Resolution CM/ ResDH (2009)5 [1]

Execution of the judgment of the European Court of Human Rights

Amihalachioaie against Moldova

(Application No. 60115/00, judgment of 20 April 2004, final on 20 July 2004)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation (violation of Article 10) of the Convention found by the Court in this case concerns the fining of an advocate for criticising a decision of the Constitutional Court (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken in order to comply with Moldova’s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that a finding of violations by the Court requires the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix) and considering the decision taken at the 906th meeting of the Ministers’ Deputies (22 December 2004), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2009)5

Information about the measures to comply with the judgment in the case of

Amihalachioaie against Moldova

Introductory case summary

The case concerns an infringement of the freedom of expression of the applicant, a lawyer and the President of the Bar Association, in that he was condemned by the Constitutional Court to pay an administrative fine for criticising in an interview published in a newspaper a decision by this Court finding that the statutory provisions requiring lawyers to be members of the Bar Association were unconstitutional. In its decision of 06/03/2000, the Constitutional Court found that some of the applicant's comments were disrespectful and discourteous and fined him the equivalent of 36 euros .

The European Court noted that the applicant’s conviction resulted from the way Article 82(e) of the Code of Constitutional Procedure, which sets out the acts for which an administrative penalty may be imposed, was applied in the present case. It concluded that since the comments at issue concerned a matter of general interest and were not insulting to the judges, the applicant's conviction could not be regarded as necessary in a democratic society and thus not justified under the Convention (violation of Article 10).

I. Payment of just satisfaction and Individual measures

On 03/08/2004, the Constitutional Court examined the applicant's case ex officio and ordered the reimbursement of the administrative fine. It should be noted, furthermore, that the decision at the origin of the violation had no effect on the applicant's criminal record and that he does not appear to be suffering any other consequence of the impugned decision.

Furthermore, the European Court considered that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage which the applicant may have suffered and rejected the remainder of the applicant’s claims for just satisfaction.

II. General measures

The European Court 's judgment has been translated, published in the Official Bulletin ( Monitorul Oficial No. 150-155 of 20/08/2004) and sent out by the Ministry of Justice to all domestic courts. In addition, the High Council of the Judiciary has been requested to draw the attention of domestic courts to the need to comply with the provisions of domestic law according direct effect to the Convention (e.g. Article 4 of the Constitution, Section 12 of the Code of Civil Procedure and Section 7 of the Code of Criminal Procedure).

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent new, similar violations and that Moldova has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 9 January 2009 at the 1043rd meeting of the Ministers’ Deputies