DISSENTING OPINION OF JUDGE GUERRA MARTINS, JOINED BY JUDGES VEHABOVIĆ AND MOTOC

With all due respect to my colleagues, I am unable to subscribe to their view that Article 10 has not been violated.

1. The main legal issue in this case is to assess whether the decisions of the domestic courts struck a fair balance between the competing rights at stake – the freedom of expression and the public’s freedom of information under Article 10, the right to respect for one’s private life and the right to protection of one’s own image under Article 8 of the Convention – and ruled in accordance with the criteria established by the Court for that purpose.

2. It is not unusual that in cases raising issues of conflicts of rights, where a fair balance must be struck between two different rights, it may be difficult to draw a clear dividing line between violation and non-violation because it depends on the weight that each person gives to each individual criterion and to all of them together.

3. As for striking a balance between the freedom of expression and the right to respect for one’s private life, the Court already has well-established criteria for doing so. It goes without saying that I do not wish to depart from those criteria.

4. Accordingly, I can accept the reasoning of the majority concerning some of the criteria (for example, the part of the judgment on how well ‑ known the person affected by the news was). In my opinion, however, the majority underestimated other criteria (for instance, the contribution to a debate of general interest, and the veracity of the information), and also overestimated others (for example, the lapse of time between the conviction, the release and the publication of the information).

5. In short, my main divergence with the majority concerns the assessment of the first criterion, relating to the contribution to a debate of general interest. I cannot accept the domestic courts’ conclusion that publishing H.S.’s photo in a report on N.H.’s political milieu did not contribute to a debate of general interest, i.e., the debate on the election.

6. In my view, given that the article drew attention to the Neo-Nazi past of someone who might still be close to a presidential candidate – even if it is highly unlikely – the public has the right to have access to that information. In principle, an elector with access to all the relevant information is better ‑ placed and freer to choose between two or more candidates than an elector who lacks that information. This assertion is even more valid in the context of the election in question, which had been disputed and was subject to a decision of the Constitutional Court declaring the first election void. The run-off ballot thus had to be repeated.

7. To put it differently, while for the majority “publishing H.S.’s photograph in a report on N.H.’s political milieu with an incomplete accompanying text ... did not contribute to the debate on the election, despite the particular public interest in the report as such”; for me, on the one hand, the particular context of those elections justified the broadest possible diffusion of information by the media on the candidates and their entourage , and, on the other hand, that context meant that it was quite important for the public to know who might be supporting each candidate.

8. In my opinion, democracy has to protect itself from certain political parties and persons who want to destroy it. Membership of a Neo-Nazi party is such a serious threat to democracy that the mere suspicion that a presidential candidate might have such individuals among his/her supporters is ample justification for publishing the photograph in question.

9. I would take the view that the domestic courts did not have regard to the importance of the media in protecting democracy, particularly where the Neo-Nazi ideology is concerned. The courts attached greater importance, for instance, to the lapse of time between the conviction, the release and the publication of the article than to the information itself.

10. For me, by contrast, the Neo-Nazi past of a person who might could still have a slight connection to a politician standing for president in a democratic country – even if that connection is minimal – is important even if there is a long lapse of time between his/her Neo-Nazi past and the election.

11. Additionally, I cannot follow the majority as regards the scant importance which it attached to the veracity of the facts, concentrating much more on the fact that the news was not complete. For me, on the contrary, the veracity of the facts is crucial. The omission of some aspects does not undermine such veracity.

12. To conclude, my divergencies with the majority have led me to conclude that there was a violation of Article 10 of the Convention.