DISSENTING OPINION OF JUDGE PAVLOVSCHI

In the present case the majority of the Chamber found a violation of the applicant ’ s rights under Article 10 of the Convention. To my great regret, I cannot agree with this conclusion.

I do not call into question the existence of an interference in the present case. The problem, in my opinion, is whether this interference was justified under Article 10 § 2 of the Convention. It is therefore necessary to examine whether it was “prescribed by law”, pursued a legitimate aim and was “necessary in a democratic society” , within the meaning of that provision (see Lingens v. Austria , judgment of 8 July 1986 , Series A no. 103, pp. 24 ‑ 25, §§ 34-37).

I. Whether the interference was “ prescribed by law ”

Examining the meaning of the notion “prescribed by law”, the Court stated in The Sunday Times v. the United Kingdom (no. 1) ( judgment of 26 April 1979, Series A no. 30, p. 31, § 49) :

“In the Court ’ s opinion, the following are two of the requirements that flow from the expression ‘ prescribed by law ’ . Firstly, the law must be adequately accessible : the citizen must be able to have an indication that it is adequate in the circumstances of the legal rules applicable to a given case. Secondly, 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 which a given action may entail. Those consequences need not be foreseeable with absolute certainty ; experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.” ( e mphasis added)

Applying the above principles to the present case, the fo llowing points are to be noted:

There is no problem whatsoever as regards the general accessibility of the Code of Constitutional Procedure . This Code is published in the Official Gazette ( Monitorul Official ) , where all normative acts are routinely published, and is accessible on various Internet sites such as the Constitutional Court ’ s site , www.ccrm.rol.md , and the legislation site , www.docs.md , etc.

Concerning the quality of this law, I find it sufficiently clear, because it has been drafted in conformity with all the necessary elements of legislative techniques.

Let us look at the relevant provisions of the Code of Constitutional Procedure .

Article 81 Securing the exercise of constitutional jurisdiction

“1. In 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, the Court may take the measures provided for in Article 82. ”

Article 82 Liability for breach es of the procedural rules of the Constitutional Court

“ 1. In order to ensure 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:

(a) makes an unconstitutional statement, regardless of the manner of its expression;

(b) interferes with the procedural activity of the Constitutional Court judges, or attempts to influence them by non-procedural methods;

(c) refuses without due cause to comply with the orders of the judges of the Court in the prescribed ma nner or within the time allowed, or fails to comply with a judgment or advisory opinion of the Court;

(d) violates the judicial oath;

(e) displays a lack of respect for the Constitutional Court by refusing to obey orders of the presiding judge, violating disciplinary rules or committing other acts that show an obvious lack of regard for the Court and its procedure.

2. The measures for securing appropriate conditions for the exercise of constitutional jurisdiction shall be imposed by decisions of the presiding judge, which shall be registered in the minutes of proceedings or attached to them.

3. The fine shall be paid within fifteen days of its notification to the offender. If the offender refuses to pay or does not pay within the prescribed time , the decision of the Constitutional Court shall be enforced ... on the basis of the extract of the minutes of the proceedings or the decision of the presiding judge. ...”

So, my conclusions are as follows:

1. This law clearly defines a “pressing social need” to protect the dignity of the Constitutional Court judges and to secure the appropriate conditions for their function.

2. The law contains the list of acts which the legislator considers illegal, including those that show “an obvious lack of regard for the Court and its procedure”.

3. The law contains measures which may be applied to those who violate its provisions, namely, “a fine of up to twenty-five times the minimum monthly salary”.

This leads me to the conclusion that the provisions of the Code of Constitutional Procedure enable citizens, as stipulated in The Sunday Times (no.1) , cited above, “... to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail ” , because the law provides both the description of punishable actions and their negative consequences.

To sum up, I consider that the quality of the legal provisions contained in the Code of Constitutional Procedure was sufficient to allow the conclusion that the applicant was able to foresee, “to a degree that was reasonable in the circumstances” the risks that a lack of regard for the Constitutional Court and its procedure might entail.

So, the interferenc e in this particular case was “ prescribed by law”.

I I. Whether the interference pursued a legitimate aim

Neither the applicant nor the Government contest ed the fact that the fine imposed on the former pursued the legitimate aim of maintaining the authority, independence and impartiality of the judiciary.

III. Whether the interference was “nec essary in a democratic society”

As has been confirmed on many occasions by different international fora, an independent and impartial judiciary is the indispensable tool of every democratic State. It is an essential element of a political system based on the rule of law. It is clear that all such States are not only entitled, but also obliged, to take all necessary measures to protect the dignity of judges in order to maintai n the authority of the courts. Moreover, they must ensure that members of the judiciary can function in conditions where they are not exposed to any illegal pressures, including psychological pressure, and can base their decisions on legally relevant arguments, and not on grounds tainted by threats, insults, defamation, calumny or other forms of illegal influence.

The inviolability of judges, as a part of their independence, is not a privilege, but a precondition of their objective and impartial professional activities. Since judges are responsible for ultimate decisions over life, freedom, rights, duties and the property of citizens, judicial activity must inspire the confidence of the people that it is exercised in a truly free manner. The preservation and increase of public confidence in the judiciary are recognised as public needs, based on the g eneral interests of society.

