PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE PAVLOVSCHI

In the present case, after much hesitation, I decided to vote along with the majority in favour of finding a violation of Article 11, although my line of reasoning radically differs from that of the majority.

A. Some remarks of a general nature

The present case is unique in many different respects.

Although the Court has quite a rich body of case-law concerning the prohibition and forced dissolution of political parties, this is the first time we have dealt not with a prohibition or dissolution but rather with a decision on the temporary suspension of a political party ' s activities – what is more, only four forms of activity and not all of them. A more relevant factor is that the decision on temporary suspension was never enforced and, moreover, some time ( twenty days) later it was lifted by the national authorities.

In the case before us we are dealing with a situation where differences between the political opposition and the ruling forces which may at first sight have seemed absolutely irreconcilable , and which resulted in a deep political crisis , have been transformed , thanks to the mediation of the Council of Europe, into a strategic partnership built on the principles of European democracy, mutual respect and common understanding of the future of the Republic of Moldova in Europe . We are dealing with a situation where , thanks to the Secretary General , the Parliamentary Assembly and the Committee of Ministers of the Council of Europe , as well as the good will of both the Moldovan opposition and the ruling political force , a permanent “round table” has been set up . All the main political parties of Moldova have obtained the possibility to discuss openly questions of general importance for the country.

In order to enable the parties involved in the conflict to find democratic solutions to the problems facing them, the Office of the Special Representative of the Secretary General of the Council of Europe was set up in Moldova and is working productively.

Lastly, we are dealing with a situation where the leader of the CDPP – the main opposition party of Moldova – was elected as a Vice - President of the Moldovan p arliament and where members of parliament belonging to former political rivals – the Christian Democratic People ' s Party and the Communist Party of Moldova – voted together for the s ame candidate to the presidency, put forward by the latter party .

My understanding is the following : bo th former rivals have manifested their political maturity, their willingness and their readiness to find a consensus in the general interests of society and for the benefit of the Moldovan people.

In my opinion , all these new developments are of great significance for the rule of law and democracy not only for Moldova , but for the whole of Europe too. They are overwhelmingly important as a positive precedent for fruitful cooperation between political parties which, despite their different political ideals and views, despite their fears and suspicions , have manifested their capacity to overcome contradictions , to find points of convergence and to work jointly in the interest s of European integration and on the basis of the principles of democracy . T he Christian Democratic People ' s Party and the Communist Party of Moldova are now jointly conducting very serious legislative efforts aim ed at bringing Moldovan legislation into line with European legal standards [1] .

In the r eport of 16 September 2005 addressed to the Parliamentary Assembly of the Council of Europe on “Functioning of democratic institutions in Moldova ” (Doc. 10671 , §§ 3-4 ) , we read:

“ The ruling Communist P arty has taken a resolutely pro-European stance since 2002 and now seems determined to speed up the process of European integration. Since the parliamentary elections in March 2005, the President has also had the support of part of the opposition, including the ... Christian Democratic [People ' s] Party, on condition that he undertakes rapid legislative reforms ... The newly elected Moldovan p arliament has taken the exceptional initiative of adopting unanimously, at its first plenary sitting, a Declaration on Political Partnership to Achieve the Objectives of European Integration. The political maturity and responsibility of Moldovan politicians in the eyes of their people and their country will also be measured by the yardstick of this spirit of co operation and all the democratic reforms they are able to carry out ... ”

Taking into consideration the above-mentioned exceptional events and developments, it would have been pertinent for them to have been reflected in the Court ' s judgment . T he question of striking the application out could perhaps also have been considered.

I welcome the insertion in the judgment (paragraph 78) of the statement “ [t] he Court has noted with satisfaction the readiness of the Moldova n authorities to lift the ban following instigation of the inquiry by the Secretary General under Article 52 of the Convention ... ” , but this, in my view, is not sufficient.

I greatly regret that the majority missed a very good opportunity to take into consideration all the recent events and developments outlined above, and did not even mention them in the judgment. I do not find this approach very correct, because, in my opinion, the events described in the judgment, seen in isolation, create a distorted picture of what was and still is going on in Moldova .

B. Reasons for disagree ing with the decision of the majority

The entire judgment is based on the argument that there was interference in the present case in the form of a temporary ban on the CDPP ' s activities (see paragraphs 71-78 of the judgment) .

From the very outset it is necessary to mention that, under Moldovan legislation, a “blanket” or total, absolute temporary ban on a political party ' s activities is not allowed. The Parties and other Socio-Political Organisations Act provides that, during a temporary ban, restrictions may be imposed on only four forms of activity: us ing the mass media , disseminating propaganda and publicity , carry ing out bank transactions or other operations in respect of its assets, and participat ing in elections.

