DISSENTING OPINION OF JUDGE KŪRIS, JOINED BY JUDGE ILIEVSKI

1. The present judgment is evidence not only, as the saying goes, that hard cases make bad law, but that bad law may be made in even seemingly easy cases. For what, it seems, could be easier than to state what has until now been considered obvious – that no one should be accused of having committed a criminal activity where there is no conviction by a court – especially where there is a court judgment wherein it is explicitly spelled out (in whatever words) that, on the basis of the case as examined by the court, no inferences may be drawn that the individual in question has participated in a criminal activity.

However, this judgment goes in the opposite direction: such an accusation is apparently possible, and is justified under the Convention.

To wit, this judgment sets a very low standard for the protection of personality rights. In fact, it declines to protect these rights, as it fails to strike a balance between the rights enshrined in Article 8 of the Convention as juxtaposed with those enshrined in Article 10.

In my opinion, this has occurred because many important factual circumstances of the case have been overlooked or misinterpreted.

I

2. The applicant, Mr Stjepan Mesić, is a former President of Croatia. It would therefore be reasonable to expect that, compared with most people, he has much greater possibilities to defend himself in the court of public opinion, which, as needs no reminder, is not bound by evidentiary rules and procedural constraints. For the purposes of this opinion, however, the applicant’s former or current status is completely irrelevant, because my objections to the majority’s findings as set out below concern not only and not so much the instant applicant’s situation but rather various hypothetical situations, which cannot currently be foreseen but in which other persons may be subject to trial, not by court, but by media . If the approach taken in this judgment is followed in these cases, such trial by media may be found to be acceptable by domestic courts and, moreover, this finding, if challenged, may subsequently be endorsed by the European Court of Human Rights. For this is exactly what has happened in the instant case.

Without speculating as to whether or not there was anything blameworthy or otherwise objectionable in the applicant’s conduct when the impugned arms procurement for military vehicles took place, I shall focus on what is, in my opinion, the main fault in this judgment, namely, the fact that the majority are ambiguous about the applicant’s conviction by media as concerns his non ‑ conviction by any court in either Croatia or Finland and even with regard to the absence of criminal charges and his explicit exoneration by the Finnish court.

In my firm belief, no one, whether a public figure or an ordinary person, a “man on the street”, so to speak, can be left to the mercy of trial (let alone conviction) by media. No one. Never ever. Under no circumstances. And if that happens (which indeed happens rather too often), the courts – and certainly the Strasbourg Court – must not indulge such encroachments on personality rights.

3. It should be stated from the outset that, as a matter of principle, when exercising their professional and civic duty to inform the public, the media should not be prevented from reporting on criminal activities (blatant or alleged), not only once these have been established in court, but also before that point and thus while they are still subject to requalification or even disavowal. The Court’s case-law on the media as a “public watchdog” is so rich and well-known that there is no need to reiterate it here. Censorship on media reporting of investigations into criminal activities prior to their completion would run counter not only to the media’s rights, but also to the very core of freedom of expression and to the public interest; any limitations on media reporting of an ongoing criminal investigation can be justified only by especially weighty reasons (related, for instance, to the need to protect the secrecy of the investigation).

However, the instant case does not concern any ongoing investigation. It concerns an investigation which, when the impugned article was published, had been already completed and with regard to which a court judgment had been adopted, even if it had not yet become final. Moreover, no limitations had been placed on media reporting about the allegedly improper arms procurement for military vehicles; on the contrary, the author of the impugned article had obtained the relevant information directly from senior prosecutorial authorities in Finland and was therefore fully entitled to share that information with the public.

4. In cases involving reporting on alleged criminal activities which have not been confirmed by a final court judgment, what makes the difference is whether journalists exercise the requisite discretion and circumspection in their reporting, that is, whether they avoid using wording which creates an impression that the guilt of the person in question has been already established beyond doubt, even if that person’s case has not yet been decided by a court. It is true that greater leniency is normally permitted in assessing media statements than statements by the authorities. All the same, that greater leniency must not be understood as being limitless. The prudence and fairness which dictate the media’s relative self-restraint are not only ethical precepts governing the profession of journalist, but also a legal obligation under the Convention. This obligation stems from, inter alia , Article 6 § 2 (which consolidates the presumption of innocence), Article 8 (which affirms the right to respect for private and family life), and Article 10 (which, while enshrining freedom of expression, explicitly mentions the “duties and responsibilities” entailed in the exercise of the rights comprising that freedom). In the Court’s case-law, the “duties and responsibilities” entailed in the exercise of freedom of expression have been dubbed “responsible journalism”. The concept of responsible journalism, like many other jurisprudential concepts, is developed on a case-by-case basis.

The further the tenets of responsible journalism are departed from, the closer we are to trial by media and to neglect of personality rights. There is no need to perorate on the fact that trial by media, where not preceded by conviction in a courtroom, is the exact opposite of responsible journalism and, per extensionem , of the rule of law. No court can ever turn a blind eye to it, let alone attempt to justify it.

5. It is striking that the notion of responsible journalism does not feature in the majority’s reasoning, as though it had never been coined at all. This is surprising in itself, because, as I believe, there can hardly be too much emphasis placed on this underlying legal, professional and ethical principle in a case like this one, especially in the era of fake news. This omission on the majority’s part, or, rather, their reluctance to use, even if à propos , the notion of responsible journalism, is even more bewildering in view of the fact that the respondent Government themselves referred in their submissions to the “tenets of responsible journalism” although they limited themselves to citing a Court judgment which, despite its many merits, would not appear to be the most outstanding in this regard, namely, Narodni list v. Croatia (no. 2782/12, § 58, 8 November 2018; see paragraph 59 of the present judgment).

