PARTLY DISSENTING OPINION OF JUDGE BONELLO

1. In this case the Court could have voiced its views on the pathology of an administration of justice. It did not.

2. The applicant newspaper Flux submitted complaints relating to two violations of Article 6 of the Convention. The majority declared inadmissible the first complaint on the lack of independence and impartiality of Judge I.M. A second complaint regarding the alleged failure of the domestic courts to give reasons for their decisions was disposed of by the majority with a finding that this complaint did not raise an issue separate from the freedom of expression complaint under Article 10, and that consequently the Court did not consider it necessary to examine it separately.

3. As the applicant ' s first Article 6 complaint was decl ared inadmissible not by a judg ment but by a separate ' decision ' of the Court, I am restrained from expressing if and why I agreed or disagreed with that decision, finding some comfort in the reflection that it is not the first time that courts trip over semantics on their way to justice. This restraint does not apply to the second complaint which was dealt with by a judgment; this enables me to elaborate and make public the reasons for my dissent.

4. I find it hard to agree with the majority ' s conclusion that a claim of violation of fair-trial guarantees (deriving from an alleged failure by the domestic courts to give reasons for their decision) raises no separate issue from that of a violation of freedom of expression. The domestic courts had condemned the applicant newspaper to pay damages, plus costs, and to make an apology to a leading government politician. The Court unanimo usly found these domestic judg ments to have been in violation of the applicant ' s freedom of expression. This ' freedom of expression ' finding surely determined an issue totally distinct from th at whether the applicant ' s fair- trial guarantees had been respected or not, and in my view this separate complaint should have been considered and determined separately.

5. The Court enjoys unquestionable discretion to refrain from deciding complaints which, although admissible and meritorious, do not raise issues substantially different from others in which a violation of some Convention guarantee has already been found. By rule of thumb, it can safely be said that if a graver violation has previously been established, the Court would rightly find it futile to determine also a lesser violation arising from the same facts.

6. In the circumstances of the present case I do not consider a po ssible infringement of the fair- trial guarantees to be meaner in weight or flimsier in value than a breach of freedom of expression. The very particular facts on which this application is based tend to indicate that one core issue to be determined should have been whether the Article 6 fair-trial guarantees had been respected or not.

7. The applicant newspaper claims the domestic courts failed to give reasons on which to base its conviction for libel – not accidentally, not through some genuine pressure-of-work oversight, but inasmuch as the judge who ruled against the applicant lacked independence and impartiality “because he was a friend of Mr Stepaniuc (the plaintiff in the libel proceedings) and had been appointed president of the Buiucani district court by the Communist party parliamentary group” whose leader was the plaintiff in the defamation proceedings against the applicant newspaper.

8. The applicant added that in other defamation cases between Flux and representatives of the government, judge I.M. had always ruled in favour of the latter and awarded them the maximum amount provided for by law. By “a strange coincidence” the same judge examined the majority of defamation actions brought by his friend Mr Stepaniuc . All the claims of Mr Stepaniuc had always been upheld by judge I.M. even in those lawsuits in which the plaintiff had failed to pay court fees, which fact, by itself, should have rendered the action procedurally inadmissible. Nor did the fact that the plaintiff consistently failed to appear for the hearing of his court cases have any negative impact on his pending cases – they were all the same examined and determined by judge I.M. usually at the first hearing.

9. These are the plaintiff ' s allegations of fact to explain why judge I.M. could not be considered independent and impartial and why he failed to give reasons for finding the applicant newspaper liable to maximum libel damages.

10. These allegations on their own, if proved, would be worrying indicators of a questionable detachment of the presiding judge from the litigants – or from one of them. The alert however sounds louder still, as the alleged failure of judge I.M. to give reasons for his decision (a decision the Court unanimously found to have been in violation of the Convention) has to be assessed against a wider historical backdrop. If, as alleged, this failure of the presiding judge marches hand in hand with systemic evidence of feeble guarantees for the independence and impartiality of the judiciary as a whole, the alert should have sounded more inexorably.

11. I am attaching as an appendix brief summaries of several external reports on the state of the judiciary in Moldova , all highly negative and startling. For reasons of balance I wanted to include reports from other authoritative sources denying that the independence of the judiciary in Moldova is a stretcher case. I found none.

12. It is, in my view, against these seemingly universal concerns that the alleged failure by judge I.M. to give reasons should have enticed the Court to take some note. The Court could have asked itself whether a reluctance to reason out an unreasonable decision is the minimum to expect from a self-respecting, hire and fire judiciary. The Court could, or should, have investigated whether this was ' telephone justice ' in which the telephone was pointless and the justice hilarious.