Other forms of both everyday and political activities (such as, for instance, activity in Parliament or local councils, the organising of party meetings at both local and central levels, conferences, seminars, the use of offices, premises, computers and other forms of office activity) may not be restricted, even during a temporary ban.

In my view, the conclusion that there was a ban in the case under consideration was reached, at least partly, because of the superficial – if not wrong and misleading – presentation of Moldovan national legislation.

Paragraph 37 of the judgment , describing “the relevant parts” of the Parties and other Socio-Political Organisations Act , contains the following passage:

“...

Section 29

' The Ministry of Justice shall impose a temporary ban on the activities of a party or socio-political organisation which breaches the provisions of the Constitution or those of the present Act , or does not comply with a warning . '

On 21 November 2003 this paragraph was amended as follows:

' The Ministry of Justice shall impose a temporary ban on the activities of a p arty or socio-political organisation which breaches the provisions of the Constitution.

In this case, the Ministry of Justice shall inform the party ' s leadership in writing of the breaches of the law which have taken place and will set a time - limit for action to remedy them .

During electoral campaigns the activities of parties and other socio-political organisations may be suspended only by the Supreme Court of Justice.

During the temporary ban, it shall be forbidden for the party to use the mass media , to disseminate propaganda and publicity , to carry out bank transactions or other operations in respect of its assets and to participate in elections.

Once all the breaches of the law have been remedied , the party shall inform the Ministry of Justice, which shall lift the temporary ban within five days .

The activities of the party or other socio-political organisation may be suspended for a period up to six months. If the breaches of the law are not remedied its activities may be suspended for a period of one year. ' ”

Owing to the not very clear presentation of section 29, t his passage of the judgment creates the impression that the provision “ [d] uring the temporary ban, it shall be forbidden for the party to use the mass media , to disseminate propaganda and publicity , to carry out bank transactions or other operations in respect of its assets and to participate in elections ” did not exist at the time when the activity of the CDPP was allegedly “banned”.

But this is simply not true.

I am afraid that the Moldovan legislation, as I have said, has not been very well presented on this point.

At the material time , section 29 of the above-mentioned Act – that is, before the amendment of 21 November 2003 – existed in the following version:

“ The Ministry of Justice shall impose a temporary ban on the activities of a party or socio-political organisation which breaches the provisions of the Constitution or those of the present Act , or does not comply with a warning. In this case, the Ministry of Justice shall inform the party ' s leadership in writing of the breaches of the law which have taken place and will set a time - limit for action to remedy them .

During electoral campaigns the activities of parties and other socio-political organisations may be suspended only by the Supreme Court of Justice.

During the temporary ban, it shall be forbidden for the party to use the mass media , to disseminate propaganda and publicity , to carry out bank transactions or other operations in respect of its assets and to participate in elections.

Once all the breaches of the law have been remedied , the party shall inform the Ministry of Justice, which shall lift the temporary ban within five days .

The activities of the party or other socio-political organisation may be suspended for a period up to six months. If the breaches of the law are not remedied its activities may be suspended for a period of one year. ”

As a result of the amendment of 21 November 2003 , the ending of the first paragraph “... or those of the present Act , or does not comply with a warning ...” was deleted, the rest of the section remaining untouched [2] .

Accordingly, during the alleged “ban”, that is in January and February 2002, the following provision was in force:

“ During the temporary ban, it shall be forbidden for the party to use the mass media , to disseminate propaganda and publicity , to carry out bank transactions or other operations in respect of its assets and to participate in elections. ”

In my opinion, to rule that there had been a ban on the CDPP ' s activities, the majority should have satisfied themselves that , as a result of the decision of the Minister of Justice, this political party had been deprived of the possibility either to use the mass media, to disseminate propaganda and publicity , to carry out bank transactions or other operations in respect of its assets, or to participate in elections.

Since the CDPP ignored the decision issued by the Minister, and the Minister in turn, manifesting his good will, decided not to enforce his decision, we can say that there were no negative consequences for the CDPP.

The CDPP ' s representatives failed to produce any evidence to prove that, as a result of the decision of the Minister of Justice, their clients were deprived of the possibility to use the mass media or to disseminate propaganda and publicity , or that they did have bank accounts or other assets but lost the possibility to carry out transactions with those assets, or that they were deprived of the possibility to participate in elections.

There is no evidence i n the case file to indicate that any of the above negative consequences occurred.