Still, even the Narodni list judgment outlines the crux of the principle of responsible journalism. Namely, the relevant paragraph states that journalists must “act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism” (ibid, § 58). Thus, some key terms are there, in particular “good faith” and “accurate and reliable information”. On closer inspection, this paragraph of Narodni list refers to paragraph 72 of Bédat v. Switzerland ([GC] no. 56925/08, 29 March 2016), in which, remarkably, responsible journalism is not actually mentioned. Responsible journalism is indeed mentioned in Bédat , albeit not in paragraph 72 but in paragraph 50, which states not only that journalists must “act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism”, but also that the “concept of responsible journalism is not confined to the contents of information which is collected and/or disseminated by journalistic means” but “also embraces the lawfulness of the conduct of a journalist”; it also states that the “fact that a journalist has breached the law is a relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly”. The latter statement has been transposed from Pentikäinen v. Finland ([GC], no. 11882/10, § 90, ECHR 2015), duly referred to in paragraph 50 of Bédat . Turning to the Pentikäinen judgment, its paragraph 90 refers to several earlier judgments by the Court, which were available in 2015 and in which various aspects of the concept of responsible journalism had been already developed.

The development of the concept of responsible journalism did not stop with Pentikäinen , Bédat or Narodni list . A very recent example would be NIT S.R.L. v. the Republic of Moldova ([GC] no. 28470/12, 5 April 2022), in which the Court, citing its earlier case-law (some of it from the 1990s), reiterated its principled stance that the “protection of the right of journalists to impart information on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide ‘reliable and precise’ information in accordance with the ethics of journalism ..., or in other words, in accordance with the tenets of responsible journalism” (§ 180). In view of this steady trend, it was hardly to be expected that the principle of responsible journalism could be so drastically departed from, in fact thwarted in the instant case. Alas, the present judgment runs counter to the Court’s case-law on the matter and effectively reverses the gradual “unwrapping” of the manifold facets of responsible journalism.

6. The facet of responsible journalism which would be most relevant to the instant case is to be found in Kącki v. Poland (no. 10947/11, § 52, 4 July 2017), where it is postulated that “[r]esponsible journalism requires that the journalists check the information provided to the public to a reasonable extent”. There, “standards of journalistic diligence” are also underlined.

Although the present judgment does not cite Kącki , it nevertheless contains a passage where this principled position is mirrored, at least to a certain extent. Namely, paragraph 69 reiterates (with references to the Court’s established case-law) that “distorting the truth, in bad faith, can sometimes overstep the boundaries of acceptable criticism”, because a “correct statement can be qualified by additional remarks, by value judgments, by suppositions or even insinuations, which are liable to create a false image in the public mind”, therefore, the “task of imparting information necessarily includes duties and responsibilities, as well as limits which the press must impose on itself spontaneously”, especially “where a media report attributes very serious actions to named persons, as such ‘allegations’ comprise the risk of exposing the latter to public contempt”. Regrettably, this important elucidation is only mentioned in the “General principles” section and then completely neglected in the subsequent section, in which these general principles are – or, rather, should be – be applied.

Indeed, hardly anyone would argue that it is not coincidental that Article 10, which enshrines freedom of expression – against which personality rights, including the right to privacy, have to be balanced – is the only article of the Convention which explicitly mentions “duties and responsibilities”.

7. It was therefore only natural to expect that, having reiterated the Court’s principled stance on responsible journalism (even without using this term), the majority would examine and assess whether the author of the article complained of by the applicant had not “qualified” what may have been a “correct statement” by his own “additional remarks”, “value judgments”, “suppositions” or “insinuations” , which would be “liable to create a false image in the public mind”. If such “qualification“ was present, this would mean that the impugned article was a manifestation of journalism which was anything but responsible.

8. In Kącki , the Court found a violation of Article 10 in respect of the journalist, who had been found criminally responsible at domestic level for the defamation of a politician. Among several points on which a violation of Article 10 was found was the fact that the journalist had not published his own statements, but those made by a third person in an interview; in addition, the text of the interview had been sent to the politician in question in advance to ascertain whether that third person’s statements had been accurately cited and, possibly, to make corrections, but the text had been returned to the journalist without any comments or corrections. In these circumstances the Court held that a journalist could not always be reasonably expected to check all the information provided in an interview, and that there was “no reason to doubt the good faith of the journalist in the instant case”.

9. The “plot” of the present case is entirely different from that of Kącki . Some of the impugned statements were the author’s own statements, and where they reproduced statements from the Finnish Prosecutor General, the author “qualified” them with his own remarks and judgments. Also, although at some point the author did contact the applicant, it appears that he would not consider it problematic if the person concerned was not contacted at all (see paragraph 23, on the fact that the author of the article did not initially remember whether “they”, whoever the plural might include, had contacted the applicant). I surmise that for an impartial reader it would not be easy to shake off the impression that the contact with the applicant prior to publication of the article had been a mere formality or (I do not speculate which of the two would be worse) that it was intended only to obtain a quotation which, irrespective of what the applicant would say on the matter, could be dismissed as “pointless” (see paragraph 11, citing the impugned article, in which the word “pointless” is used this dismissive manner).

10. The Government claimed that the author of the article had obtained the information from several previously published articles and that he had verified it in a telephone interview with the Finnish Prosecutor General. There is no doubt about this point. Indeed, it was the Finnish Prosecutor General from whom the author obtained the indictment in which the applicant was mentioned. Moreover, according to the Government, the author had asked the applicant for comment and had “published his reply” (see paragraph 59). The Government did not comment on the fact that the “publication of the reply” had been accompanied by the dismissive word “pointless”, or the fact that the news portal had rejected the applicant’s request for the correction of three statements (see paragraph 14).

However, what is central in this case is not wherefrom the author of the article had obtained the information in question, but what he made of that information for the purposes of his article and how he presented it to the public.

