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Cite as: [2008] ECHR 224
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FOURTH SECTION
CASE OF ROSCA, SECAREANU AND OTHERS v. MOLDOVA
(Applications nos. 25230/02, 25203/02, 27642/02, 25234/02 and 25235/02)
JUDGMENT
STRASBOURG
27 March 2008
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Rosca, Secareanu 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,
Stanislav
Pavlovschi,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ledi Bianku, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having deliberated in private on 4 March 2008,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. Background to the case
2. Decisions of the Municipal Council
9. By a decision of 3 January 2002 the Municipal Council classified the gathering to be held on 9 January 2002 as a “demonstration” within the meaning of sections 4, 8, 12 and 13 of the Assemblies Act (see paragraph 36 below) and authorised the parliamentary group of the CDPP to hold it in the Square of the National Opera. It did not give any reasons for the change of location.
10. Later, on 23 January 2002, the Municipal Council addressed a letter to the Ministry of Justice, informing it that there was a discrepancy between the provisions of the Status of Members of Parliament Act and those of the Assemblies Act and that it did not know which to apply. It stated, inter alia, that a number of reputable lawyers supported the idea that the CDPP members of Parliament had the right to hold meetings with their supporters in the Square of the Great National Assembly without obtaining prior authorisation, in accordance with the provisions of sections 22 and 23 of the Status of Members of Parliament Act. It cited in that connection the opinion of an Ombudsman who considered that, since section 23 of the Status of Members of Parliament Act proclaimed the right of MPs to raise demands on the spot for action to remedy a breach of the law, the CDPP members of Parliament were entitled to raise their demands for the cessation of the alleged breaches concerning the introduction of compulsory Russian lessons in front of the Government building, as it also housed the Ministry of Education. Accordingly, the Municipal Council requested the Ministry of Justice to ask Parliament for an official interpretation of the legislation in question.
11. On 26 January 2002 the Municipal Council issued a decision which stated, inter alia:
“Having regard to the fact that the provisions of the domestic legislation are contradictory in respect of the demonstrations organised by the CDPP and that the opinions of legal experts are contradictory, and bearing in mind the considerable social impact of a possible decision regarding the matter and the consequences it might entail, the Municipal Council has formally requested the Ministry of Justice to ask Parliament for an official and urgent interpretation of the relevant legislation. ... The Municipal Council's decision of 3 January 2002 is hereby suspended until Parliament has given its official interpretation.”
3. Gatherings held by the CDPP members of Parliament
12. In the meantime, on 9 January 2002, the parliamentary group of the CDPP held a gathering in the Square of the Great National Assembly, in front of Government headquarters. It also held gatherings on 11, 13, 15, 16 and 17 January 2002. The CDPP informed the Municipal Council in advance of each gathering; however, it did not seek authorisation in accordance with the Assemblies Act.
4. Warning letter from the Ministry of Justice and the CDPP's reply
13. On 14 January 2002 the Ministry of Justice issued an official warning to the CDPP in accordance with section 27 of the Parties and other Socio-Political Organisations Act (see paragraph 37 below). It stated, inter alia, that the CDPP had breached the provisions of section 6 of the Assemblies Act by organising demonstrations in the Great National Assembly Square on 9, 10, 11 and 13 January 2002, notwithstanding the authorisation issued by the Municipal Council, which gave permission only for a demonstration on 9 January 2002 in the Square of the National Opera. It called for an immediate halt to the actions, which it considered to be illegal and unconstitutional and which it claimed were not meetings with voters within the meaning of the Status of Members of Parliament Act, but demonstrations falling under the Assemblies Act. It asked the CDPP for a written explanation within three days and warned that if it failed to comply with the warning, the Ministry would impose a temporary ban (suspendarea activităţii) on the party's activities in accordance with section 29 of the Parties and other Socio-Political Organisations Act (see paragraph 37 below).
14. On 17 January 2002 the President of the CDPP wrote a letter to the Ministry of Justice in which he stated that the gatherings had not been organised by the CDPP but by members of its parliamentary group, and that it was therefore the members concerned who were liable, and not the Party. He also relied on section 22 of the Status of Members of Parliament Act, arguing that it was a very specific act, applicable to meetings between members of Parliament and voters, while the Assemblies Act was general in nature. He finally submitted that the threatened ban on the party's activities would amount to a political measure on the part of the Communist Party in order to repress the opposition.
5. The temporary ban imposed on the CDPP's activities
15. On 18 January 2002 the Ministry of Justice issued a decision imposing a one-month ban on the CDPP's activites, in accordance with section 29 of the Parties and other Socio-Political Organisations Act.
16. The measure was imposed on the basis of the organisation by the CDPP of unauthorised demonstrations on 9, 10, 11, 13, 15, 16 and 17 January 2002.
17. The Ministry of Justice dismissed the CDPP leader's argument that the party could not be held liable. It stated, inter alia, that the gatherings organised by the CDPP on the above dates had in fact been demonstrations and marches and therefore fell within the scope of the Assemblies Act rather than the Status of Members of Parliament Act as the CDPP claimed.
