JOINT DISSENTING OPINION OF JUDGES Å IKUTA, PARDALOS AND GRIÈšCO

1. To our regret, we cannot agree with the majority ’ s finding that there has been a violation of Article 6 § 1 of the Convention in the present case, which seems to be the first one to examine certain guarantees provided for by that provision in relation to the immunity enjoyed by the Head of one of the Contracting States within the national jurisdiction of the State concerned.

I. Preliminary remarks

2. The applications lodged with the Court originated in two separate sets of civil proceedings commenced at domestic level by two claimants, who were politicians at the time of the events. The applicants complain of an interference with their right of access to a court on the grounds that the national courts did not examine on the merits the civil actions they had brought against the then President of the Republic of Moldova to protect their honour, dignity and professional reputation. The courts had relied on the latter ’ s immunity in respect of opinions expressed in the exercise of his mandate on matters and events of public life.

3. Taking into account the specific circumstances of the instant case, we will concentrate our reasoning on the conformity of the civil proceedings and outcome of the judicial solutions adopted in the applicants ’ cases with certain procedural guarantees provided for by Article 6 § 1 of the Convention.

II. As regards the adequate reasoning of the national courts ’ decisions

1. Whether the national courts issued the appropriate judicial acts

4. In the Republic of Moldova, in accordance with valid legislation and judicial practice, a ruling of the first-instance court in civil cases is issued in the form of a judgment ( hotărîre ) where the case is dealt with on the merits and in the form of a decision (încheiere) where it is not. The court is bound by the terms of Article 14 of the Code of Civil Procedure (hereinafter “the CPC”) to adopt the appropriate judicial act. In other words, it is not allowed to substitute a judgment with a decision and vice versa (see paragraphs 14 and 16 of the judgment).

5. The requirements for the structure and content of judgments are wider than those for decisions, which basically address a procedural issue. Thus, while in the former case the courts will give their views on the whole spectrum of the circumstances and evidence on the basis of which the case is examined on the merits (Art. 239 CPC), in the latter case the court ’ s examination is confined to the matter which prevents examination of the case on the merits, and the reasons determining the relevant court ’ s decision with reference to the governing law (Art. 270 CPC) are stated. In other words, by its juridical nature, a decision is presumed to be more concise than a judgment .

6. An example of that is a decision striking out a case on grounds of a procedural impediment which does not allow it to be examined in civil proceedings (Art. 265, para. 1, item a) CPC). In a situation like the present one, for instance, where the defendant enjoys judicial immunity, the domestic courts not only could not, but did not have the right to examine the merits.

7. That regulation by the national legislation of the structure and content of judicial acts is fully consonant with the established case-law of the Court, which affords the Contracting States a wide discretion regarding legal provisions, practice and the courts ’ tradition of issuing judicial acts (see, amongst other authorities, Hiro Balani v. Spain , 9 December 1994, § 27, Series A no. 303 ‑ B, and Ruiz Torija v. Spain , 9 December 1994, § 29, Series A no. 303 ‑ A).

8. We therefore consider that in the applicants ’ cases the domestic courts properly chose the correct judicial act to be issued, namely, not judgments on the merits, but decisions striking the cases out of the list on the ground that the President enjoyed immunity and could not be held responsible for opinions expressed in the exercise of his mandate on matters and events of public life.

9. In this connection we would also point out that when assessing compliance with the above-mentioned standards, it is not the Court ’ s task to substitute itself for the competent domestic authorities in determining the most appropriate means of regulating access to justice, nor to assess the facts which led the domestic courts to adopt one decision rather than another. The Court ’ s role is to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation and ascertain whether the consequences of those decisions were compatible with the Convention (see Brualla Gómez de la Torre v. Spain , 19 December 1997, § 32, Reports 1997 ‑ VIII, and Malahov v. Moldova , no. 32268/02, § 29, 7 June 2007). It therefore remains to be determined whether that outcome of the judicial proceedings at national level met the requirements of a fair trial guaranteed by Article 6 of the Convention.

2. Whether the decisions in the applicants ’ cases comply with the “clarity” test

10. According to the Court ’ s established case-law reflecting a principle linked to the proper administration of justice, judicial acts issued by national courts must state reasons (see Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no.288, and García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 ‑ I).