11. Whereas in Kącki the domestic (Polish) court which convicted the journalist held that “in the light of the journalist’s right to publish critical comments an individual’s right to legal protection of good name and reputation should also be taken into account”, notwithstanding the fact that the impugned statement had not been that of the journalist himself but of a third person whom the journalist had interviewed, and the fact that the politician in question had been given a chance to rebut the statements in the forthcoming publication but had not seized it, in the instant case the impugned statements were the author’s own words or they served as a basis for the author’s own remarks and judgments, and the author attached virtually no importance whatsoever to anything that the applicant would say regarding the accusations against him.

That notwithstanding, the domestic courts assessed the impugned article as one which had been based on “sufficiently” or “previously” verified information and found that its author had acted in good faith (see paragraphs 25 and 31). In corroborating the stance of the domestic courts, the Government also maintained that they “had held that the factual statements in the impugned article had been sufficiently verified and published in good faith” (ibid.).

The majority appear to be of the same opinion.

I am not.

II

12. Before turning to my disagreement with the majority’s assessment of the merits of the case, I must devote a few paragraphs to those points on which I agree with them. As will be seen, on certain points I do not agree one hundred per cent, so I rather should say that I concede.

13. The majority have upheld the applicant’s claim that the impugned statements could seriously tarnish his reputation and discredit him in the eyes of the public. At the same time, they note that the domestic courts “had regard” to the criteria laid down in the Court’s case‑law for balancing freedom of expression with the applicant’s rights under Article 8 of the Convention, such as whether the article in question had contributed to a debate on a matter of public interest and how well known the applicant was. In the Government’s argument, the domestic courts had assessed the method of obtaining the information and its veracity (see paragraphs 71 and 72 of the judgment).

Very good. But here’s the rub. The majority is circumspect enough to use the words “had regard”, not “had due regard”. However, regard which is not due is (please forgive me for this sounding like the infamous pejorative employed in American partisan debates) nothing but RINO, that is, “regard in name only”. In fact, due regard was not had to the above-mentioned principles as underlined in Kącki .

14. Another point where I do not depart in essence from the majority’s views is that the impugned article was aimed at prompting further investigation in Croatia into possible corruption on the part of the former head of State in the procurement process for military vehicles (see paragraph 73). This we do not know for sure (because, at least in theory, there might also have been other motives), but the benefit of the doubt lies with the journalist (it appears that the view that such an investigation would be desirable was shared by Transparency International Croatia; see paragraphs 8 and 73). If the aim of the journalist was such as the majority hold, it was absolutely legitimate; there is no doubt that the publication, as such, concerned a matter of public interest (see paragraph 74).

15. It is also true that the impugned statements did not target the applicant’s private life but referred to the exercise of his official duties, and that the applicant, who had been the Head of State, “la[id] himself open to close scrutiny of his every word and deed by both journalists and the public at large” and had to “display a greater degree of tolerance” (see paragraph 75).

16. Yet another point on which I agree with the majority is that “to be properly understood, the domestic courts’ findings must be seen in the light of the fact that they examined the article as a whole rather than reviewing the three impugned statements in isolation” (see paragraph 76). In other words, what may matter is not only the text but also the context – textual analysis must be supplemented by contextual analysis , which in certain instances is indispensable. Here, the majority refers to the recent judgment in Marcinkevičius v. Lithuania (no. 24919/20, § 85, 15 November 2022), predicated on this methodological stance, which the majority call “justified” (see paragraph 76). In that case the Court, relying on Morice v. France , [GC] no. 29369/10, § 156, 23 April 2015) reiterated the importance of “reading each statement in context”. The applicant in Marcinkevičius was not a journalist but a person who had expressed his views via a media outlet. He complained before the Court under Article 10, alleging a violation of his freedom of expression. The Court undertook to balance the rights under Articles 8 and 10. As a result, it did not uphold the domestic (Lithuanian) courts’ findings that the impugned statements – of which, as in the instant case, there were three – were all statements of fact which were not based on facts, in other words, they were all “not true”. To wit, the Court, having performed contextual analysis, held that one statement had been a value judgment, which was defendable under the Convention, and found a violation of Article 10 on that account.

Here I have to make a broader comment, because while I do not object to the invocation of contextual analysis as such, I am not satisfied with how it has been relied on in the instant case. I shall come back to this issue in due course, so what is presented here are only some general considerations on the methodology itself.

The distinction between statements of fact and value judgments is often palpable, evident and clear-cut. But at times this distinction does not lend itself to easy definition (regarding the difficulties of drawing this distinction, see, among many authorities, Kwiecień v. Poland , no. 51744/99, 9 January 2007; Morice v. France , cited above, and the cases cited in its § 126; and ATV Zrt v. Hungary , no. 61178/14, 28 April 2020). In Marcinkevičius the Court not only (once again) drew the said distinction, but also examined whether the value judgment in question was defendable (or justifiable) under the Convention. It was for the purpose of ascertaining that defendability that the Court invoked the contextual analysis. Indeed, in the Court’s case-law the “reading [of] each statement in context” is invoked for no other purpose than to ascertain whether an impugned statement, which is not a statement of fact but a value judgment , has a sufficient factual basis . For if it is not a value judgment but a statement of fact, there is no sense in speaking of any “sufficient factual basis”, because – in order to be defendable – a statement of fact simply has to be true . Plainly and simply: a statement of fact is either true or it is not; it cannot, by definition, be “sufficiently true”, whereas a value judgment can be – that is, if it is not completely true, it may still be “not made ‑ up ” and found to rely on some set of facts, even if these are not adequately perceived and interpreted, and in this sense it can have a “sufficient factual basis”. The Court has held on numerous occasions that, while the existence of facts can be demonstrated, value judgments are not susceptible of proof (see, among many authorities, McVicar v. the United Kingdom , no. 46311/99, § 83, 7 May 2002, and Lingens v. Austria [Plenary] no. 981582, § 46, 8 July 1986, Series A no. 103).

