JOINT DISSENTING OPINION OF JUDGES WOJTYCZEK, VEHABOVIĆ AND HARUTYUNYAN

1. We respectfully disagree with the view that Article 10 of the Convention has been violated in the instant case.

2. We agree, in general, with the methodology applied by the majority, however we diverge on some more specific points and, in particular, on: (i) the precise formulation of the standard of protection provided to judges and prosecutors against abusive speech, (ii) the weight of the authority of justice as a ground justifying limitations upon speech, and (iii) the evaluation of the domestic judgments and, in particular, the assessment as to whether the factual basis for the impugned statements was sufficient.

3. We fully agree with the starting premise expressed in paragraph 118 in the following terms: “Where the balancing exercise between the rights protected by Articles 8 and 10 of the Convention 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.”

We would like to add that the impugned restrictions upon the applicant’s freedom of speech were imposed in the context of a civil-law dispute between private parties for the sake of protecting the reputation of the other party, namely O.S.H. The instant judgment declares the protection provided by the domestic courts to O.S.H. to be contrary to the Convention and therefore affects O.S.H.’s legal and factual position. At the same time, O.S.H. has not been invited to present her submissions before the Court in order to defend her legitimate interests. This fact is an additional argument for judicial caution and against substituting the Court’s view for that of the domestic courts in the instant case.

4. We agree with the following assumption in paragraph 129: “the Court takes the view that O.S.H. belonged to a group of persons who could not claim protection of her right to respect for her private life in the same way as an ordinary citizen (see paragraph 116 above), or even a professional for that matter, could. She was therefore subject to wider limits of acceptable criticism than ordinary individuals and professionals.”

5. We further agree with the standard formulated in paragraph 136: “the question that remains is whether a sufficiently accurate and reliable factual basis proportionate to the nature and degree of the article’s statements and allegations can be established (see, mutatis mutandis , Reznik v. Russia , no. 4977/05, § 46, 4 April 2013, and Rungainis v. Latvia , no. 40597/08, § 63, 14 June 2018).”

We note however that this standard is not consistently applied throughout the reasoning and the majority refer also to the more lenient standard of the existence of “any factual basis” (see paragraph 142). Moreover, it is not clear how the standard of “sufficient/insufficient factual basis” has to be articulated with the standard of “gravely damaging attacks which are essentially unfounded” (see paragraph 7 below). The two standards are not identical.

6. We note that in some States, including Romania, the judicial system, as well as individual judges and prosecutors, are sometimes subject to harsh criticism and attacks which tend to undermine public confidence in the integrity of the judiciary. Such attacks may further fuel demagogy and prepare grounds for structural reforms impairing the quality of that system. We would like to highlight here the following assessment made by the Commission to the European Parliament and the Council, in its report of 2013 (see paragraph 80): “The Commission would also like to draw attention to the role of the media. There have been numerous examples of the media exercising pressure on the judiciary, as well as particular doubts whether the National Audiovisual Council is proving an effective watchdog. The situation suggests the need for a review of existing rules, to ensure that freedom of the press is accompanied by a proper protection of institutions and of individuals’ fundamental rights as well as to provide for effective redress.”

In this context, maintaining the authority and impartiality of the judiciary, as provided in Article 10 § 2 of the Convention, is an objective whose significant weight has to be duly taken into account when weighing up the conflicting values in freedom of expression cases.

7. The majority (quoting Morice v. France [GC], no. 29369/10, § 128, ECHR 2015) appear to limit the protection offered to judges and prosecutors to “gravely damaging attacks which are essentially unfounded” (see paragraphs 113 and 135). In our view, such a restrictive reading of the reasoning in Morice is not justified and protection should not be limited to gravely damaging attacks but should extend to other untrue factual statements or excessive value judgments damaging the reputation of judges and prosecutors, if such statements and value judgments are devoid of a sufficient factual basis.

8. The majority reproach the domestic courts for a certain number of shortcomings in their reasoning and rely, in particular, upon the following arguments (see paragraph 139): “The Court is not convinced that the Court of Appeal provided sufficient reasons for this selective approach in its reading of the impugned statements or for its conclusion that there was no factual support for those statements. In doing so, the Court of Appeal ignored the fact that the impugned statements were part of a lengthy and detailed description and analysis of the circumstances ...”. In our reading, the domestic judgments, in their reasoning, while focusing on the impact of a few specific statements have not overlooked at all this broader context (see in particular paragraphs 62-64). Moreover, this broader context does not appear to attenuate the damaging force of the impugned statements. We would note here that the statements in the article that were singled out by the last-instance court as being problematic (see paragraph 67) were analysed in the context of the circumstances surrounding the investigation in the N.T. case and the roles played by each of the two prosecutors involved in the processing of the case, as well as their duties, degree of responsibility connected to that case and the procedural shortcomings that had affected its outcome (see in particular the summary of the domestic judgment provided in paragraph 68).

The majority further attach particular importance to the fact that “even though O.S.H. appears have been given several chances by the publication to comment on the information published and the allegations made about the N.T. case, she made no apparent attempt to use them” (paragraph 145). We do not find this part of the reasoning convincing. Although respect for the right to reply may be an important circumstance in some cases, thus indicating that the tenets of responsible journalism have been observed, this issue does not appear relevant in the instant case. The fact that the person concerned declined to reply to a press publication does not extend ( ex post ) the scope of the journalists’ freedom of speech and does not make the factual basis more solid.

Given the available evidence, we see no reason to call into question the Court of Appeal’s general assessment or its specific finding to the effect that the applicants’ disputed statements were not supported by a sufficient factual basis and could be considered to constitute a potentially gravely damaging attack. More generally, we consider that the case was thoroughly considered by the domestic courts, which provided extensive and persuasive arguments in support of their judgments and we do not see sufficient reasons for the Court to substitute its own views for those of the domestic courts.

9. The majority underline in paragraph 148 that “under the circumstances, the sanction imposed was capable of having a dissuasive effect on the exercise of the applicants’ right to freedom of expression”. We respectfully disagree. The sanction imposed was one of a purely civil nature, it does not appear excessive in the circumstances of the case and it was not of such a kind as to have a “chilling” effect. Reversing the argument referring to this effect, we note in this context that the lack of an adequate sanction for abusive speech may have an “emboldening effect” and contribute to the brutalisation of public debate.

10. The majority rightly acknowledge in paragraph 144 the following crucial points: (i) “the specific wording used in the impugned statements was imprecise and could be interpreted as wrongfully suggesting responsibility on the part of O.S.H. for an event for which she was not in fact responsible”, (ii) they were “worded in an inappropriately categoric form” and (iii) they were written with some “degree of exaggeration”.

In our assessment, although wider limits of acceptable criticism apply to prosecutors and although the article’s statements and allegations were not devoid of “any factual basis”, they were not based upon a sufficiently accurate and reliable factual basis or proportionate to the nature and degree of their content and, as a result, went beyond the limits of the permitted degree of exaggeration.