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FOURTH
SECTION
CASE OF
HYDE PARK AND OTHERS v. MOLDOVA
(Application
no. 33482/06)
JUDGMENT
STRASBOURG
31 March
2009
FINAL
30/06/2009
This
judgment may be subject to editorial revision.
In the case of Hyde Park and
Others v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 10 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33482/06) 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 Hyde Park (at that point a non-governmental
organisation) and five Moldovan nationals, Mr Gheorghe Lupuşoru,
Mr Anatol Hristea-Stan, Ms Mariana Gălescu,
Ms Alina Didilică and Mr Oleg
Brega (“the applicants”) on 11 May
2006. On 2 June 2008 the non-governmental organisation Hyde Park
ceased to exist. Its successor, the Hyde Park unincorporated
association, expressed its intention to pursue the application before
the Court.
- The
applicants were represented by Mr A. Postică,
a lawyer practising in Chişinău, and a member of the
non-governmental organisation Promo-Lex. The Moldovan Government
(“the Government”) were represented by their Agent, Mr
Vladimir Grosu.
- The
applicants alleged, in particular, a breach of their right to freedom
of assembly and to a fair trial.
- On
4 April 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- At
the time of the events giving rise to the application, Hyde Park (the
first applicant) was registered with the Moldovan Ministry of Justice
as a non-governmental organisation lobbying, inter alia, for
freedom of expression and the right to peaceful assembly. In 2007 its
members decided to discontinue the organisation’s registration
on grounds of alleged pressure and intimidation by the State. In
particular, they complained of the refusal of the Ministry of Justice
to register amendments to the organisation’s articles of
association, the repeated freezing of its bank account, the arbitrary
arrest of its members, attempts to shut down its newspaper, among
other things. Several of the organisation’s leaders requested
political asylum in western countries. It was decided to continue the
organisation’s activity under the same name but without
registering it with the State authorities. It was also decided that
the new unincorporated association would become the former
organisation’s successor. After removal of the organisation
from the Government’s list of non-governmental organisations on
2 June 2008, Hyde Park’s activities continued as before on the
basis of its new articles of association. The association continued
editing its newspaper, its Internet page and continued staging
protests and demonstrations.
- The
other applicants are members and supporters of Hyde Park: Gheorghe
Lupuşoru, Anatol Hristea-Stan, Mariana
Gălescu, Alina Didilică
and Oleg Brega who were born in 1969, 1953, 1982, 1978 and 1973
respectively and live in Chişinău, Chişinău,
Chişinău, Cazangic and Pepeni respectively.
- On
6 December 2004 Hyde Park applied to the Chişinău Municipal
Council for authorisation to hold a peaceful meeting in front of the
Romanian Embassy on 5 January 2005, to protest against the policy of
Romania in respect of Moldovan students. The application was signed
by Hyde Park’s president and stated, inter alia, that:
“By the present [application] we seek permission
from the Chişinău Municipality to hold a public gathering
on 5 January 2005 in Chişinău.
The members and the supporters of Hyde Park who study in
Romania or who have relatives studying there are not content with the
manner in which they are treated by the Romanian authorities.
Therefore we intend to protest with them and on their behalf in front
of the Romanian Embassy, between 11 a.m and 2 p.m. in front of the
entrance on Bucharest street.
We undertake to respect public order and not to block
traffic.”
- On 30 December 2004 the Chişinău Municipal
Council rejected the application on the ground that:
“The municipal police considered the applicants’
protest to be unfounded and unwelcome because it was the Government
of Romania which financed the studies of Moldovan students in Romania
and therefore the Romanian authorities were competent to take a
decision in respect of the applicants’ application [of 6
December 2004]”.
- On
3 January 2005 the first applicant challenged the refusal in court
and argued, inter alia, that it was unlawful. It also argued
that the Municipal Council had protracted the examination of their
application until the last day of the year so as not to leave it
enough time to challenge the refusal in the courts. It asked that the
case be examined urgently. The applicant explained that many persons
who had expressed their wish to participate in the demonstration were
students in Romania and were at home, in Chişinău, only for
the winter break.