13. I find it self-delusory to harness impressive formulas to avoid facing core issues of the administration of justice, and then to feel fulfilled by one dexterous sweep of the debris under the carpet. No doubt irrationally, I believe more than I make-believe. Strasbourg , I thought, has a role to play in fortifying standards, well beyond that of seeking refuge behind legal fictions. In the long run they only energize the determination of those with a talent for finding the independence of the judiciary amusing. Those bent on making the independence of the judiciary obsolete know they need look no further.

14. I would have expected the Court to pounce on this opportunity to give hope to the people of Moldova . To let out some timid whispers for justice politically untainted. I would have expected the Court to have thor oughly investigated if the judg ment that condemned the applicant was supported by good reasons or by any reason at all. I would have been gratified had the Court asked how often judge I.M., and other candidates for the heroes of the resistance award, found against the ruling party or its exponents in politically sensitive lawsuits. It would seem that the administration of justice in Moldova respects a number of precepts. I looked for them in Article 6 and could find none of them there.

15. All this alarms me profoundly. I have this old-fashioned prejudice against judges approximately impartial. I respond with inconstant passion to the credo of some politicians that judges fit nicely everywhere, but best of all in their pockets. I find bland, if not inconsequential, the doctrine that justice must not only be done, but should manifestly be seen to be done. Far more relevant, to me, is the doctrine that, for control-freaks to rule undisturbed, injustice should not only be done, but should manifestly be seen to be done.

16. Judge I.M. ' s career crashed - from minor district judge to President of the Supreme Court in a span of time shorter than it takes to say ' the party is always right ' . In an otherwise bleak panorama, it is comforting to note that the sacrifice of judges who align their energies with the welfare of the ruling political class, does not always cripple their careers.

17. I thought this was the right time for the Court to start panicking. This a self-evident opportunity to detox an administration of justice. Instead I had to witness the Court allowing the Moldovan judiciary the widest margin of depreciation.

APPENDIX

1. According to reports provided by the applicant and not contested by the respondent state, at the relevant time there were a series of nominations to the bench based on loyalty to the ruling party, the dismissal of the Ombudsman, and attempts to limit the independence of the Constitutional Court . The Moldovan Association of Judges had recorded that the government had started a ' mass cleansing ' of the judicial sector. Seven judges had been ousted outright and the President of the Republic failed to prolong the mandate of 57 other judges. The Chairman of the Association of Judges declared publicly to the media the “senior government officials were pressurising judges to issue rulings that favoured government bodies”.

2. By virtue of a constitutional amendment, the President was given the right to appoint judges and select the chairs of courts, their deputies and lower-ranking judges for four year terms, at the recommendation of the Higher Council of Magistrates. Parliament (by political majority vote) was given the power to appoint for four year terms members of the Supreme Court, including its president, the prosecutor-general and the minister of Justice.

3. Another report, the U.S. Department of State country report on Moldova for 2003, underlined that “official pressure and corruption of judges remained a problem ... observers frequently charged that other courts were corrupt or politically influenced ... political factors have played a large part in the reappointment of judges”.

4. The report of the Council of Europe ' s Commissioner for Human Rights (Com D+1 (2003) 7) has made no mystery of the fact the “the independence of the judiciary in Moldova is a serious worry”. It pointed out the exercise of powers of appointment, reappointment and dismissal of judges vested in the President of the Republic as “a serious interference with the independence of the judiciary”. The Commissioner ' s office delegation had sought in vain to establish what guarantees apply in the procedure leading to the non re-appointment of judges”. The report concluded that “it follows that the present presidential practice on appointment and re-appointment of judges does not provide sufficient rule of law guarantees and seems therefore arbitrary ... It is thus urgent that the presidential practice be revised in order to safeguard judicial independence and the rule of law”.

5. Similarly, the International Commission of Jurists painted the bleakest of pictures on the functioning of the Judiciary following a joint mission to Moldova with the Centre for the Independence of Judges and Lawyers in February 2004. Its report, dated November 30, 2004, slammed virtually everything relating to the appointment, tenure of office and removal of judges; it found these to be wholly out of line with basic minimum European guarantees for the independence and impartiality of the judiciary, and noted the massive return of “telephone justice” by the executive and the legislative to control the decisions of judges.

6. In the same vein was the statement of the International Helsinki Federation for Human Rights on “Violations ' of the Freedom of the Media and the Independence of the Judiciary in Moldova” dated June 10, 2003, which claimed that the Federation was “deeply concerned about the ... gross violations of the freedom of the media and the independence of the judiciary ... the judiciary continues to face excessive political intrusion, the status of judges is insecure due to the re-appointment procedure, the highly questionable overhaul of the judiciary system and precedents of politically motivated extralegal dismissal of judges ... the abolition of the guarantees of a life term for judges and the large number of removals also put additional pressure on the judges ... a basically uncritical mode of operation resulting in further possibilities for executive control over the judiciary and infringements of the separation of powers”.

7. A wider spectrum of non-domestic observations on the independence and impartiality of the judiciary in Moldova is to be found in the First Annex to the I.C.J. report mentioned above.