HURBAIN v. BELGIUM JUDGMENT – SEPARATE OPINIONS
10. This task is not always an easy one, because in the proceedings before
the Court the case is presented through a single prism, namely that of the
applicant whose claims have been dismissed by the domestic courts. The
configuration of the case before the Court may give rise to difficulties in that
regard, given that the winning party in the domestic proceedings is not
automatically a party before the Court. The only possible means for that party
to defend its interests before the Court is to make an application to intervene
as a third party on the basis of Article 36 § 2 of the Convention, which G. did
in the present case.
(ii) The Court’s subsidiary review
11. It is now well established in the Court’s case-law that where a conflict
between Article 8 and Article 10 of the Convention has been resolved by the
domestic authorities on the basis of the criteria set out by the Court, the latter
would require “strong reasons” to substitute its own view for that of the
authorities in question (see paragraph 201 of the present judgment). In this
case, in my view, no such “strong reasons” exist.
12. If I were a domestic judge, would I have taken a different decision
from that reached by the Belgian courts in the present case? Possibly. But that
is not the issue. The Court is an international court, not a domestic one.
Accordingly, it is not its task to state how it would have preferred the conflict
between the competing rights to be resolved. It cannot lay claim to such a
role. Its task is to determine whether the decision taken by the domestic courts
is compatible with the criteria it has laid down under the Convention and falls
within the margin of appreciation left to the national authorities in resolving
disputes between individuals which involve competing rights. In other words,
the Court is not called upon to carry out its own balancing exercise, but to
review the exercise conducted by the domestic courts.
13. I found two factors to be particularly persuasive in the present case:
the detailed examination of the case by the domestic courts (see paragraphs
14 et seq. below) and the concern to ensure the accessibility of the impugned
article (see paragraphs 24 et seq. below).
B. The examination of the case by the domestic courts
14. A variety of measures may be considered in order to determine
disputes arising from the digitisation of press archives (see paragraph 241 of
the present judgment).
The most “drastic” measures consist in the outright removal of the
archived material (an approach that was dismissed in the case of
Węgrzynowski and Smolczewski v. Poland, no. 33846/07, 16 July 2013, under
Article 8 of the Convention) or, at the opposite end of the scale, its retention
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