- On 21 February 2005 the Chişinău Court of
Appeal dismissed the applicants’ action, finding that the
Municipal Council had acted within its competence. The court observed
that the police, the Prosecutor’s Office and the Secret Service
had obtained information that the applicants intended to breach the
provisions of sections 6 and 7 of the Assemblies Act.
- Hyde
Park appealed against this judgment and argued that the judgment had
breached the right of its members to hold peaceful meetings in public
places. It also argued that no evidence had been presented to support
the view that the holding of the demonstration would have given rise
to an infringement of sections 6 and 7 of the Assemblies Act.
- On
8 June 2005 the Supreme Court of Justice upheld the appeal, quashed
the judgment of the first-instance court and ordered a re-examination
of the case. The Supreme Court found that there was no evidence that
the applicants intended to breach sections 6 and 7 of the Assemblies
Act.
- On 6 October 2005 the Chişinău Court of
Appeal again dismissed the action on the basis that the holding of a
protest meeting in front of the Romanian Embassy could have
prejudiced the image of the Moldovan State and of the Moldovan
people. Moreover, the decision to hold a protest meeting had not been
adopted by the council of Hyde Park, as required by its statutes.
Additionally, the Hyde Park statutes did not contain, in its list of
activities, provisions sanctioning actions such as holding protest
meetings. The first applicant appealed.
- On
14 December 2005 the Supreme Court of Justice dismissed the
applicants’ appeal on points of law, on the ground that the
holding of a demonstration in front of the Romanian Embassy could
have prejudiced the image of the Moldovan State and of the Moldovan
people.
II. RELEVANT DOMESTIC LAW
- The relevant provisions of the Assemblies Act of 21
June 1995 read as follows:
“Section 6
(1) Assemblies shall be conducted peacefully,
without any sort of weapons, and shall ensure the protection of
participants and the environment, without impeding the normal use of
public highways, road traffic and the operation of economic
undertakings and without degenerating into acts of violence capable
of endangering the public order and the physical integrity and life
of persons or their property.
Section 7
Assemblies shall be suspended in the following
circumstances:
(a) denial and defamation of the State and of
the people;
(b) incitement to war or aggression and
incitement to hatred on ethnic, racial or religious grounds;
c) incitement to discrimination, territorial
separatism or public violence;
d) acts that undermine the constitutional
order.
Section 8
(1) Assemblies may be conducted in squares,
streets, parks and other public places in cities, towns and villages,
and also in public buildings.
(2) It shall be forbidden to conduct an
assembly in the buildings of the public authorities, the local
authorities, prosecutors’ offices, the courts or companies with
armed security.
(3) It shall be forbidden to conduct
assemblies:
(a) within fifty metres of the parliament
building, the residence of the President of Moldova, the seat of the
government, the Constitutional Court and the Supreme Court of
Justice;
(b) within twenty-five metres of the
buildings of the central administrative authority, the local public
authorities, courts, prosecutors’ offices, police stations,
prisons and social rehabilitation institutions, military
installations, railway stations, airports, hospitals, companies which
use dangerous equipment and machines, and diplomatic institutions.
(4) Free access to the premises of the
institutions listed in subsection (3) shall be guaranteed.
(5) The local public authorities may, if the
organisers agree, establish places or buildings for permanent
assemblies.
Section 11
(1) Not later than fifteen days prior to the
date of the assembly, the organiser shall submit a notification to
the Municipal Council, a specimen of which is set out in the annex
which forms an integral part of this Act.
(2) The prior notification shall indicate:
(a) the name of the organiser of the assembly
and the aim of the assembly;
(b) the date, starting time and finishing
time of the assembly;
(c) the location of the assembly and the
access and return routes;
(d) the manner in which the assembly is to
take place;
(e) the approximate number of participants;
(f) the persons who are to ensure and answer
for the sound conduct of the assembly;
(g) the services the organiser of the
assembly asks the Municipal Council to provide.