11. At the same time, however, we would emphasize that the nature of the judicial act in question is important in determining the extent to which the duty to give reasons applies in the specific circumstances of the case (see Rolf Gustafson v. Sweden , 1 July 1997, § 48, Reports 1997 ‑ IV; Higgins and Others v. France , 19 February 1998, § 42, Reports 1998 ‑ I; and Georgiadis v. Greece , 29 May 1997, § 41-43, Reports 1997 ‑ III). According to the Court ’ s case-law, the courts are not obliged to give a detailed answer to every argument, nor is the European Court called upon to examine whether arguments were adequately addressed (see Perez v. France [GC], no. 47287/99, § 81-82, ECHR 2004 ‑ I, Helle v. Finland , 19 December 1997, § 55, Reports 1997 ‑ VIII; Van de Hurk, cited above, § 61; and Ruiz Torija v. Spain, cited above, § 29).

12. In the light of the above-mentioned general principles established in the Court ’ s case-law, and in view of the nature of the judicial acts issued in the applicants ’ cases and the specific circumstances relating to the immunity enjoyed by the head of State, one of the main questions is whether the extent to which the domestic courts gave reasons for the judicial solutions adopted complied with the requirements of a fair trial. In that connection the Court has already had occasion to develop criteria in its case-law providing an answer to this question, namely, the test of “clarity” of judgments, according to which a judicial act can be considered sufficiently reasoned if the parties can understand the reasons on which the judicial act is based, so as to be able to present their counter-arguments in the higher courts (see, for instance, Hadjianastassiou v. Greece , 16 December 1992, § 33, Series A no. 252).

13. Analysing the applicants ’ submissions in the light of that test it can be observed that they never complained that they had not understood the reasons why the national courts had not examined their cases on the merits and discontinued the proceedings. Accordingly, in our view, the relevant judicial decisions met the requirements of the “clarity” test with regard to adequate reasoning and are thus in keeping with the principles of a fair trial in this respect (see, conversely, Karakasis v. Greece , no. 38194/97, § 27, 17 October 2000, and Annoni di Gussola and Others v. France , nos. 31819/96 and 33293/96, § 58-59, ECHR 2000 ‑ XI).

3. Whether the impugned statements were made by the President in “exercise of his mandate”

14. According to the judgment, the domestic courts did not make “any ... reference to whether the President had expressed his opinion within the exercise of his mandate, referring only to matters and events relating to “public life” (see paragraph 49 of the judgment).

15. We fail to see how it could be stated that the national courts made no reference to this subject, when it clearly emerges from their decisions (see paragraphs 9 and 10 of the judgment) that, referring to the relevant constitutional provisions, the courts stated that the President of the Republic of Moldova enjoyed immunity and could not be held legally responsible for the opinions expressed in the exercise of his mandate. This is followed by the interpretation given to that statement, with regard to which, we would like to point out, the judgment considered that the domestic courts “... did not make any reference ...”. To that end the national courts, referring to the decision of the Constitutional Court of 16 February 1999 (see paragraph 15 of the judgment), stated that “opinions expressed in the exercise of his mandate” meant the views, opinions and convictions expressed in the exercise of his mandate in respect of matters and events of public life. In one of the two decisions, the court was even more explicit on this issue, finding that the applicants ’ claims related to the President ’ s opinions “... expressed by him publicly in a programme in the exercise of his mandate” (see paragraph 10 of the judgment).

16. Turning to the judgment, we observe that, despite the criticism expressed in relation to the decisions of the national courts, there is no suggestion that these were arbitrary or had any other shortcoming such as to make them conflict with the procedural gua rantees provided for by Article 6. We are ready to develop this subject because we consider that the national courts ’ decisions in the applicants ’ cases do not display any arbitrariness and that there are no reasons which could lead to a different conclusion.

III. As regards the proceedings “as a whole”

17. Taking into account the specific circumstances of this case, and with the aim of providing a proper assessment of compliance by the domestic proceedings with the principles of a fair trial, it would have been useful to assess them “as a whole”. To our regret, no attempt was made to apply this test here, despite the fact that in a very recent case, bearing certain similarities to the present one, this Court did apply it (see Andrášik and Others v. Slovakia , nos. 16857/11 and 32336/11, § 51, 55 and 60 , 9 September 2014).

18. Thus, in assessing the domestic proceedings from this angle (see, mutatis mutandis , Mérigaud v. France , no. 32976/04, § 77, 79, 24 September 2009, and García Ruiz v. Spain , cited above, § 29-30) it will be observed that the applicants had the benefit of adversarial proceedings, were able at different stages of those proceedings to adduce arguments which they considered relevant to their case, had the opportunity to challenge the outcome of the judicial proceedings by using appropriate avenues of appeal,and so on (see, conversely, Barberà , Messegué and Jabardo v. Spain , 6 December 1988, § 89, Series A no. 146; Georgiadis v. Greece , cited above, § 40; and Buzescu v. Romania , no. 61302/00, § 74, 24 May 2005 ). T hat further illustrates the fairness of the judicial proceedings at the national level.

