to a misunderstanding among legal writers or even a departure from the case - law of the Grand Chamber. Subsidiarity cannot change the margin of appreciation. Subsi diarity is present in all cases; it is a structural feature of the human rights protection system under the Convention. The two concepts will perhaps move toward s “parallel concepts” once Protocol No. 15 is accepted. [6] But they remain distinct even in that Protocol.

At the end of the day, the applicable standard is articulated in Palomo Sánchez (cited above, § 57) : “ If the reasoning of the domestic courts ’ decisions concerning the limits of freedom of expression in cases involving a person ’ s reputation is sufficient and consistent with the criteria established by the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts . ” The fact that this standard was not cited in the judgment does not disclose any intention to depart from it . [7]

I have to admit, however, that it would have been more felicitous to follow the language used in Grand Chamber judgments, [8] in particular, as regards the second sentence of the impugned paragraph 59, the wording of Aksu (cited above, § 67) :

“ If the balance struck by the national judicial authorities is unsatisfactory, in particular because the importance or the scope of one of the fundamental rights at stake was not duly considered, the margin of appreciation accorded to the decisions of the national courts will be a narrow one. However, if the assessment was made in the light of the principles resulting from its well-established case-law, the Court would require strong reasons to substitute its own view for that of the domestic courts, which consequently will enjoy a wider margin of appreciation (see MGN Limited v. the United Kingdom , no. 39401/04, §§ 150 and 155, 18 January 2011, and Von Hannover v. Germany (no. 2) [GC] , nos. 40660/08 and 60641/08, § 107, ECHR 2012). ”

[1] Only the last sentence of the paragraph comes directly from Animal Defenders International . Moreover, the citation is not complete, and this too might be a source of misunderstanding. In Animal Defenders , a case about a general measure (which happens to be, in my view, a blanket ban) , the judiciary was working together with legislation in the determination of proportionality; this broader process was considered for the purposes of satisfying the Hatton criteria, which were originally limited to the review of parliamentary debate (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 104, ECHR 2003 ‑ VIII) . In Animal Defenders the proportionality analysis undertaken by the domestic courts was considered in addition to the legislative debate, in which , perhaps, the issue of proportionality was not thoroughly considered.

It is perhaps time for the Court to revert to first principles. Legislation is not immune from our review. This was clearly stated a long time ago: t he Court’s “supervision concerns both the aim of the measure challenged and its ‘ necessity ’ ; it covers not only the basic legislation but also the decision applying it, even one given by an independent court” (see Handyside v. the United Kingdom , 7 December 1976, § 49, Series A no. 24 ) .

This position h as never been openly rebutted.

[2] Erla Hlynsd ó ttir v. Iceland (no. 2) , no. 54125/10 , 21 October 2014.

[3] Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, ECHR 2011 ( h owever, the term “subsidiarity” does not appear in this judgment).

[4] Another G overnment argument of this kind can be found in Stoll v. Switzerland [GC], n o. 69698/01, § 77, ECHR 2007 ‑ V . It was duly rebutted.

[5] “Because of their direct, continuous contact with the realities of the country, a State’s courts are in a better position than an international court to determine how, at a given time, the right balance can be struck. For this reason, in matters under Article 10 of the Convention, the Contracting States have a certain margin of appreciation in assessing the necessity and scope of any interference in the freedom of expression protected by that Article” (see Palomo Sánchez , cited above, § 54 ) . This principle goes back to Handyside ( cited above, § 48 ) .

It is clear that the use of the overburdened and highly criticised term “margin of appreciation” in this context has created additional problems in terms of legal doctrine.

[6] See also a reference along these lines by President Spielmann , http://www.echr.coe.int/Documents/Speech_20140320_London_ENG.pdf

[7] It is a matter of consideration to what extent the “the national courts explicitly took account of the Court’s relevant case-law” (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08 , § 125, ECHR 2012 ) . But the fact that the criteria were considered must not be understood as rendering the Court’s supervisory role futile . In Axel Springer five dissenting judges took the view that only where the domestic courts applied the relevant criteria in a manifestly unreasonable way, or failed to duly assess the presence of some important factor , should the Court undertake its supervision ( see Axel Springer AG , cited above, dissenting opinion of Judge López Guerra joined by Judges Jungwiert , Jaeger, Villiger and Poalelungi ). This was not the path taken by a substantial majority.

[8] It has to be admitted that there is a little inconsistency in the wording used in Grand Chamber cases , and the quoted paragraph from Aksu differs slightly from the language used in Von Hannover and Axel Springer , delivered six weeks earlier. I regret that I did not notice this earlier , trusting the authority of Animal Defenders International (cited above , § 108 ). As mentioned , Palomo Sánchez and its progeny settle the matter with some clarity.