(3) If the situation so requires, the
Municipal Council may alter certain aspects of the prior notification
with the agreement of the organiser of the assembly.”
Section 12
(1) The prior notification shall be examined
by the local government of the town or village at the latest 5 days
before the date of the assembly.
(2) When the prior notification is considered
at an ordinary or extraordinary meeting of the Municipal Council, the
discussion shall deal with the form, timetable, location and other
conditions for the conduct of the assembly and the decision taken
shall take account of the specific situation.
(6) The local authorities can reject an
application to hold an assembly only if after having consulted the
police, it has obtained convincing evidence that the provisions of
sections 6 and 7 will be breached with serious consequences for
society.
Section 14
(1) A decision rejecting the application for
holding an assembly shall be reasoned and presented in writing. It
shall contain reasons for refusing to issue the authorisation...
Section 15
(1) The organiser of the assembly can
challenge the refusal in the administrative courts.”
- On
22 February 2008 the Parliament adopted a new Assemblies Act,
according to which no authorisation is needed for the holding of
demonstrations with less than fifty participants.
THE LAW
- The
applicants complained that the proceedings were not fair within the
meaning of Article 6 § 1 because the courts failed to give
relevant and sufficient reasons in their judgments. The relevant part
of Article 6 § 1 reads as follows:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. ...”
- The applicants also complained that the refusal to
authorise their protest violated their right to freedom of peaceful
assembly as guaranteed by Article 11 of the Convention, which
provides:
“1. Everyone has the right to freedom
of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime,
for the protection of health or morals or for the protection of the
rights and freedoms of others. This Article shall not prevent the
imposition of lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the administration
of the State.”
I. ADMISSIBILITY OF THE CASE
- The
Court notes that after the lodging of the present application Hyde
Park underwent transformation in that it ceased to exist as a
registered non-governmental organisation and re-emerged as an
unincorporated association (see paragraph 1 above). It has not been
disputed that the new Hyde Park is entitled to pursue the application
and the Court sees no reason to hold otherwise (see, mutatis
mutandis, David v. Moldova, no. 41578/05, § 28,
27 November 2007). Moreover, the Court considers that Hyde Park’s
capacity to pursue the proceedings is not affected by the fact that
it is unincorporated (see, mutatis mutandis, Christians against
Racism and Fascism v. the United Kingdom, no. 8440/78, Commission
decision of 16 July 1980, Decisions and Reports 21, p. 138).
- The
Court considers that the present application raises questions of fact
and law which are sufficiently serious for their determination to
depend on an examination of the merits, and that no grounds for
declaring it inadmissible have been established. The Court therefore
declares the application admissible. In accordance with its decision
to apply Article 29 § 3 of the Convention (see
paragraph 4 above), the Court will immediately consider its merits.
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
A. The arguments of the parties
- The
applicants submitted that the interference with their right to
freedom of assembly was not prescribed by law, did not pursue a
legitimate aim and was not necessary in a democratic society.
- The
Government accepted that there has been an interference with the
applicants’ rights as guaranteed by Article 11 of the
Convention. However, that interference was prescribed by law, namely
by the Assemblies Act, pursued a legitimate aim and was necessary in
a democratic society.
- In
so far as the legitimate aim is concerned, the Government argued that
the interference was warranted as it pursued interests of national
security. In the Government’s opinion, the holding of the
demonstration in front of the Romanian Embassy could have led to
tensions between Romania and Moldova and therefore it fell under the
provisions of section 7 (a) of the Assemblies Act. As to
the proportionality of the interference with the legitimate aim
pursued, the Government argued that Hyde Park’s articles of
association, in its chapter concerning the organisation’s
activities, did not contain any provisions about the staging of
protests and demonstrations. Moreover, according to the articles of
association, the decision-making body of the organisation was its
council. However, the request for authorisation was lodged by the
organisation’s president, not by its council. In addition, in
limiting the applicants’ freedom of assembly, the authorities
took into account the interest of Moldovan students in Romania who
could have suffered as a result of the applicants’ staging a
protest demonstration in front of the Romanian Embassy. According to
the Government, the Romanian Government could have cut the number of
scholarships for Moldovan students as a result of the applicants’
actions.