In its “Basic Principles on the Independence of the Judiciary” the General Assembly of the United Nations stated :

“The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary . ... The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason . ”

The same theme is contained in Recommendation No. R (94) 12 of the Committee of Ministe rs of t he Council of Europe to member S tates o n the i ndependence, e fficiency and r ole of j udges (adopted by the Committee of Ministers at the 518th meeting of the Ministers ’ Deputies), where it is stated :

“The independence of judges should be guaranteed pursuant to the provisions of the Convention and constitutional principles, for example by inserting specific provisions in the constitutions or other legislation or incorporating the provisions of this recommendation in internal law . ... In the decision-making process, judges should be independent and be able to act without any restriction, improper influence, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason. The law should provide for sanctions against persons seeking to influence judges in any such manner . Judges should have unfettered freedom to decide cases impartially, in accordance with their conscience and their interpretation of the facts, and in pursuance of the prevailing rules of the law . ... Judges should have sufficient powers and be able to exercise them in order to carry out their duties and maintain their authority and the dignity of the court”

All these provisions underline, without doubt, that the protection of the dignity of courts and judges against undue influence, and the protection of the independence of the judiciary are absolutely necessary in a democratic society.

There is no other way for a State to fulfil its obligations but to sanction violations of these principles. This is the path inevi tably chosen by the Moldo v an legislator, which prohibited, under the threat of a fine, actions that show an obvious lack of regard for the Constitutional Court and its procedure.

The applicant made three submissions against the Constitutional Court ’ s decision in his case:

1. He sa id that, as a result of this decision, there would be total anarchy in the legal profession . There would no longer be a single system of professional organisation, or a unitarian State. Taxes would not be paid. There would be no control and, as a result, there would be no ethics, discipline, or responsibility.

2. He call ed into question the very constitutionality of the Constitutional Court.

3. He accuse d the Constitutional Court of not regard ing the European Court of Hum an Right s and its jurisprudence as an authority .

In conformity with Recommendation Rec(2000)21 of the Committee of Ministers to m ember S tates on the freedom of exerc ise of the profession of lawyer ( adopted on 25 October 2000 at the 727th meeting of the Ministers ’ Deputies ), “l awyers should respect the judiciary and carry out their duties towards the court in a manner consistent with domestic legal and other rules ...”.

The same idea is elaborated in Schöpfer v. Switzerland ( judgment of 20 May 1998, Reports of Judgments and Decisions 1998-III , pp.1052-53, § 29): “ The Court reiterates that the special status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts. Such a position explains the usual restrictions on the conduct of members of the Bar ... ”.

Moreover, the Court has already held that the courts – the guarantors of justice, whose role is fundamental in a State based on the rule of law – must enjoy public confidence (see De Haes and Gijsels v. Belgium , judgment of 24 February 1997, Reports 1997-I, p p . 233- 34, § 37). Given the key role of lawyers, it is legitimate to expect them to contribute to the proper administration of justice, and thus to maintain public confidence therein.

As in Schöpfer , in the present case the impugned statement of the applicant was not a criticism of the reasoning contained in the decision of the Constitutional Court, but rather defamatory accusations against the judges of that court, as well as the court itself, the highest judicial authority of the State.

In my opinion, the applicant ’ s defamatory statement neither manifested respect for the judiciary, as required by the above - mentioned Recommendation Rec (2000) 21 of the Committee of Ministers, nor an intention “ to contribute to the proper administration of justice, and thus to maintain public confidence therein”, as stipulated in Schöpfer .

Even a superficial analysis of the applicant ’ s affirmations shows that, in his interview, he tried to compensate for the lack of legal argument by attempting to destroy public confidence in the highest judicial authority and to discredit it by hinting at, on the one hand, the legal “ignorance” of the memb ers of the Constitutional Court who did not respect the authority of the European Court of Human Rights or its jurisprudence , and, on the other hand, a neglectful attitude towards professional du ties, which provoked legal chaos and disorder in the Stat e, and which, moreover, destroyed State unity.

I hardly think that the initial intention of the drafters of the Convention for the Protection of Human Rights and Fundamental Freedoms was to ensure under Article 10 the international protection of persons who destroy public confidence in the judiciary, who discredit the highest judicial authority of a country or who defame members of the Constitutional Court.

So, I have no doubt whatsoever that, by his behaviour, the applicant committed acts that showed an obvious lack of regard for the Constitutional Court and its procedure, and thereby was liable to sanction under the Code of Constitutional Procedure . Such behaviour, by definition, cannot be protected by Article 10 of the Convention.

Whether the interference was “proportionate to the legitimate aim pursued”

Before elaborating on the question of the proportionality of the sanction imposed on the applicant, I think it would be pertinent, in order to avoid any misunderstanding, to say a few words about the term “minimum monthly salary” (hereinafter, “minimum salary”) .

Unlike many European countries where minimum salaries reflect the level of subsistence, in Moldova a minimum salary represents a financial unit used for the calculation of the basic salaries of State employees, as well as the calculation of fines.