Therefore, in order to reach a conclusion as regards the defendability (justifiability) under the Convention of a value judgment, the Court must examine and assess a specific statement in the context of the article or other impugned text “as a whole rather than reviewing [it] in isolation”. But contextual analysis, if it is invoked, does not preclude the examination of a concrete statement for what it represents in and of itself, and does not allow for textual examination to be replaced by contextual examination of the given statement. The text “as a whole” provides the context in which a specific statement has been placed, but the defendability of the entire text on the basis of its examination “as a whole” does not allow for that statement to be worded in any terms. The methodological stance discussed here does not imply that, once a “justifying” context has been established, the Court may leave aside the examination of the statement in question itself. The examination of the text “as a whole” is not intended to overshadow, let alone dispense with, the assessment of concrete impugned statement. It is an additional tool for reaching a conclusion regarding a specific statement. It is one of the keys but not a master-key.

If context matters so much (an approach with which I agree in principle), then the citation from Marcinkevičius must also be seen in its context. That context is that, ultimately, the Court, having examined the three impugned statements “in the light” of the interview “as a whole”, found that one of these statements was a value judgment which had a sufficient factual basis, even if it may not have represented a proven fact.

I will spare myself the time- and effort-consuming task of citing the Court’s abundant case-law pointing in precisely this direction. For that, one can consult the Guide on Article 10 of the European Convention on Human Rights . All of the relevant cases discussed therein where the “sufficient legal basis” criterion was invoked by the Court for ascertaining whether certain statements had violated an individual’s personality rights, concerned value judgments exclusively (this expression does not appear in the Guide on Article 8 of the European Convention on Human Rights ).

17. The majority conclude that the “article as a whole had a sufficient factual basis, as the domestic courts established” (see paragraph 76 of the present judgment). But they do not stop there, for it would be a fallacious deduction to conclude that, once the “article as a whole” has met the “sufficient factual basis” criterion, the same criterion has been met by every single statement. It is thus only logical that the majority have attempted to examine, at least to a certain extent, not only the “article as a whole” (which “had a sufficient factual basis”), but also the three impugned statements – each on its own merits.

As we shall see, “merit”, in the common sense of the word, is indeed something which one of these statements contains little of.

18. I have no qualms in subscribing to the assessment that the first two of the impugned statements, like the article “as a whole”, did indeed have a sufficient factual basis, because they did not imply that the applicant was involved in criminal activity, but merely informed the public that his name had been mentioned in relation to criminal activity in the indictment issued by the Finnish prosecutors against other persons (see paragraphs 77 and 78).

But beyond this point, that is, regarding the assessment of the third statement, I respectfully disagree.

III

19. It is high time to move from the context to the text. I shall return to the context of the impugned third statement in due course.

But now let us remind ourselves of the wording of the third impugned statement, which has been so easily vindicated by the majority in a single paragraph, that is, paragraph 79. I believe that this statement deserves more.

20. The statement in question was worded in the following way: “the joint investigation undoubtedly established that Mesić participated in criminal activities” (see paragraphs 11 and 12; emphasis added).

How blunt. Every word – like a lash, a stripe, a dagger, a shot, a bullet, a bomb. The joint investigation. Undoubtedly. Established. That. Mesić. Participated. In criminal activities.

Let no one be lulled by the verb “participated”. It is a euphemism, a thinly disguised veneer for the word “committed”. To say that a person “participated in criminal activities” means nothing other than to state that he or she “committed a criminal offence”, and maybe more than one.

It is noteworthy that, as regards the third statement, the majority acknowledge that the “author of the article should have chosen his words more carefully” (see paragraph 79). This bitter characterization suggests nothing else but than that there must be very weighty reasons which would allow the given statement to be somehow exonerated under the Convention.

21. And yet the author of the impugned statement had maintained in the domestic court proceedings that “he had not been accusing the applicant of a criminal offence, but had merely reported that in the Finnish indictment he had been suspected of such an offence” (see paragraph 23).

Such ratiocinations as this should be dismissed in the same way as, for example, flat-earthers’ “theories”. A judicious judicial body should not state that “it cannot be said that, having regard to the article as a whole and [the last] two paragraphs in particular, [the author] unambiguously stated that the applicant participated in criminal activities”, or that “it would indeed be difficult to argue that, after reading the two paragraphs in question, any reader would still be under the impression that the applicant was ‘ undoubtedly ’ engaged in such activities” (see paragraph 79; emphasis added).

Where is the “difficulty” with which “any reader” would be faced?

I see no “difficulty” whatsoever. The author writes “undoubtedly”, the majority “unambiguously”. But “undoubtedly” means “unambiguously”, doesn’t it? Nothing can be asserted “undoubtedly” and, at the same time, not “unambiguously”, because both these words, at least when used to state that someone has committed a certain action, signify the same thing – that the action in question, “sure as can be”, was committed by that person. Dictionaries suggest a broad spectrum of synonyms for these words: “assuredly”, “beyond question”, “categorically”, “conclusively”, “decidedly”, “definitely”, “exactly”, “for sure”, “indeed”, “of course”, “on the nose”, “positively”, “precisely”, “really”, “sure as hell”, “surely”, “the very thing”, “truly”, “unconditionally”, “unmistakably”, “unquestionably”, and so on.

22. To conclude, the third statement is an accusation , plain and simple. It is a statement of fact – and it was deliberately couched in terms that defy its interpretation as a value judgment.

23. It remains to be ascertained whether there were any legally established facts on which the impugned third statement was based.

IV

24. The domestic courts considered that the article in question had been based on “sufficiently” or “previously” verified information and that the author had acted in good faith (see paragraphs 25 and 31).

25. The majority appear to be convinced by this argument. They state that “the press release of 28 June 2013 and the Kanta-Häme District Court’s judgment did indeed indicate that the article as a whole had a sufficient factual basis, as the domestic courts established” (see paragraph 76).

