PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE LOUCAIDES

I agree with the majority that there has been a violation of Article 10 of the Convention in this case , but my approach in s o finding is different. In short, I believe that the restriction provided for in the relevant law, which was applied in the case of the applicant in the form of an administrative fine in respect of what he had said in an interview with regard to a decision of the Constitutional Court, was not directly connected with the permissible relevant legitimate aim, namely, maintaining the authority of the judiciary , and went beyond what was required for the achievement of that aim. Consequently , I find that the legislative restriction in question cannot itself be considered as pursuing such an aim.

It is a well - established principle of interpretation of the Convention that restrictions on the rights and freedoms prescribed therein should be construed strictly and narrowly. As observed by the Commission in t he Sunday Times case (Series B no. 28 , p. 64, § 194 ), strict interpretation of exception clauses in the context of the Convention means

“ that no other criteria than those mentioned in the exception clause itself may be at the basis of any restrictions , and these criteria , in turn , must be understood in such a way that the language is not extended beyond its ordinary meaning”.

Apart from the interpretation principle in question , there are two specific factors in Article 10 itself which control the concept and scope of the permissible aim of the restriction under consideration. Firstly, the condition that the restriction must be “necessary in a democratic society” and , secondly , the notion of “authority” of the judiciary in respect of which the restriction may be imposed.

The question whether a law which restricts any of the rights safeguarded by the Convention does in fact pursue a permissible aim must, in my opinion, always be examined in the context of the requirements of a modern democratic society. It is not sufficient for a law which imposes any such restriction to refer to one of the aims for which the relevant restriction is allowed. The substantive question should always be whether the restriction is actually necessary for that aim , taking into account the present - day conditions of democracy. If the restriction goes beyond what is required for the relevant aim , or simply serves that aim incidentally or indirectly , it cannot be considered as necessary in a democratic society for the achievement of that aim and should, for that reason, be considered as not covered by the applicable exception clause.

In the present case the material part of the law on the basis of which the applicant was punished is as follows:

“In order to ensur e the proper administration of constitutional justice , the Court may impose an administrative fine of up to twenty-five times the minimum monthly salary on anyone who :

...

(e) displays a lack of respect for the Constitutional Court by refusing to obey order s of the presiding judge, violating disciplin ary rules or commi tting other acts that show an obvious lack of regard for the Court ... ” (emphasis added)

However I cannot see how t he punishment of anybody for an act expressing “ lack of regard” for a court (as compared with the stricter concept of contempt of court) can be necessary in a modern democratic society in order to maintain the authority of the judiciary . This becomes even more evident if we bear in mind the fact that freedom to criticise judicial decisions and the functioning of the judiciary in general is nowadays an indispensable element of democracy – all the more so as such criticism serves as a safeguard for the proper control of judicial authority. Such criticism might reasonably be interpreted as lack of “ regard ” for a court, the term “ regard ” being so wide that it can cover any possible confrontation with, and challenge or dispute of, any act of judicial authority in the form of mere criticism.

It is important to address our mind in this respect to the requirements of a modern democratic society regarding accountability of all State institutions to the people and the corresponding right of the latter to express themselves freely on matters relating to a possible malfunctioning of such institutions. And in a modern democratic society criticism of such institutions, even if it amounts to lack of “ regard ”, is a much more important value than the protection of the prestige of any State institution. It is, I think, useful to recall here the w ords of a famous British judge, Lord Denning, Master of the Rolls, when, as far back as 1968, he was referring to an article which strongly criticised a judgment of the C ourt of Appeal [1] and whi ch was allegedly a contempt of court :

“That article is certainly critical of this court. In so far as it referred to the Court of Appeal, it is admittedly erroneous ... Let me say at once that we will never use this jurisdiction [of contempt of court] as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say

that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not.” [2]

Furthermore, the term “authority” means the power or right to enforce obedience ( Oxford English Dictionary ). Again , I cannot see how a mere lack of “ regard ” for a court entails undermining the power or authority of the judiciary to enforce obedience to its judgments or other judicial acts. Such “authority” can be effective in spite of the lack of “ regard ” shown by those affected by it or any third party.

In the circumstances , I find that the law in question , to the extent that it prohibits in absolute terms acts expressing a lack of regard for the Constitutional Court in order to protect, according to the Government, the authority of the court , falls outside the scope of that aim and cannot be considered as pursuing its objectives. This is clearly illustrated by the application of that law in the applicant ’ s case.

Article 41

I disagreed with the majority ’ s decision not to make the applicant an award in respect of just satisfaction and costs and expenses. I agree with the reasons set out by Mrs Thomassen in her opinion that he should have received such an award.