B. The Court’s assessment
- It
is common ground between the parties, and the Court agrees, that the
decision to reject Hyde Park’s application to hold a
demonstration on 5 January 2005 amounted to “interference
by [a] public authority” with the applicants’ right to
freedom of assembly under the first paragraph of Article 11.
Such interference will entail a violation of Article 11 unless it is
“prescribed by law”, has an aim or aims that are
legitimate under paragraph 2 of the Article and is “necessary
in a democratic society” to achieve such aim or aims.
- In
so far as the lawfulness of the interference is concerned, the Court
notes that under section 14 of the Assemblies Act the Chişinău
Municipality was obliged to give reasons in writing for rejecting
Hyde Park’s application to hold an assembly, which it did in
its decision of 30 December 2004 (see paragraph 8 above). According
to section 12 (6) of the Assemblies Act, an application could be
rejected only if the Municipality was in possession of evidence that
the provisions of sections 6 and 7 would be breached with serious
consequences for society. Contrary to this provision, the
Municipality’s decision appears to have questioned the
reasonableness of Hyde Park’s decision to stage a protest.
Indeed, the wording of the Municipality’s decision suggests
that it considered the applicants’ planned protest devoid of
foundation. This in itself might be a sufficient basis for the
conclusion that the impugned measures were not “prescribed by
law”. However, in the present case, the Court considers that
the issue of compliance with the law is indissociable from the
question as to whether the interference was “necessary in a
democratic society”. It will therefore examine this issue below
(see Christian Democratic People’s Party v. Moldova,
no. 28793/02, § 53, ECHR 2006 II).
- The
parties also disagreed as to whether the interference served a
legitimate aim. The Court, for the reasons set out below, does not
consider it necessary to decide this point either (see Christian
Democratic People’s Party v. Moldova, cited above, §54).
- In
so far as the proportionality of the interference is concerned, the
Court recalls that it has stated many times in its judgments that not
only is democracy a fundamental feature of the European public order
but the Convention was designed to promote and maintain the ideals
and values of a democratic society. Democracy, the Court has
stressed, is the only political model contemplated in the Convention
and the only one compatible with it. By virtue of the wording of the
second paragraph of Article 11, and likewise of Articles 8, 9
and 10 of the Convention, the only necessity capable of justifying an
interference with any of the rights enshrined in those Articles is
one that may claim to spring from a “democratic society”
(see Refah Partisi (the Welfare Party) and Others v. Turkey
[GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, §§ 86 89,
ECHR 2003 II, and Christian Democratic People’s Party
v. Moldova, cited above).
- Referring
to the hallmarks of a “democratic society”, the Court has
attached particular importance to pluralism, tolerance and
broadmindedness. In that context, it has held that although
individual interests must on occasion be subordinated to those of a
group, democracy does not simply mean that the views of the majority
must always prevail: a balance must be achieved which ensures the
fair and proper treatment of minorities and avoids any abuse of a
dominant position (see Young, James and Webster v. the United
Kingdom, 13 August 1981, § 63, Series A no. 44, and
Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95
and 28443/95, § 112, ECHR 1999 III).
- When
carrying out its scrutiny under Article 11 the Court’s task is
not to substitute its own view for that of the relevant national
authorities but rather to review under Article 11 the decisions they
have delivered in the exercise of their discretion. This does not
mean that it has to confine itself to ascertaining whether the
respondent State exercised its discretion reasonably, carefully and
in good faith; it must look at the interference complained of in the
light of the case as a whole and determine whether it was
“proportionate to the legitimate aim pursued” and whether
the reasons adduced by the national authorities to justify it are
“relevant and sufficient”. In so doing, the Court has to
satisfy itself that the national authorities applied standards which
were in conformity with the principles embodied in Article 11 and,
moreover, that they based their decisions on an acceptable assessment
of the relevant facts (see, United Communist Party of Turkey and
Others v. Turkey, 30 January 1998, § 47, Reports of
Judgments and Decisions 1998 I).