IV. As regards alternative means of redress

19. According to the judgment, the applicants did not have at their disposal any effective means of countering the accusations made against them by the head of State (see paragraphs 53 and 54 of the judgment). We cannot agree with that conclusion because it conflicts with the national law relied on by the applicants and other information available to the Court in the instant case.

20. The applicants based their claims, inter alia , on Article 16 of the Civil Code, the relevant parts of which are worded as follows:

“ Article 16. Protection of honour, dignity and professional reputation

(1) Everyone has the right to respect for his or her honour, dignity and professional reputation.

(2) Everyone has the right to demand the retraction of information damaging to his or her honour, dignity and professional reputation unless the person who has disseminated such information proves that it corresponds to reality. ...

(7) Anyone whose legally protected rights and interests are damaged by a mass media publication has the right to publish his or her reply in that mass media at the latter ’ s expense ”. ...

For the purposes of our opinion, we would like to draw attention to the right of reply, which is stipulated in paragraph 7 of that Article.

21. As stated in the judgment, t he second applicant made only one attempt to obtain a right of reply from the broadcasting channel on which the head of State had made the impugned statements, to no avail (see paragraphs 33 and 53 of the judgment). There is nothing in the judgment or the case file to indicate that the second applicant initiated judicial proceedings, for instance, against the refusal of the television channel to offer her the opportunity to enforce her right of reply.

22. The Chamber judgment does not say anything about the first applicant ’ s attempt to obtain a right to reply. However, it can be seen from the copy of the domestic court ’ s file attached to the Government ’ s observations in the case that in his initial statement of claim the first applicant also named the relevant television station as second defendant and asked the court to order it to offer airtime in order to reply to the statements in question. However, shortly afterwards the first applicant withdrew his claims against the television station, asked the court to discontinue the proceedings in the case in that regard and maintained only his claims against the President. The court allowed the first applicant ’ s request and discontinued the proceedings against the television channel with regard to the claims concerning enforcement of his right of reply.

23. In the reasons for their conclusion regarding the lack of alternative means of redress, the majority make reference to Manole and Others v. Moldova (see paragraph 54 of the judgment), which, in our view, cannot constitute a precedent in the instant case.

24 . To begin with, the facts do not fit as the impugned statements were broadcast by two private television stations and not by State television, so the findings in Manole and Others v. Moldova concerning the administrative practice of censorship on State television are totally irrelevant to the instant case. Secondly, as we have already mentioned above, (i) the national legislation provides for a number of means of redress in cases of defamation of honour, dignity and professional reputation, (ii) these means are not illusory and can be achieved in practice, as was actually demonstrated by the first applicant, and the fact that the proceedings did not yield any result cannot be blamed on the national authorities and, lastly, (iii) the second applicant never challenged the television station ’ s refusal to offer her airtime for the right of reply.

V. As regards the proportionality between the interference with the right of access to a court and the legitimate aim pursued

25. The applicants agree that the restriction of their right of access to a court was prescribed by law and pursued a legitimate aim, namely, to allow the President to perform his tasks properly and without undue interference. There are no disputes between the parties concerning the interpretation by the Constitutional Court of Article 71 of the Constitution or with regard to the fact that the domestic courts extended that interpretation to the case of the President ’ s immunity (see paragraphs 9,10 and 15 of the judgment). An assessment must therefore be made of the proportionality between the limitation on the applicants ’ right of access to a court and the aim sought to be achieved ( see, amongst other authorities, Fayed v. the United Kingdom , 21 September 1994, §§ 71, 75, 77, 81, 82-83, Series A no. 294 ‑ B, and Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999 ‑ I ).

26. As quoted in the judgment, “... the President enjoys immunity. However, in so far as his opinions are concerned, the immunity is not absolute: it extends only to opinions expressed in the exercise of his mandate ” (see paragraph 46 of the judgment). Then, later on, it is noted that “... the immunity afforded to the President was perpetual and absolute. Thus, the applicants could not have had access to the courts even after the expiry of his mandate. Moreover, his immunity against libel actions could not be lifted” (see paragraph 50 of the judgment).

