PARTLY CONCURRING , PARTLY DISSENTING OPINION OF JUDGE THOMASSEN

I agree with the majority that Article 10 has been violated in this case but I have so concluded on different grounds.

The interference with the applicant ’ s freedom of expression was allegedly based on the second paragraph of Article 10 , which justifies restrictions on the exercise of this freedom “for maintaining the authority and impartiality of the judiciary”. This ground comes close to the Anglo-Saxon notion of contempt of court , which is intended to prevent the authority and the independence of the courts, as well as the rights of parties to proceedings, from being impaired by publications or other such acts ( see The Sunday Times v. the United Kingdom (no. 1) , judgment of 26 April 1979, Series A no. 30, p. 34, §§ 55 -56 ).

In the present case , Articles 81 and 82 of the Code of Constitutional Procedure gave the Constitutional Court the power to examine, interrogate and take measures of its own motion and by its own authority “ [i] n order to protect the dignity of the Constitutional Court judges and the participants in the proceedings, and to secure appropriate conditions for the exercise of constitutional jurisdiction” (see paragraph 17 of the judgment ).

Any justification for according such a broad power to a court should be strictly scrutinised in view of the importance of the right of freedom of expression at stake. This means, in my view, that this power sh ould in principle only be used in the context of a court ’ s responsibility to guarantee a fair trial in a pending case , which is the very justification of contempt of court sanctions.

It cannot reasonably be said that the powers used by the Constitutional Court were to guarantee a fair trial in a pending case. The court began proceedings against the applicant, interrogated him and imposed a penalty on him following delivery of its judgment. These measures did not address the applicant ’ s attitude as a lawyer in proceedings but rather his attitude as a party who commented on a final judgment in his own case. The power justified to guarantee a fair trial in a pending case was used by the Constitutional Court for another aim , namely to restrict the applicant ’ s democratic right to debate publicly the merits of that court ’ s judgment.

Moreover, the imposing of the penalty by the Constitutional Court, wh ich had begun the proceedings against the applicant itself and was itself the “victim” of the remarks made by the applicant, could be argued to be in violation of the right to be heard on a criminal charge by an independent and impartial tribunal (see Kyprianou v. Cyprus , no. 73797/01, 27 January 2004).

In my view , Article 10 § 2 cannot justify this kind of interference with the applicant ’ s right to freedom of expression. It follows from th is that , unlike the majority, I cannot consider the measures taken and the reasons given by the Constitutional Court (see paragraph 15 of the judgment) as pursuing the aim of maintaining the authority and impartiality of the judiciary.

Assuming that the restrictions on the applicant ’ s right were imposed in independent proceedings , and assuming that for that reason it could be accepted that the imposition of the sanction pursued the aim of maintaining the authority and impartiality of the judiciary, the penalty imposed on the applicant could not be seen as necessary in a democratic society. In that respect I would agree with the majority, although I would have reached the same conclusion if the penalty imposed had been a symbolic one (see paragraph 38 of the judgment).

I agree with Judge Loucaides in his separate opinion that the freedom to criticise judicial decisions and the functioning of the judiciary is an indispensable element of democracy. The present case shows the importance of such freedom to criticise. The Constitutional Court had declared unconstitutional a law which provided for the compulsory affiliation of lawyers in Moldova to the Bar Council . Such compulsory affiliation is accepted in the legal systems of many European countries , where it is considered necessary to guarantee the independence of the legal profession. The importance of the independence of lawyers is expressed in Recommendatio n Rec (2000)21 of the Committee of Ministers of the Council of Europe as follows: “(1) Lawyers should be allowed and encouraged to form and join professional local, national and international associations which, either alone or with other bodies, have the task of strengthening professional standards and safeguarding the independence and interests of lawyers. (2) Bar associations or other professional lawyers ’ associations should be self-governing bodies, independent of the authorities and the public.”

The preamble of the r ecommendation underlines that the importance of lawyers being organised in independent associations is based on the presumption that a proper exercise of lawyers ’ responsibilities should be ensured and that it is in particular necessary for lawyers to find a proper balance between their duties towards the courts and those towards their clients. It cannot be denied that the applicant ’ s criticism o f the Constitutional Court ’ s decision concerned an item of general interest and should not have been discouraged in any way by State organs in a democratic society.

Even if the applicant ’ s comments could have been interpreted as a lack of respect or “ regard ” for the Constitutional Court (see paragraph 36 of the judgment), the general interest in allowing a public debate about the independence of lawyers, as in this case, weighs more heavily than the interests of the judges of the Constitutional Court in being protected against criticism of the kind expressed in the interview with the applicant, a criticism which was, in fact, concise and cannot be considered as constituting a personal attack on the judges (as, for example, in Barfod v. Denmark , judgment of 22 February 1989, Series A no. 149 , and Perna v. Italy [GC], no. 48898/99, ECHR 2003 -V ). That is why, even assuming that the interference pursued a legitimate aim, it could not, on any view, be considered “necessary”.

In line with my reasoning , I cannot agree with the majority that the finding of a violation suffices in itself to compensate for the non-pecuniary damage sustained by the applicant. It was reasonable for the latter to suggest that his conviction had seriously impaired his reputation as a lawyer and as Chairman of the Bar Council who had stood up for the rights of the defence in general. There was, therefore , justifi cation for award ing him compensation to be assessed on an equitable basis (see, for example, Nikula v. Finland , no. 31611/96, ECH R 2002-II). N or can I agree with the decision to make no award as regards the applicant ’ s costs and expenses, for which he claimed 2 , 000 U nited S tates dollars . His claim does not strike me as exaggerated but, even if it did, there was no particular reason to award him nothing at all under this head ( see Foley v. the United Kingdom , no. 39197/98, 22 October 2002).

By dismissing the applicant ’ s claims under Article 41 , the Court in my opinion did not stress sufficiently the seriousness of the interference with the applicant ’ s rights under Article 10 of the Convention .