- Turning
to the circumstances of the present case, the Court observes that the
Municipality rejected Hyde Park’s application to hold a protest
demonstration planned for 5 January 2005 on the grounds that, in its
opinion, “the protest was unwelcome and unfounded”. The
Court noted above that such a reason appears to be inconsistent with
the requirements of the Assemblies Act which, in its sections 6 and
7, sets out the grounds on which an application for holding an
assembly can be rejected by a Municipality. Such reasons cannot be
considered compatible with Article 11 of the Convention. There was
never any suggestion that the organisers intended to disrupt public
order or to seek a confrontation with the authorities. Rather their
intention was to draw attention to the plight of Moldovan students in
Romania. The guarantee of the right to freedom of assembly cannot be
left to the whim of the authorities and their perception of what is
or is not deserving of authorisation. The Court can only conclude
that the Municipality’s refusal to authorise the demonstration
did not respond to a pressing social need.
- It
is true that new reasons for rejecting Hyde Park’s application
to hold an assembly were given by the courts during the subsequent
judicial proceedings. However, sections 11 and 12 of the Assemblies
Act give exclusive authority to the local authorities to authorise or
not assemblies. The law does not provide, and the Government did not
argue the contrary, that other State authorities such as the courts
were entitled under the Assemblies Act to exercise this duty in their
own name or on behalf of the local authorities. Moreover, the Court
can but note that those reasons were contained in decisions given by
the courts long after the date planned for the demonstrations. For
that reason the Court considers that the judicial proceedings
following the Municipality’s decision rejecting Hyde Park’s
application for holding an assembly and the reasons given by the
courts for upholding that decision must be disregarded.
- Bearing
in mind the above circumstances, the Court concludes that the
interference did not correspond to a pressing social need and thus
that it was not necessary in a democratic society. Accordingly, there
has been a violation of Article 11 of the Convention.
III. alleged violation of Article 6 § 1 of the
Convention
- The
applicants also alleged a violation of Article 6 § 1 of the
Convention, arguing that the proceedings had been unfair because the
domestic courts failed to give reasoned judgments. As this complaint
does not raise a separate issue from that examined under Article 11
above, the Court does not consider it necessary to examine it
separately.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicants claimed 4,000 euros (EUR) for Hyde Park and EUR 500
for each individual applicant in respect of moral damage.
- The
Government disagreed and argued that the amount was excessive and
unsubstantiated.
- The
Court awards EUR 3,000 to Hyde Park. The award in favour of Hyde Park
should be paid to the applicants’ representative, Mr A.
Postică, to be held and managed on behalf of Hyde Park. In so
far as the claims by the individual applicants are concerned, the
Court does not consider these to be justified in the present case and
therefore dismisses them.
B. Costs and expenses
- The
applicants also claimed EUR 1,300 for the costs and expenses incurred
before the Court.
- The
Government contested the amount and argued that it was excessive.
- The
Court awards EUR 1,000 for costs and expenses. This sum should be
paid to the applicants’ representative, Mr A. Postică.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares admissible the application;
- Holds that there has been a violation of Article
11 of the Convention;
- Holds that there is no need to examine
separately the complaint under Article 6 of the Convention;
- Holds
(a) that
the respondent State is to pay Hyde Park, within three months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts to
be converted into the currency of the respondent State at the rate
applicable on the date of settlement:
(i) EUR
3,000 (three thousand euros) in respect of non-pecuniary damage, to
be paid to the applicants’ representative, Mr A. Postică,
to be held and managed on behalf of Hyde Park;
(ii) EUR
1,000 (one thousand euros) in respect of costs and expenses to be
paid to Hyde Park’s representative, Mr A. Postică;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 31 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
