CASE OF AMIHALACHIOAIE v. MOLDOVA

1. The case originated in an application ( no. 60115/00) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Gheorghe Amihalachioaie (“the applicant”), on 14 July 2000.
2. The applicant was represented before the Court by Mr A. Tănase, of the Chişinău Bar. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Pârlog of the Ministry of Justice.
3. In his application, Mr Amihalachioaie alleged a breach of his right to freedom of expression, as guaranteed by Article 10 of the Convention, in that he had been fined for criticising a Constitutional Court decision on the constitutionality of legislation regulating the legal profession.
4. The application was initially allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court).
5. On 1 November 2001 the Court changed the composition of its Sections ( Rule 25 § 1). This case was assigned to the newly composed Second Section ( Rule 52 § 1). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
6. By a decision of 23 April 2002, the Chamber declared the application partly admissible.
7. The applicant and the Government each filed observations on the merits of the case (Rule 59 § 1).
I. THE CIRCUMSTANCES OF THE CASE
8. The applicant is a Moldovan national who was born in 1949 and lives in Chişinău (Moldova). He is a lawyer and Chairman of the Moldovan Bar Council.
9. In 2000 a group composed of members of parliament and the Moldovan Ombudsman sought a ruling from the Constitutional Court that the Lawyers ( Organisation of the Profession ) Act (Law no. 395-XIV ) was unconstitutional. The Act laid down, inter alia, that all lawyers practising in Moldova should be members of the Bar Council, a national association of all lawyers from the local Bars. They argued that compulsory membership of the Bar Council was contrary to the right of freedom of association guaranteed by the Moldovan Constitution.
10. After consulting, inter alia, the Bar Council, which expressed the view that the Act was consistent with the Constitution, the Constitutional Court held in a decision of 15 February 2000 that the provisions making membership of the Moldovan Bar Council compulsory were unconstitutional.
11. The applicant criticised the Constitutional Court ’ s decision in a telephone interview he gave to A.M., a journalist on the Economiceskoe Obozrenie ( “Economic Analysis”) newspaper.
12. In the February 2000 edition of the newspaper, A.M. published an article on the debate which the Constitutional Court ’ s decision of 15 February 2000 had sparked off among lawyers. He gave the following account of his telephone interview with the applicant:
“ ... After the Constitutional Court ’ s decision was made public, Economiceskoe Obozrenie put a series of questions to the Chairman of the Bar Council, Mr Gheorghe Amihalachioaie. His comments are tinged with emotion, no doubt because they were made in the heat of the moment:
‘ The Constitutional Court ’ s decision will produce total anarchy in the legal profession ’, said Mr Amihalachioaie. ‘ You will see what will happen over the course of the next year. From now on, we no longer have a single system for organising the profession or a unitarian State. We have become accustomed to this – it is easier to live and work in chaos. Taxes are not paid, there is no supervision and, consequently, no ethics, no discipline and no responsibility.
In view of this, the question is whether the Constitutional Court is constitutional. In 1990 the United Nations adopted its Basic Principles on the Role of the Bar, which are fully guaranteed by our law. The legal profession is independent the world over. In Moldova it is subordinate to the executive, that is to say the Ministry of Justice. This is a serious breach of fundamental democratic principles.
The Constitutional Court did not take into account the judgments of the Strasbourg Court referred to by the Bar Council in its observations. The judges of the Constitutional Court probably do not regard the European Court of Human Rights as an authority. Am I to assume that they have acquired more experience in five years than the Strasbourg judges in fifty? We shall certainly be informing the Council of Europe that Moldova does not comply with the case-law or requirements of the European Court of Human Rights. ’
According to Mr Amihalachioaie, lawyers have always been regarded as being at the forefront of the legal profession : ‘ Despite everything, even after the Constitutional Court ’ s decision, the body of lawyers remains a force. ’ ... ”
13. In a letter of 18 February 2000, the President of the Constitutional Court informed the applicant that his remarks as reported in the Economiceskoe Obozrenie newspaper could constitute a lack of regard for the court within the meaning of Article 82 § 1 ( e) of the Code of Constitutional Procedure and invited him to submit written observations on this point within ten days.
14. On 28 February 2000 the applicant submitted the requested observations. He said that he had only learned of the publication of his remarks from the letter of 18 February 2000 and confirmed having had a long telephone conversation with the journalist A.M. about the decision of 15 February 2000. He stressed, however, that his remarks had been misquoted and largely taken out of context. He added that, had A.M. submitted the article to him prior to publication, he would have checked the presentation of his remarks carefully and, accordingly, assumed full responsibility for them.
15. On 6 March 2000 the Constitutional Court issued a final decision pursuant to Articles 81 and 82 of the Code of Constitutional Procedure in which it imposed an administrative fine on the applicant in the sum of 360 Moldovan lei ( equivalent to 36 euros).