The “minimum salary” was introduced by Law no . 1432-XIV of 28 December 2000 o n the determination and reassessment of a minimum sal ary . It set the minimum salary at 18 M oldovan lei (MDL) (about 1.125 e uros (EUR) ) and section 7 stipulated that, until the new versions of the Criminal Code, Code of Criminal Procedure, Code of Civil Procedure and Code of Administrative Contraventions were passed, in order to calculate fines , the sum of MDL 18 would be applied.

In accordance with the regulations governing the method of calculation of salaries for those paid from the State budget, this salary should be calculated by multiplying special coefficients, depending on the specific post and the minimum salary. To this basic salary should be added the different supplements provided for by a law. As of 1 April 2001, the Moldova n g overnment set the minimum salary at MDL 100. However, the sum used for the calculation of fines remained unchanged ( MDL 18 ) .

On the question of proportionality, I consider it nec essary to mention the following.

Proportionality implies that the pursuit of the aims mentioned in Article 10 § 2 of the Convention has to be weighed against the need for open discussion of topics of public concern (see, mutatis mutandis , Lingens , cited above, p. 26, § 42). When striking a fair balance between these interests, the Court cannot overlook the major importance of not discouraging members of the public from voicing their opinions on issues of public concern for fear of criminal or other sanctions (see Barfod v. Denmark , judgment of 22 February 1989, Series A no. 149, p.12, § 29).

As already mentioned, the Code of Constitutional Procedure regulates the protection of the dignity of Constitutional Court judges and the provision of appropriate conditions for their activities, breaches of these provisions being sanctioned by a possible maximum fine of up to twenty-five times the minimum salary, that is to say, MDL 450 or about EUR 28.1 0 euros .

A smaller fine of MDL 360 was imposed on the applicant. One may ask if this was too high. Theoretically speaking, this question can be analysed from different points of view:

1. from the point of view of Moldo v an administrative law in general;

2. from the point of view of the legal provisions governing liability for acts showing a “lack of respect towards the Constitutional Court”; or

3. from the point of view of the applicant ’ s financial situation.

I will now briefly analyse the proportionality of the sanctions imposed on the applica nt from these three view points.

The Code of Administrative Contraventions provides different forms of punishment, including short- term arrest and fines. As regards fines, Article 26 of the Code stipulates that, in principle, for different types of contravention, citizens are liable to fines of up to fifty times the minimum salary and public officials of up to 300 times the minimum salary. In certain situations, the fine can even reach 3 , 000 times the minimum salary. Bearing in mind that under domestic law the Chairman of the Bar is a public official, in principle, he could in certain situations be sanctioned by a fine of up to 300 or even 3 , 000 times the minimum salary, depending on the nature of the contravention. In this context, therefore, I consider that the sanction in the present case was , if not symbolic, at least not excessive.

As regards general legal provisions, the sanctions for acts showing a lack of respect towards the courts are governed by Article 200/7 of the Code of Administrative Contraventions, which envisages a fine of up to twenty-five times the minimum salary or ad ministrative arrest for up to fifteen days. Under the Code of Constitutional Procedure , similar acts committed against the Constitutional Court are punishable by a fine only. So, comparing the general provisions with the sanction in the present case, the latter can in no way be considered to have been a “discouraging” penalty.

Bearing in mind the principle of the individualisation of punishments, the most important way to determine whether the sanction imposed on the applicant was proportionate is by comparing the amount of the fine with the applicant ’ s income. Thereby one can assess whether the punishment was of a “discouraging” nature.

In my view, this matter is crucial given the following example: a MDL 360 fine for a person who earns, say, MDL 300 per month is quite a severe punishment, but for a person earning MDL 3 , 000 per month it would be a mild sanction. For this reason, I would have solicited additional information concerning the applicant ’ s income. As the Chamber does not possess this information, I can only compare the level of the present fine with the general figure concerning the general standard of living in Moldova, namely MDL 1 , 000 per month. It seems unlikely to me that the Chairman of the Bar would be below this level. So, if one compares the amount of the fine imposed on the applicant with the average monthly salary , one can see tha t the amount of the fine is two- and - a - half times less. This demonstrates once again that the penalty in the present case was not excessive and can be considered to have been proportionate.

Whichever approach one takes, one is led to the conclusion that the respondent State , by punishing the applicant for having been disrespectful towards the Constitutional Court, did not exceed the limits of proportionality.

To sum up in the light of the above arguments, I do not find any violation of the applicant ’ s rights under Article 10 of the Convention.

[1] 1. The article included the following: “The recent judgment of the Court of Appeal is a strange example of the blindness which sometimes descends on the best of judges. The legislation of 1960 and thereafter has been rendered virtually unworkable by the unrealistic, contradictory and, in the leading case, erroneous, decisions of the courts, including the Court of Appeal. So what do they do? Apologise for the expense and trouble they have put the police to? Not a bit of it.”

[2] . R. v. Metropolitan Police Commissioner, ex parte Blackburn (no.2) [1968] 2 All E ngland Law R eports 320