I take this conclusion with a considerable pinch of salt. The wording of the said press release was quite circumspect. It did not explicitly state that the applicant was suspected of taking a bribe, only that the “Finnish defendants [were] suspected to have participated in promising or giving bribes through intermediaries in exchange for actions [by] the President of the Republic of Croatia and [a] general manager of a Croatian State-owned company, who were considered to have leverage in the procurement procedure [for] the vehicles” (see paragraph 4). In addition, contrary to the assertion that “[i]f someone gave a bribe, it is clear that someone on the other side received it” (see paragraph 11), and that that “someone” could be no one other than the applicant, it is quite possible that even if the money did change hands, the hands “on the other side” were not necessarily the applicant’s. For have we not heard of cases where the money stays with the intermediary, although the bribe-giver is confident that it will go all the way to the intended recipient?

But let it ride. I turn to other points.

26. As already shown, it does not stem from the assessment that the article “as a whole” had a “sufficient factual basis” that each and every impugned statement had such a basis. The vindication of the third statement begs the question: what could its factual basis be?

27. It is undisputed that the “article as a whole” had a “sufficient factual basis” for asserting that an indictment had been issued in Finland, in which the applicant was mentioned, and that this mention had not been favourable, to say the least. To the extent that the author (or other media outlets) informed the public of this fact, this may be assessed as being beyond reproach under the Convention. The majority, basing themselves on the contextual analysis, conclude that the first two impugned statements meet this threshold, and I reiterate that I agree with this conclusion.

28. But was there a “sufficient factual basis” which would allow the author to announce urbi et orbi that “it was undoubtedly established that Mesić ... participated in criminal activities”?

The answer is an emphatic no .

There is no bridge between the “sufficient” veracity of a reference to an individual in the indictment, let alone an indictment issued against other persons, and the veracity of the statement that the given individual “participated in criminal activities”. This is a non sequitur. One may be referred to as a person who “participated in criminal activities” only when there is a court judgment by which that person is convicted. Incidentally, this is known as the presumption of innocence . As there exists abundant case-law by the Court on this matter, it would be too tedious to explore this topic any further. Only one remark: the majority rightly state that “under the Court’s case-law the degree of precision for establishing the well-foundedness of a criminal charge by a competent court can hardly be compared to that which ought to be observed by journalists when expressing opinions on matters of public concern” (see paragraph 80). This does not mean that the said “degree of precision”, which “ought to be observed by journalists” is zero . If a journalist makes a statement of fact, there must still be some factual basis for it.

29. If the third statement could not be based on the indictment, could it be based on the judgment of the first-instance court, namely the Kanta-Häme District Court, adopted on the eve of the article’s publication? This is not an irrelevant question, because the author was clearly aware that the judgment had been adopted (even if it is not clear to what extent he had apprised himself of its content). I shall not speculate on the relationship between the times of the judgment’s adoption and the article’s publication. I merely note that the latter was published immediately after the Kanta-Häme court had delivered its judgment. Those convicted by the first-instance court were subsequently acquitted on appeal, but these acquittals occurred long after the publication and cannot be taken into consideration for the purpose of assessing whether the requisite basis existed at the time of publication. In this regard, the majority rightly note that the “subsequent acquittal ... is of no relevance because it occurred after the publication of the impugned article” (see paragraph 78). The judgment of the first-instance court is a different matter, because the author was aware of it (even if not in full detail). This is clear from his observation that certain persons “have just been convicted of giving bribes” and that “[i]t was proven in court that one and half million euros in bribes” was intended for certain intermediaries, except that (as one would surmise, regrettably) he and some unnamed other person (he referred to himself and that other person or persons cumulatively as “we”) were unable to establish an actual link between the bribes and the applicant (see paragraph 11). At the same time, the author maintained that his awareness of the Kanta-Häme court’s judgment was irrelevant, because the “judgment had not been adopted at the time he had written the article” and it “had not been important for him, as he had been writing about the indictment” (see paragraph 24).

I shall deal with these arguments later. What is important in ascertaining whether the third statement could be based on the Kanta-Häme court’s judgment is that, when the applicant asked the news portal on which the article had been published to publish a correction of the three impugned statements, the author maintained that the “article had not contradicted the finding in the Finnish judgment that [two persons] had not been found guilty of promising or giving bribes to the applicant”, because in any case “they had given the bribes to the two ... intermediaries, whose task had been to forward that money to the applicant and [another person]”, and “those intermediaries had then reported back that the applicant’s and [that other person’s] support had been secured” (see paragraph 16).

The latter explanation does not withstand any scrutiny.

30. Firstly, not only had the applicant not been convicted in the case decided by the Kanta-Häme court, but that court attempted to dispel any suspicion that he might have “participated in criminal activities”. It stated that “the mere fact that Mesić was considered an important lobbying target does not in fact prove that he was promised or given a bribe”. It also stated that “[a]lthough Mesić’s name appears in a number of messages ... the bribe given or promised to Mesić was not presented with enough evidence, from the point of view of the accusation” (see paragraph 8).

One would reasonably expect that a professional journalist who writes about matters legal knows that whatever is in the indictment may not only be confirmed but may also be dismissed by a court. This is letter A in the ABC for those writing on criminal-law matters. Once there has been a conviction by a court judgment, the indictment, which was a “prelude” to that conviction, loses any force that it might have had as regards the alleged guilt of the persons mentioned in it. What matters is the court’s judgment.

31. Secondly, the Kanta-Häme court’s judgment was not final (incidentally, it never became final).

One would reasonably expect that a professional journalist who writes about matters legal knows that first-instance court judgments, at least in criminal cases, do not become final immediately, on the day of adoption. This is letter B in the ABC for journalists writing on law-related matters.

32. Thirdly, the judgment was delivered by a court of first instance. A year later the appellate court acquitted those who had been convicted by the first-instance court. The prosecution did not appeal against that judgment. The appellate court did not mention the applicant in its judgment (see paragraph 7).