All these arguments show that there was no de facto ban on the CDPP ' s activities. In the present case, in practical terms, we are dealing not with an “actual ban”, but rather with a “decision to ban”, which remained unenforced and, after twenty days, was lifted by the same public official.

I consider that in such circumstances it is right and justified to speak of an abandoned attempt to suspend the CDPP ' s activities.

In my humble opinion, in the present case we should have discussed an interference of an unclear legal nature – the abandoned attempt to suspend the CDPP ' s activities by way of an unenforced decision and not a “ban” which, as I have already mentioned, never took effect.

The problem of the “necessity” of the “interference”, in the form in which it has been presented in the judgment, creates a further difficulty for me.

This issue, necessity of interference, cannot be analysed in abstr a cto and is closely linked to the problems of the lawfulness of the interference, the existence of pressing social needs and the legality of the aims of the interference. The nature of the interference and its proportionality to the legitimate aims pursued are crucially important for the determination of whether there has been a violation or not .

I entirely agree with the statement of the majority in paragraph 48 of the judgment that an interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 and was “necessary in a democratic society” for the achievement of those aims .

Unfortunately the majority, contrary to the above statement, decided not to examine the problem of the lawfulness of the interference and the nature of the aims pursued. In my opinion, it is simply impossible to assess the “necessary in a democratic society” criterion without having previously assessed the legal nature of the measures taken and of the aims pursued by the Government. In order to be “necessary”, the interference should be proportionate to a “pressing social need”. The “pressing social need” in turn determines the nature of the aims pursued. So, all the above-mentioned elements must be examined jointly, starting, of course, with the determination of the lawfulness of the interference.

C. Reasons for voting in favour of a finding of a violation in the present case

In my view, the issuing of a decision on the suspension of a political party which had never been enforced, had not had any negative consequences, had been simply ignored by the party, and after twenty days had been lifted by the same public official who had previously issued it would not attain a degree of seriousness calling for international protection unless it had been issued contrary to the law.

And here I see a real problem. I doubt very much that the issuing of the decision at stake was in accordance with the law.

According to the Court ' s case - law, a norm cannot be regarded as a “ law ” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences a given action may entail ( S ee The Sunday Times v. the United Kingdom (no. 1) , 26 April 1979, § 49 , Series A no. 30 ) .

Here it is worth mentioning that the Parties and other Socio-Political Organisations Act does not provide for corporate liability ; in other words, it does not provide for a party ' s liability for any action taken by its members. The l ack of legal regulation s governing a party ' s liability for the actions of some of its members makes the application of restrictions provided by the law unforeseeable in practical terms.

T his reason in itself could render the decision in question base less from a legal point of view, which would allow us to find that the interference was not “prescribed by law”. And here I should mention that this argument was, essentially , one of those on which the applicant party relied, declaring that all the gatherings and demonstrations in issue had been organised by the CDPP ' s members of parliament and not by the CDPP itself.

I agree with the applicant party ' s representatives on this point. Indeed, there is nothing in the file to suggest that the CDPP as a political formation had any connection with the gatherings which took place on the main square of the Moldovan capital.

All the arguments set out in the judgment would have been valid had the S tate authorities applied restrictions to particular private persons. In th at case, I would have agreed that the interference was prescribed by law and had a legitimate aim but was perhaps not necessary in a democratic society, but this was not so .

The present case involves a legal entity rather than a private person . The Parties and other Socio-Political Organisations Act did not contain, and still does not contain, any direct legal provision regulating with sufficient clarity the liability of political parties (legal entities ) for acts committed by their members (private persons).

At its 41st plenary session on 10 and 11 December 1999 the Venice Commission adopted guidelines on the prohibition and dissolution of political parties and analogous measures.

According to the guidelines, a political party as a whole cannot be held responsible for the individual behaviour of its members not authorised by the party within the framework of political/public and party activities [3] .

This is exactly the case as far as the legislation of Moldova is concerned.

Moreover, section 20 of t he A ssemblies Act provides that administrative or criminal sanctions may be imposed on the organisers of or participants in an assembly who breach the provisions of the Act . The Act does not provide for any liability of a political party for breaches of the law committed in the course of a gathering convened by it.

Neither the B anks and other F inancial I nstitutions Act nor the Property Act provides for any possibility of freezing a political party ' s assets in the event of a temporary suspension of its activities. Nor do the Press Act or the Audiovisual Media Act provide any legal ground for limitations on the use of such media by a political party during the party ' s temporary suspension.