It found that the applicant had made the following comments in the aforementioned interview : “ The Constitutional Court ’ s decision will produce total anarchy in the legal profession. ... the question is whether the Constitutional Court is constitutional. ... The judges of the Constitutional Court ... do not regard the European Court of Human Rights as an authority. ” It found that these comments showed a lack of respect on the applicant ’ s part for the Constitutional Court and its decision.
16. As the Constitutional Court ’ s decision was final, the applicant paid the sum of 360 lei into the Ministry of Finance ’ s account on 7 July 2000.
17. The relevant provisions of the Code of Constitutional Procedure read as follows:
“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.”
“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 manner 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.
18. Section 4 of the Press Act (Law no. 243-XIII of 26 October 1994 ) provides:
“ Publishers of periodicals ... shall have a discretion as to the documents and information they choose to publish, but shall have regard to the fact that, since it carries with it duties and responsibilities, the exercise of these freedoms is subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
19. The applicant considered that his conviction constituted an unjustified interference with his right to freedom of expression. He relied on Article 10 of the Convention, which provides:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for maintaining the authority and impartiality of the judiciary.”
20. The applicant submitted that the interference was not “prescribed by law” or “necessary in a democratic society”.
21. He argued, firstly, that Article 82 of the Code of Constitutional Procedure did not satisfy the requirement of foreseeability of the law, as it failed to identify with sufficient clarity the acts which would give rise to liability to an administrative fine. In particular, it was difficult to determine from the wording of Article 82 whether it covered only acts performed at Constitutional Court hearings or all acts showing a lack of regard for the Constitutional Court or its procedure.
22. He also said that he had not expressed any general criticism of the Constitutional Court or its judges, but merely disapproval of its decision, as part of a broad debate on the organisation of the legal profession. Accordingly, he contended that the penalty imposed on him had not been necessary in a democratic society.
23. The Government accepted that there had been an interference with the applicant ’ s right to freedom of expression, but argued that it satisfied the requirements of paragraph 2 of Article 10 of the Convention.
They submitted at the outset that Article 82 of the Code of Constitutional Procedure met the requirement of foreseeability when read in the light of Article 81, which laid down that the Constitutional Court could take measures that encroached upon freedom of expression in order to protect the dignity of its judges and to secure appropriate conditions for the exercise of constitutional jurisdiction.
In view of his position and professional experience, the applicant ought to have been aware that the authority of the Constitutional Court had to be respected not only at hearings, but at other times too.
24. The Government maintained that the interference was justified by the need to guarantee the authority and impartiality of the judiciary and was necessary in a democratic society as the applicant had gone beyond the bounds of acceptable criticism by making remarks about both the Constitutional Court and its judges that were defamatory and offensive. They stressed that, as a lawyer, the applicant had a duty of discretion towards the judiciary and so enjoyed more limited freedom of expression.
25. The Court reiterates that a “law” within the meaning of Article 10 § 2 of the Convention is a norm that is formulated with sufficient precision to enable the citizen to regulate his conduct and to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. However, those norms need not be foreseeable with absolute certainty, even though such certainty is desirable, as 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 ( see The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 31, § 49, and Hertel v. Switzerland, judgment of 25 August 1998, Reports of Judgments and Decisions 1998-VI, pp. 2325 ‑ 26, § 35).
26. The degree of precision depends to a considerable degree on the content of the instrument in issue, the field it is designed to cover, and the number and status of those to whom it is addressed (see Groppera Radio AG and Others v. Switzerland, judgment of 28 March 1990, Series A no. 173, p. 26, § 68).
27. 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 (see Casado Coca v. Spain, judgment of 24 February 1994, Series A no. 285-A, p. 21, § 54).
28. However, as the Court has previously had occasion to say, lawyers are entitled to freedom of expression too and to comment in public on the administration of justice, provided that their criticism does not overstep certain bounds. Furthermore, Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed. In that connection, account must be taken of the need to strike the right balance between the various interests involved, which include the public ’ s right to receive information about questions arising from judicial decisions, the requirements of the proper administration of justice and the dignity of the legal profession ( see Schöpfer v. Switzerland, judgment of 20 May 1998, Reports 1998-III, pp. 1053-54, § 33).
29. While the Contracting States have a certain margin of appreciation in assessing whether such a need exists, it goes hand in hand with a European supervision, embracing both the law and the decisions applying it ( see The Sunday Times v. the United Kingdom (no. 2), judgment of 26 November 1991, Series A no. 217, pp. 28-29, § 50).
30. In performing its supervisory role, the Court has to look at the interference complained of in the light of the case as a whole, including the tenor of the applicant ’ s remarks and the context in which they were made, and determine whether it “correspond[ed] to a pressing social need”, was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” ( see The Sunday Times (no. 2), ibid. , and Nikula v. Finland, no. 31611/96, § 44, ECHR 2002-II).