Although, as mentioned, that subsequent acquittal may not be taken into consideration in assessing whether the requisite factual basis existed at the time of publication, the possibility of acquittal on appeal may and must be taken into consideration. One would reasonably expect that a professional journalist who writes about matters legal knows that there is always a possibility of appeal against a first-instance judgment in a criminal case. This is why many judgments by first-instance courts do not become final, at least in their initial form. This is letter C in the ABC for journalists writing on law.

33. If a journalist is aware of a court judgment that may disprove his opinion that someone “participated in criminal activities”, it is highly unprofessional and irresponsible to write about that judgment as though it confirmed his opinion. It is no less unprofessional and irresponsible to assert that the judgment is “not important” for the purposes of writing on these matters.

A couple of rhetorical questions. First: how, if at all, does the reliance on the indictment, rather than the court judgment, and the obstinate defiance of the latter’s findings correspond to paragraph 17 of the Code of Ethics of Croatian Journalists (as applicable at the material time), under which, when reporting about judicial proceedings, inter alia , the presumption of innocence of the accused should be respected (see paragraph 38)? Second: how does it meet the tenets of responsible journalism? These questions could have been answered very easily in this judgment, had the principles underlined in Kącki (cited above) not been passed over in silence. The same goes for such yardsticks as “distortion of the truth”, “additional remarks”, “suppositions”, “insinuations” or a “false image in the public mind”, rightly mentioned by the majority in the “general principles” section but then not applied.

34. To sum up, nothing in the Kanta-Häme court’s judgment could be understood as facts which would support the third impugned statement, which was the statement of fact.

35. Here comes the most interesting part.

As already explained, in the Court’s case-law the contextual analysis of a statement, where it is examined in the light of the text “as a whole” rather than “in isolation”, is a tool for vindicating statements which on the surface may appear to be statements of fact, but which prove in a specific context to be value judgments. Thus, in Morice (cited above) the Court “[took] the view that, in the circumstances of the case, the impugned statements were more value judgments than pure statements of fact, in view of the general tone of the remarks and the context in which they were made, as they reflected mainly an overall assessment of the conduct of the investigating judges in the course of the investigation”. Having established that it considered that “[i]t thus [remained] to be examined whether the ‘factual basis’ for those value judgments was sufficient” (§§ 156 and 157) and having performed a most thorough contextual analysis, the Court found a violation of Article 10. In a similar vein, in Marcinkevičius (cited above), the Court stated that it “acknowledged that, when read on its own and understood in its literal sense, such phrasing would give a strong indication of the impugned statement amounting to a statement of fact”, but after a thorough contextual analysis concluded that “the use of the word ‘obvious’, when read together with the applicant’s other statements and the article as a whole, was not sufficient to demonstrate that the sentence in question amounted to a statement of fact” ( Marcinkevičius , cited above, § 85). On that basis a violation of Article 10 was found.

What can one make of this? In order to proceed with contextual analysis the Court first must establish that the statement in question is a not a statement of fact but a value judgment . This is a precondition . For if the statement in question is not a value judgment, but rather a statement of fact, it must be based on established facts and not on a much more vague “sufficient factual basis”, the criterion reserved for the assessment of value judgments.

36. The catch is that in the instant case the majority have not undertaken the assessment of whether the third impugned statement is a statement of fact or a value judgment . It has already been shown that this statement is nothing other than a statement of fact. But in the present judgment this most important issue has been completely left aside . The expression “statement of fact” does not appear once in the entire judgment. And the expression “value judgment” appears only once – in paragraph 67, in the “General principles” section, but it is not mentioned further , where the general principles are – or, rather, should be – applied.

This is telling in itself.

V

37. With regard to the statement in question, while, as already mentioned, the majority acknowledge that the author “should have chosen his words more carefully”, they hold at the same time that the “rather categorical character of that statement is significantly weakened, if not even contradicted, by the last two paragraphs in the impugned article” (see paragraph 79).

This reliance on the contextual criterion in order to vindicate a statement of fact is nothing short of an attempt to introduce a fundamentally new methodological approach.

38. But let us suppose that they are right: in other words, that, notwithstanding the Court’s well-established case-law, it may still be permissible in certain circumstances to conclude that a statement of fact, in order to comply with the Convention, may be based upon a “sufficient factual basis”, a criterion so far applicable only to value judgments? After all, the Guide on Article 10 , as indicated in the disclaimer on its front page, is “[p]repared by the Registry” and “does not bind the Court”. Be that as it may, the Court’s case-law is an evolving body of jurisprudence, so why not initiate an interesting evolution in the present case? Leaving aside the fact that any “evolution” undertaken in this case would require it to be examined by the Grand Chamber and not by a Chamber, I dare to maintain that the departure from the Court’s case-law embarked on in this case could not be undertaken in these specific circumstances.

This brings us back to examination of the presumed contextual support – or rather, as we shall see, the lack thereof – for the statement in question.

39. The majority find justification for the impugned third statement in the last two paragraphs of the article. There, the author expressed his opinion that, with regard to the applicant, the Kanta-Häme court had not proven that the applicant was the person who had received the bribe, but established that the intermediary had met the applicant, after which the former had informed his counterparts that the latter’s support had been secured. The author also stated that the Finnish court had not even tried to prove that the applicant was guilty of taking a bribe, but this did not mean that he was not guilty. In the author’s view, responsibility for proving such guilt lay with the Croatian judiciary, but they were not fulfilling this obligation. The author also predicted that the applicant would “continue to manipulate” by relying on the fact that he had not been accused of anything by anyone. Further citations follow below.

In the majority’s assessment, these considerations represent a context which vindicates the third impugned statement.

Do they?! Indeed?!

40. The majority’s interpretation of the last two paragraphs is that they help to avoid the impression that the impugned third statement meant that the applicant was “‘undoubtedly’ engaged in criminal activities”, because that statement, read in the context of these two paragraphs, only “referred to the reasons why the applicant was mentioned in the indictment” (see paragraph 71).

