JOINT PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGES LEMMENS, SERGHIDES AND ELÓSEGUI

1. We have voted with the majority to find a violation of Articles 6 § 1 and 8 of the Convention (operative points 3 and 4), but to our regret found ourselves unable to join the majority in finding no violation of Article 8 on some specific issues (operative point 5).

2. In our opinion, the Court should make no distinction in its conclusions between the various issues that are to be examined under Article 8. The applicant complains about a single failure by the respondent State, namely the failure to protect her Article 8 rights against a single interference committed by certain private entities. That interference occurred through the broadcasting of the television programme Chelovek I Zakon by Channel One on 10 September 2009.

The question put before the Court is whether the domestic courts struck a fair balance between the applicant’s right to respect for her private life and the freedom of expression of the defendants in the domestic proceedings (see paragraph 73 of the judgment, and the judgments referred to therein). The domestic courts considered that the defendants had not violated the applicant’s rights by disclosing certain information about her and making certain statements about her. If the Court finds that the domestic courts were entitled to reach that conclusion in respect of certain issues, but not in respect of other issues, then this means that there has been a violation of Article 8, period.

The Court should not, in our opinion, grant a certificate of compatibility with Article 8 by implying that it was legitimate for the domestic courts to hold that certain items could be shown in the impugned programme. The domestic courts were required to assess the programme as a whole. Logically, the Court should also review their decisions as a whole. Indeed, the answer to the question whether the domestic courts struck a fair balance can only be answered with respect to their decisions as a whole. Following Aristotle’s principle of non-contradiction, that right cannot be simultaneously effective and not effective. Similarly, Article 8 cannot be simultaneously violated and not violated.

3. The applicant complains about the dissemination of her home address, her income as declared to the authorities, her taxpayer identification number and images of the interior of her country house. She also complains about the statements made, explicitly or implicitly, about her income and expenditure.

We do not believe it is necessary to assess whether or not the domestic courts were entitled to consider that it was lawful for the defendants to broadcast information about the applicant’s declared income and make statements about her income and expenditure. [1] It is sufficient to note that the domestic courts failed to protect the applicant’s private life, at least with respect to the dissemination of her private address, her taxpayer identification number and the images of the interior of her country house. As explained in the present judgment, the domestic courts’ reasoning with respect to these issues falls far short of the standards required by the Convention. We would have preferred that much more emphasis be given in the Court’s judgment to two particularly troublesome aspects of the case: the fact that the domestic courts simply accepted, without any need for a balancing of interests, that a journalist could disseminate information that had been received from an investigator (compare paragraph 88 of the judgment), and the fact that they seriously underestimated the intrusiveness involved in broadcasting pictures of the interior of someone’s house (compare paragraph 103 of the judgment).

Moreover, in the circumstances of this case these failures have not been compensated by a legitimate reason for the defendants to show another item (the applicant’s declared income) or to make a statement about the applicant’s income and expenditure.

4. Our conclusion is therefore that there has been a breach of Article 8. We do not think that it is necessary or appropriate to specify, either in the conclusion of the Court’s analysis (see paragraph 104 (b) of the judgment) or in the relevant operative point (operative point 4), the grounds upon which this conclusion is reached. And we respectfully disagree, as already explained above, with the additional conclusion that Article 8 has not been violated on account of certain (other) items presented in the television programme (see paragraph 104 (a) and operative point 5).

[1] We will therefore not comment on how the majority apply the relevant general principles (see paragraphs 79-103 of the judgment). While we agree with most of that analysis, we consider that it would have been sufficient to concentrate on the deficiencies in the courts’ reasoning. It seems to us that the majority are too eager to indicate that journalists can legitimately disclose information relating to corruption by public officials, including information relating to their family members. As a matter of principle, this is correct. However, the issue in the present case is whether or not the journalists went too far in disclosing elements relating to the applicant’s private life, and whether the domestic courts paid sufficient attention to her rights.