2. Application of the aforementioned principles to the instant case
31. The Court notes that the applicant was convicted for stating in an “interview” given to a newspaper that the decision of the Constitutional Court “ [would] produce total anarchy in the legal profession ” and that the question therefore arose whether the Constitutional Court was constitutional. He was also convicted for saying that the judges of the Constitutional Court probably “ [ did] not regard the European Court of Human Rights as an authority ”.
Such a conviction may be regarded as an interference with the applicant ’ s right to respect for his freedom of expression, as guaranteed by Article 10 of the Convention.
32. The Court finds at the outset that the interference in question was “prescribed by law”, within the meaning of the second paragraph of Article 10 of the Convention. In that connection, it notes that the issue between the parties in the instant case is whether Article 82 of the Code of Constitutional Procedure, which sets out the acts for which an administrative penalty may be imposed, should be construed broadly or narrowly.
33. The Court notes that the wording of Article 82 contains a general provision that makes anyone showing an obvious lack of regard towards the Constitutional Court liable to a fine.
Although the acts that give rise to liability are not defined or set out with absolute precision in the legislation, the Court finds that in view of his legal training and professional experience as Chairman of the Bar, the applicant could reasonably have foreseen that his remarks were liable to fall within the scope of the aforementioned provision of the Code of Constitutional Procedure.
34. It further considers that the interference pursued a legitimate aim, as it was justified by the need to maintain both the authority and the impartiality of the judiciary, within the meaning of the second paragraph of Article 10 of the Convention. It must now determine whether that interference was “necessary in a democratic society”.
35. The Court notes that the applicant ’ s comments were made on an issue of general interest in the context of a fierce debate among lawyers that had been sparked off by a Constitutional Court decision on the status of the profession that had brought to an end the system whereby lawyers were organised within a single structure, the Moldovan Bar Council, which was an association chaired by the applicant.
36. In that connection, the Court finds that even though the remarks may be regarded as showing a certain lack of regard for the Constitutional Court following its decision, they cannot be described as grave or as insulting to the judges of the Constitutional Court ( see, mutatis mutandis, Skałka v. Poland, no. 43425/98, § 34, 27 May 2003; Perna v. Italy [GC], no. 48898/99, § 47, ECHR 2003-V; and Nikula, cited above, §§ 48 and 52).
37. Furthermore, since it was the press that reported the applicant ’ s comments, some of which the applicant subsequently denied making, the Court finds that it is not possible to hold him responsible for everything that appeared in the published “interview” ( see paragraph 14 above ).
38. Lastly, although the fine of 360 lei (equivalent to 36 euros ) imposed on the applicant is a seemingly modest sum, it nevertheless has symbolic value and is indicative of the Constitutional Court ’ s desire to inflict severe punishment on the applicant, as it is close to the maximum that could be imposed under the legislation.
39. In the light of these considerations, the Court finds that there was no “pressing social need” to restrict the applicant ’ s freedom of expression and that the national authorities have not furnished “relevant and sufficient” reasons to justify such a restriction. Since the applicant has not gone beyond the bounds of acceptable criticism under Article 10 of the Convention, the interference in issue cannot be regarded as having been “necessary in a democratic society”.
40. Consequently, there has been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
41. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
42. The applicant sought an award of 100, 000 euros (EUR) for the non-pecuniary damage he alleged he had sustained as a result of the serious harm caused by the conviction to his reputation as a lawyer and as Chairman of the Bar Council.
43. The Government contended that the amount claimed by the applicant under this head was exorbitant. They added that, in any event, a finding of a violation of Article 10 would provide in itself sufficient just satisfaction.
44. The Court agrees with the Government that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage which the applicant may have suffered.
45. The applicant claimed 2, 000 United States dollars ( EUR 1, 670 ) in respect of lawyer ’ s fees he had incurred before the Court. He produced an agreement on fees he had made with his lawyer, in which it was stipulated that the above sum would only become payable if his application to the Court was successful. He said that it was common practice among Moldovan lawyers to enter into agreements of this type.
46. The Government contested this claim, arguing that the amount sought was excessive and that there was no evidence that the alleged costs had been incurred.
47. It is not for the Court to express a view on the agreement concerning fees. In accordance with its case-law, it must consider whether the costs and expenses claimed were actually and necessarily incurred by the applicant and are reasonable as to quantum ( see Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII). It may have regard in that connection to such matters as the number of hours worked and the hourly rate sought ( see Iatridis v. Greece ( just satisfaction ) [GC], no. 31107/96, § 55, ECHR 2000-XI).
In the instant case, however, the applicant has not produced any evidence in support of his claims. The Court therefore decides not to award any sum under this head.
1. Holds by six votes to one that there has been a violation of Article 10 of the Convention;