Did they?! Indeed?!

41. Contrary to the majority’s reading, these last two paragraphs of the article are not innocent at all .

42. Firstly, the author did not call on the Croatian authorities (judiciary) simply to investigate the suggestion that there had been something fishy about the procurement in question. He stated that Croatian judiciary were obliged to try to prove the applicant’s guilt . No less. For the author, there could be only one acceptable result of such an investigation. Secundum non datur. Go and do it, quickly. The author issued a command. He knew in advance what the right result should be. And he supplemented his command by the speculative prediction that, until the Croatian judiciary proved “that part of the indictment”, the applicant would “continue to manipulate ... by saying that no one [had] been accusing him of anything”.

43. Secondly, the reason why the Croatian judiciary were, in the author’s opinion, not fulfilling their “obligation” was that they were a “branch” of the “former Yugoslav secret service”. Any evidence for that assertion? Oh no, why bother with such trifles: the applicant knew it – and that had to be enough, dovoljno .

44. Thirdly, as the Croatian judiciary were not doing what they were obliged to do, it was not only Mr Mesić who ought to be put on trial, but also “those in the judiciary who [had] been protecting him ... for years.” If “any reader” read the article “as a whole”, he or she could not but notice that the author elsewhere asserted (in a statement no less categorical than the others) that the current and former Principal State Attorneys of Croatia were “systematically ignoring”, “not investigating the case”, “not lodging an indictment” against Mr Mesić and thereby were “committing a criminal offence and violating an international agreement”.

45. One would find more such statements in the truly magnificent last two paragraphs, as well as in the entire article. But even those cited here more than suffice to make an objective assessment about who, in this version of “responsible journalism”, has the final say on matters both factual and legal. To argue with such statements would amount to giving them an importance which they do not deserve. Although the author (like anyone who issues condemnations regardless of what has been established by the courts) is fully entitled to think of the Croatian judiciary in that way, the Court should not give credit to such an outlandish breed of conspiratorial generalisations. Not only do statements such as those cited above, so abundant in the last two paragraphs, not whitewash the impugned third statement, but they themselves would require a search for contextual justification (in the article or in the author’s other statements), and I am not convinced this would not be an impossible mission.

Take, for example, the categorical declaration that the Croatian judiciary is a “branch” of the “former Yugoslav secret service”. It is not “weakened” or “contradicted” but rather corroborated by the author’s statement that the fact that the applicant had not been indicted (in Croatia) “was not proof of [his] innocence, but only fuelled public suspicion that the prosecuting and judicial authorities were under political influence” (see paragraph 17). Likewise, the assertion that the applicant’s hypothetical denial of his “participation in criminal activities” (on the basis that “no one [had] been accusing him of anything”) would constitute “continued manipulation” on his part is not “weakened” or “contradicted” but rather strengthened by the assertion that the fact that two individuals “had not been found guilty of promising or giving bribes to the applicant... was irrelevant because they had given the bribes to the ... intermediaries” (see paragraph 16), in spite of the court’s unequivocal explanation that “the mere fact that Mesić was considered an important lobbying target does not in fact prove that he was promised or given a bribe”. Here the same logic is used as in the old joke about the mayor who bragged that his city had wireless phones a thousand years ago, providing as evidence the fact that archaeologists had not found any wires in that area.

46. More generally, the majority maintain that the impugned statements “can be seen in the context as describing the results of the investigation” and therefore “cannot be disassociated from the rest of the article, in particular the last two paragraphs, from which a careful reader may discern that the allegation in the indictment that the applicant had been a recipient of bribes was not established for lack of evidence” (see paragraph 76). This applies to the third statement as much as to the first two.

I, too, am a “reader”, but perhaps I have not been “careful” enough, for I (also) “discern” something else, not merely that the article “described the results of the investigation” and that “the allegation ... that the applicant was a recipient of bribes was not established for lack of evidence”.

47. For instance, I “discern” that, although the author was aware (even if not in full detail) of the judgment of the Kanta-Häme court, he chose to flout – or, rather, distort and misrepresent – it, because, firstly, the “judgment had not been adopted at the time he had written the article” and, secondly, it “had not been important for him, as he had been writing about the indictment”.

One could choose to comment on these two “iron arguments” (which would require a rich imagination to be seen as a demonstration of good-faith and responsible journalism) in the same way as Stephen King’s Poke (from The Stand ) used to comment on almost anything: “Do you believe that happy crappy?”.

But let us nevertheless look into them.

48. The first “iron argument” is unpretentiously false. The author wrote that some people had been convicted, and referred to the court’s judgment. Thus, his article was written or at least completed after he learned about the judgment. Consequently, the article was not about the indictment or at least not about the indictment alone. It did not merely “[describe] the results of the investigation” but falsely implied that what had been in the indictment had been confirmed by the court.

49. As regards the second “iron argument”, it also does not hold water. Just imagine a journalist who claims that he “had been writing about the indictment”, on the basis of which, in his own words, he had already “[drawn] a conclusion that [the applicant] had participated in criminal activities” (see paragraph 26). Then he learns that a court judgment has been adopted, by which that indictment could be either upheld or rejected (in full or in part). However, he decides that this judgment is “not important for him”, because he already has reached his own conclusion. This is as if a doctor is “not interested” in whether his preliminary diagnosis has been confirmed or refuted by lab tests and other medical research.

“Not important” – is this not the quintessence of irresponsible journalism ?