In view of all these manifest gap s in the law, the application of a “temporary suspension” entail ing the restrictions referred to in section 29 of the Parties and other Socio-Political Organisations Act (namely “ [d] uring the temporary ban, it shall be forbidden for the party to use the mass media , to disseminate propaganda and publicity , to carry out bank transactions or other operations in respect of its assets and to participate in elections” ) is unlawful both in terms of the Convention and in terms of Moldovan national legislation.

To sum up, in my view in the present case the interference was not prescribed by law . As a result, there has been a violation of Article 11 of the Convention and , consequently, there was no need to examine the issue of the proportionality of this interference.

D. Excessive nature of the lawyers ' fees

There is one more aspect of the present case with which I am not able to agree: the amount awarded in respect of lawyers ' fees – 4,000 euros (EUR). I find this amount excessive, corresponding neither to the work done nor to the Court ' s case-law.

I would have readily accepted this amount in respect of the costs and expenses had the lawyers contributed to the finding of the truth in the present case, but this was not so. I have already mentioned that no evidence was produced to show that a ban was actually applied to the CDPP. This, in practical terms, put the Court in a position where, in the absen ce of evidence, it had to take for granted the factual application of the ban.

Moreover, in their initial complaint the applicant party ' s representatives relied on Articles 6, 10 and 11 of the Convention , as well as Article 1 of Protocol No. 1. After some time, they decided to withdraw their complaints under Article 6 of the Convention and Article 1 of Protocol No. 1. In turn, the Court decided not to examine their complaint under Article 10. From these four complaints the Court found a violation of only one provision of the Convention, namely Article 11.

It has been a long-standing practice of the Court to reduce awards for costs and expenses according to the number of violations found.

In the case of Nikolova v. Bulgaria ([GC], no. 31195/96, § 79, ECHR 1999- ΙΙ ) the Court stated:

“ The Court recalls that in order for costs to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and reasonable as to quantum (see, among other authorities, the Campbell and Fell v. the United Kingdom judgment of 28 June 1984, Series A no. 80, pp. 55-56, § 143).

The Court notes that part of the lawyer ' s fees claimed concerned the applicant ' s defence against the criminal charges in the domestic proceedings and her complaint of their alleged unfairness which was declared inadmissible by the Commission. These fees do not constitute expenses necessarily incurred in seeking redress for the violations of the Convention found in the present case (see the Mats Jacobsson v. Sweden judgment of 28 June 1990, Series A no. 180-A, p. 16, § 46). The number of hours claimed to have been spent by the lawyer on the case also appears excessive . ...”

In Debono v. Malta ( no. 34539/02, § 54, 7 February 2006) the Court also stated that the applicant ' s complaints other than the one concerning the violation of the “reasonable time” principle had been declared inadmissible. It therefore considered it appropriate to reimburse only in part the costs and expenses claimed by the applicant.

I consider that a similar approach should have been taken in the present case.

Moreover, the applicant party ' s lawyers in the present case are representatives o f the Lawyers for Human Rights organisation. I have particular respect for this organisation, which is ve ry active in the field of human rights protection and has submitted quite a considerable number of applications to the Court raising issues that are both serious from the human rights protection point of view and very interesting from the legal point of view. However, there is a problem here: t his organisation is a non- governmental organisation (NGO) , acting on the basis of the Non ‑ Governmental Associations Act ( Cu privire la asociaÅ£iile obÅŸteÅŸti ) [4] . Under this Act , all Moldovan NGOs are no n- profit organisations and I very much doubt that a no n -profit NGO should apply rates which exceed those applicable to lawyers working for the Moldovan Bar Association. I am afraid that applying to NGOs rates which, in theory, could apply to professional for-profit organisations could distort the very nature of civil society ideals.

It is also worth mentioning that the Lawyers for Human Rights NGO, along with the Helsinki Committee s , the LADOM and others, positions itself as an organisation rendering legal services free of charge [5] .

I am afraid that I find it very difficult to accept that the rates of EUR 60 and EUR 80 per hour claimed by the applicant party ' s representatives could be viewed as the rendering of legal services free of charge or as a kind of “ non-profit ” activity.

Accordingly , if we take into consideration the fact that only one of the four complain t s was declared admissible and only one violation was found, as well as the non -profit status of the Lawyers for Human Rights NGO, the amount awarded in respect of costs and expenses should have been reduced by half and should have been at the level of about EUR 2,000 in order to fully compensate the applicant party ' s representatives for expenses that were actually incurred and not hypothetical or speculative expenses and, moreover, to secure them a very comfortable standard of living for at least a couple of months.

This is where I respectfully disagree with the majority.