Постановление Европейского суда по правам человека от 08.10.2009 "Дело "Романенко и другие (Romanenko and others) против Российской Федерации" [рус., англ.]

tral Bank during the default period plus three percentage points;
3. Dismisses the remainder of the first applicant's claim for just satisfaction.

Done in English, and notified in writing on 8 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Nina {VAJIC}
President

{Andre} WAMPACH
Deputy Registrar





In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint concurring opinion of Judges Spielmann and Malinverni is annexed to the judgment.

N.A.V.

A.M.W.

JOINT CONCURRING OPINION OF JUDGES SPIELMAN AND MALINVERNI

1. We are in agreement with the Court's conclusions that there has been a violation of Article 10 of the Convention.
2. However, we cannot agree with the reasoning put forward by the majority in paragraph 39 of the judgment. In so far as the interference in connection with the civil action brought by the courts' management department of the Primorskiy region is concerned (paragraph 10 of the judgment), we have serious doubts as to whether this interference pursued the legitimate aim of the "protection of the reputation or rights of [[others]] <*>" (emphasis added), as is suggested implicitly by the majority. The Court leaves this question open, saying that "it is not its task to examine the domestic legislation in the abstract but rather to consider the manner in which that legislation was applied to, or affected, the applicant in a particular case", and deciding that "this issue will also be examined in the analysis of the proportionality of the interference" (paragraph 39 in fine).
--------------------------------
<*> В тексте документа вместо курсива использовано выделение двойными квадратными скобками.

3. Before going into proportionality, the Court should have satisfied itself that the interference pursued one of the legitimate aims laid down exhaustively in paragraph 2 of Article 10 of the Convention. The majority, albeit implicitly, seem to suggest in this respect that a public body or authority may claim protection of the reputation or rights of others, which is in our view inconceivable. Indeed, the structure of Article 10 suggests a triangular relationship involving the State - author of an interference -, the applicant - victim of an interference - and "others", whose reputation and rights may or may not be protected. The only "public body" covered by one of the exceptions laid down in paragraph 2 of Article 10 is the "judiciary", whose authority and impartiality may be protected through an interference, provided that such interference is necessary in a democratic society and is proportionate to the aim pursued.
4. In our view, under the Court's requisite strict construction of the enumerated legitimate aims, it is unreasonable to include a public authority within the meaning of "others" whose reputation or rights Article 10, paragraph 2, is designed to protect.
5. To conclude, and in so far as the interference in connection with the civil action brought by the courts' management department of the Primorskiy region is concerned, the Court should have limited its finding of a violation of Article 10 to the absence of a legitimate aim, without examining the question of proportionality.






> 1 2 3 ... 23 24 25

	Поделиться:	Tweet