50. As a “reader” who has not been “careful” enough, I also “discern” that the majority’s finding, to the effect that the article did not claim that “the allegation ... that the applicant was a recipient of bribes was not established for lack of evidence”, requires clarification. The Kanta-Häme court’s judgment may indeed be read as positing a “lack of evidence”. But nowhere in the impugned article – either in the last two paragraphs, or elsewhere – was there even a hint dropped as to a “lack of evidence” in the legal sense , that is, a “lack” that would explain why the applicant was not found in the judgment to have been a bribe-taker. Instead, the author asserted that it would be “pointless” to consider the fact that “the Finns did not even accuse [the applicant]”, because “that [was] not their job” (see paragraph 11). While the Kanta-Häme court found that it was not “proven that [the applicant] was promised or given a bribe” (see paragraph 8), the “lack of evidence” dealt with in the article (including the last two paragraphs) was established not by that court but by the author of the article and whoever assisted him: he confessed that “they” had not traced the “flow of money” to anyone in Croatia, including the applicant (see paragraph 11). Thus, the “lack of evidence” about which the author wrote was not evidence in the legal sense, which the prosecution had failed to gather, but evidence in the non-legal sense, which the author and whoever assisted him had not gathered.

51. To sum up, the last two paragraphs do not, as the majority maintain, “weaken” (let alone “significantly”), or “contradict” the “rather categorical character of [the third] statement”. Quite the contrary, they support, corroborate and strengthen that statement. They are not mitigating but aggravating . The fundamentally new methodological approach introduced in this case is a non-starter.

VI

52. I am ready to accept the assessment of the Constitutional Court of Croatia, which dismissed the applicant’s constitutional complaint, to the effect that “the domestic courts had given sufficient reasons for their decisions”, which “were not arbitrary” (see paragraph 33). Had the applicant complained under Article 6 § 1, these arguments of “sufficient reasoning” and “not arbitrary” decisions might have allowed for a finding of no violation of that provision.

But the applicant complained under Article 8. Therefore, in view of the foregoing considerations and with all due respect, I am unable to accept the Constitutional Court’s finding that the “case did not disclose a breach of the applicant’s constitutional right to be presumed innocent” (ibid.).

Because it did .

53. I consider that the reasoning with regard to the third impugned statement – which is confined to one single, laconic paragraph 79 – ought to have been addressed differently. To cut a long story short (some would say that it is already too long, but gratuitously cropped reasoning of judgments tends to prolong dissents), below is my proposal, or synopsis, of an alternative reasoning on this issue. It ought to include the following elements:

(a) The parties disagreed as to whether the third statement was true and, if not, whether the author had acted in good faith and sufficiently verified the accuracy of this statement before publishing it.

(b) It was suggested in the article that the joint investigation “undoubtedly” established that the applicant had participated in criminal activities. This statement was not corroborated by the findings of the Kanta ‑ Häme court. On the contrary, the court’s judgment suggests otherwise, stating that the mere fact that the applicant was considered an “important lobbying target” did not mean that he had been promised or received a bribe, and that the prosecution did not present enough evidence to prove his involvement. The Court cannot therefore agree with the domestic courts’ finding that the third statement was accurate and that its veracity was substantiated, inter alia , by the judgment. Moreover, once the judgment had been adopted, the press release issued by the Office of the Finnish Prosecutor General on 28 June 2013 could no longer serve as evidence of that statement’s veracity.

(c) As regards the method of obtaining the information, it is evident that when the impugned article was published the author was already aware that, one day previously, the Kanta-Häme court had adopted its judgment in the case discussed in his article. This is clear from the first impugned statement, which suggested that the applicant had received bribes from accused individuals “who have just been convicted of giving bribes”. It is not clear whether the author was aware of the judgment’s content and, if so, to what extent. But this question may be left open, as in any case there has been a violation of Article 8 for the following reasons.

(d) If the author was aware of the content of the judgment, specifically of the court’s findings regarding the applicant, then he did not act in good faith, since he deliberately published the third impugned statement, which distorted the truth. That statement, read together with the last two paragraphs of the impugned article, gave readers the impression that, although the applicant had “undoubtedly” participated in criminal activities by accepting a bribe, the only reasons he had not been prosecuted were because the Finnish judiciary lacked jurisdiction to do so and because the Croatian prosecution and judicial authorities had for their part been unwilling to take such action, since they were a “branch” of the “former Yugoslav secret service” and “under political influence”. This is contrary to the findings in the Kanta-Häme court’s judgment.

(e) Responsible journalism requires journalists to check the information provided to the public to a reasonable extent (see Kącki v. Poland , cited above, § 52). If the author – who was clearly aware of the Kanta-Häme court’s judgment – was nonetheless not (fully) aware of its content, the Court, having regard to its case-law, considers that, given the seriousness of the allegations levied against the applicant, the author was under an unconditional obligation to seek more information prior to publication. In the circumstances of the case such an obligation was only reasonable.

(f) For these reasons, the Court is unable to agree with the domestic courts’ findings that the third statement had been based on “sufficiently” or “previously” verified information and that the author had acted in good faith. The domestic courts did not sufficiently weigh up the interests at stake, in compliance with the criteria laid down in the Court’s case‑law for balancing freedom of expression against the applicant’s rights under Article 8.

(g) The foregoing considerations are sufficient for the Court to conclude that the domestic courts failed to strike the requisite fair balance between the applicant’s right to respect for his private life and the right of the news portal to freedom of expression, and thus to comply with their positive obligation under Article 8 to ensure effective respect for the applicant’s private life, in particular, his right to respect for his reputation. There has accordingly been a violation of Article 8.

VII

54. I finish where I started – by reiterating that this judgment sets a very low standard for the protection of personality rights against trial by media . Not only does it forcefully and resolutely depart from the tenets of responsible journalism – it effectively encourages and promotes journalism which I have difficulty in describing other than as irresponsible.

I only hope that this judgment – assuming the case is not re-examined by the Grand Chamber, a re-assessment for which it cries out, – does not become a precedent that is followed in subsequent cases. Hope springs eternal.

55. Lastly, I would again state that readers of this opinion should not be distracted by the fact that the applicant was (and still is) a public figure. My quixotic objections to this most unfortunate judgment are not in the least related to the applicant’s status.

Next time it may be someone else. It is hardly necessary to remind ourselves of the Niemöller principle. Nor for whom the bell tolls.