CONCURRING OPINION OF JUDGE KOVLER

Not without some hesitation, I have joined the conclusions of the Chamber that there has been no violation of Article 10 of the Convention in this particular case.

Nevertheless, I would like to express my opinion about the fact that the applicant was ordered not only to publish a retraction and to pay the claimants a symbolic amount of damages, but also to issue an apology. Firstly, the Court has already found that “an apology” cannot be considered “necessary” under Article 10 (see Kazakov v. Russia , no. 1758/02, § 30, 18 December 2008); thus, the domestic courts overstepped to a certain extent the narrow margin of appreciation afforded to them for restrictions on debates of public interest. Secondly, the judicial order to extend an apology had no clear legal basis in domestic law: at the material time (2003-2004) the domestic courts interpreted the notion of retraction as possibly including an apology. And only Resolution no. 3 of 24 February 2005 of the Plenary Supreme Court of the Russian Federation prohibited the courts from ordering defendants to extend an apology to a claimant, because that form of redress had no basis under Russian law, including Article 152 of the Civil Code (see paragraph 32 of the judgment).

Only the fact that this clarification was issued after the adoption of the judgments by the domestic courts in the present case swayed my position to finding no violation of Article 10 of the Convention.