27. On the basis of those two diametrically opposed statements, neither of which, in our opinion, exactly corresponds to the national legislation or to the Constitutional Court ’ s interpretation of the issues, it was concluded that the immunity enjoyed by the head of State was a blanket one (see paragraph 52 of the judgment). Then, combined with the alleged lack of alternative means of redress, the judgment ultimately finds that there has been a violation of Article 6 § 1 of the Convention on account of a disproportionate restriction of the right of access to a court (see paragraphs 54 and 55 of the judgment).

28. Having regard to the subsidiary role of the Court, it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see, among other authorities, Bulut v. Austria , 22 February 1996, § 29, Reports 1996 ‑ II; Brualla Gómez de la Torre v. Spain, cited above, § 31; Fayed v. the United Kingdom, cited above, § 81; and, mutatis mutandis , Tolstoy Miloslavsky v. the United Kingdom , 13 July 1995, § 59, Series A no. 316 ‑ B). We therefore consider that the interpretation of the legal concept of presidential immunity by the national courts in the instant case is fully in line with the requirements of a fair trial as stipulated in Article 6 of the Convention.

29. Thus, according to the Constitution (see paragraph 13 of the judgment), the President represents the State and is the guarantor of national sovereignty, independence and the unity and territorial integrity of the nation. In this capacity the President enjoys judicial immunity, including in respect of opinions expressed in the exercise of his mandate on matters and events of public life. In other words, the legitimate aim of the immunity granted to the President is to ensure the unhindered exercise of his role as guarantor of the constitutional order, particularly in terms of freedom of expression on matters or events of public life (see the Constitutional Court ’ s interpretation of Article 71 of the Constitution – paragraph 15 of the judgment) .

30. In our view, the words “public life” , used by the Constitutional Court and referred to in the decisions of the national courts, are key words, which indicate that the immunity provided to the President under the Constitution is not a blanket one, but on the contrary embodies, inter alia , a concrete extension to the opinions expressed in the exercise of the mandate to those which relate to public life.

31. In its content and application, presidential immunity in the Republic of Moldova fully corresponds to the generally recognised principles relating to restrictions on the right of access to a court as a consequence of immunity granted by the Contracting States to high-ranking officials [1] .

32 . While it is true that the Constitution does not literally enshrine the right of the President to grant interviews to the media, it cannot be denied that there is no prohibition in that respect. Indeed it would be strange, to say the least, to assert that the President, as head of State, is not allowed to express via the media his opinions on matters of public interest which he considers important in terms of his constitutional status. It would also be strange, not to say ridiculous, to maintain that there is an exhaustive list of matters of public interest which the President does or does not have the right to address.

33. In this context it should be underlined that the President ’ s statements did not contain any comments on the private life of the applicants and did not address them as mere individuals, but referred to them as politicians and persons well known within the public and political arena of Moldova. Incidentally, the applicants did not challenge that point in their submissions and did not lodge any complaints concerning defamation which would raise potential issues under Article 8 of the Convention. Lastly, there is nothing in the file to support the conclusion reached by the majority that there might have been a personal quarrel between the President and the first applicant, other than the unsubstantiated statements of the latter (see paragraphs 33 and 44 of the judgment) .

34. Accordingly, in their capacity as politicians the applicants fall within the category of persons open to close scrutiny of their acts, not only by the press but also – and above all – by bodies representing the public interest, thus the risk of some uncompensated damage to reputation is inevitable (see Fayed v. the United Kingdom , cited above, § 75, 81; Brasilier v. France , no. 71343/01, § 41, 11 April 2006; and A xel Springer AG v. Germany (no. 2) , no. 48311/10, § 54, 10 July 2014). In that connection we would point out that the existence in the national legislation of alternative means of redress, related to the right of reply in cases of potential defamation, could serve to counterbalance the damage alleged by the applicants (see A. v. the United Kingdom , no. 35373/97, § 86-89, ECHR 2002 ‑ X). However, it is necessary to emphasize that both of them failed to make use of those means, as we have already mentioned in the present opinion.

35. For the above reasons, it follows that the President ’ s immunity from suit in the Republic of Moldova cannot be said to exceed the margin of appreciation allowed to Contracting States and that in the particular circumstances of the present case the restriction on the applicants ’ right of access to a court was not disproportionate to the legitimate aims pursued and, accordingly, there has been no violation of Article 6 § 1 of the Convention.

[1] See, for example, Mattias Kloth: “Immunities and the Right of Access to Court under Article 6 of the European Convention on Human Rights”, in International studies in human rights, Vol.103 , Martinus Nijhoff Publishers, Boston, 2010, p p .107-32.