CASE OF AMIHALACHIOAIE v. MOLDOVA
Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed
Jean-Paul Costa
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.”