18. According to the decision, the CDPP had breached the provisions of sections 5, 6, 7, 8, 9 and 11 of the Assemblies Act by not obtaining prior authorisation from the Municipal Council to stage demonstrations and by blocking public roads.
19. The participation of minors in the CDPP demonstrations had been in breach of Article 15 of the International Convention on the Rights of the Child, section 13 (3) of the Protection of Children Act and section 56 (g) of the Education Act .
20. The CDPP's actions also disclosed a violation of sections 27 and 29 of the Parties and other Socio-Political Organisations Act, section 15 (1) and (2) of the Status of Members of Parliament Act and Article 32 of the Constitution. The use of such slogans as “I'd rather be dead than a Communist” (mai bine mort decât comunist) could be interpreted as a call to public violence and an act undermining the legal and constitutional order.
6. Proceedings challenging the ban on the Party's activities, and lifting of the ban
7. Proceedings by the Government seeking to have the gatherings held by the CDPP declared illegal and requesting an order to discontinue them
26. The Ministry of Justice did not reply to the Municipality's request of 23 January 2002 for interpretation of the law and did not address any request to Parliament. However, on 21 February 2002 the Government lodged an application with the Supreme Court of Justice asking it, inter alia, to declare the demonstrations organised by CDPP illegal and to order their cessation.
27. On 25 February 2002 the Supreme Court of Justice ruled in favour of the Government and declared the gatherings illegal. It stated, inter alia, that:
“Even if one could accept that the CDPP had the initial intention of holding meetings with its supporters, those meetings later took on the character of demonstrations, marches, processions and picketing, which fall under the provisions of the Organisation and Conduct of Assemblies Act. In these circumstances, the leaders of the CDPP were required to comply with the provisions of the Assemblies Act...”
28. The CDPP appealed but on 15 March 2002 the Supreme Court of Justice dismissed the appeal and the judgment of 25 February 2002 became final.
8. Administrative proceedings against the applicants
30. By its decisions of 21 February 2002, 21 February 2002, 24 January 2002, 29 January 2002 and 24 January 2002 respectively, the Buiucani District Court found the applicants guilty of having participated in unauthorised demonstrations in breach of Article 174/1 of the Code of Administrative Offences. In particular the court found Mr Roşca and Mr Secareanu guilty of having organised and of having actively participated in the CDPP demonstrations between 9 and 31 January 2002. It found Mr Buburuz guilty of having participated in a CDPP demonstration on 15 January 2002 and it found Mr Roşcovan and Mr Eremia guilty of having participated in demonstrations on 20 and 13 January 2004 respectively. The court imposed on the applicants administrative fines of MDL 450 (EUR 40), MDL 450 (EUR 40), MDL 90 (EUR 8), MDL 90 (EUR 8) and MDL 90 (EUR 8) respectively.
II. RELEVANT DOMESTIC LAW
THE LAW
Article 10 of the Convention
“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, 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.”
Article 11 of the Convention
“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 COMPLAINTS
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
“71. The Court notes that at the material time the CDPP was a minority parliamentary opposition party with approximately ten percent of the seats in Parliament, while the majority Communist Party had approximately seventy percent of the seats. The ban was imposed on the applicant party's activities as a result of gatherings which it had organised in order to express its disagreement with and protest against the Government's plans to make the study of Russian compulsory for school children, at that time the subject of a heated debate within Moldovan society. Given the public interest in free expression in these circumstances and the fact that the applicant was an opposition parliamentary political party, the Court considers that the State's margin of appreciation was correspondingly narrowed and that only very compelling reasons would have justified the interference with the CDPP's right to freedom of expression and assembly (see paragraph 68 above).
72. The Ministry of Justice, and later the domestic courts, in justifying the temporary ban on the CDPP's activities, relied on three main grounds: that the CDPP had not obtained authorisation for its gatherings in accordance with the Assemblies Act, that children had been present at its gatherings and that some statements made at the gatherings amounted to calls to public violence.
73. As far as the first ground is concerned, the Court notes that there was a dispute as to the applicability of the provisions of the Assemblies Act to the CDPP's gatherings. The Municipal Council, which was the only authority empowered to issue authorisations under that law, considered the legislation unclear and refused to apply it to the CDPP until Parliament had given its official interpretation.... Hence, it would appear questionable whether non-compliance with the legislation in those circumstances would justify such a serious measure as a temporary ban. However, even assuming that the legislation was clear, the Court is not convinced that the failure to comply with that legislation, which otherwise was punishable with an administrative fine of MDL 180-450 (EUR 16-40) ..., could be considered as a relevant and sufficient reason for imposing a temporary ban on the activities of an opposition party.
74. Where the presence of children is concerned, the Court notes that it has not been established by the domestic courts that they were there as a result of any action or policy on the part of the applicant party. Since the gatherings were held in a public place everyone, including children, could attend. Moreover, in the Court's view, it was rather a matter of personal choice for the parents to decide whether to allow their children to attend those gatherings and it would appear to be contrary to the parents' and children's freedom of assembly to prevent them from attending such events which, it must be recalled, were to protest against Government policy on schooling. Accordingly, the Court is not satisfied that this reason was relevant and sufficient.
75. As to the third ground for the ban, the Court is not persuaded that the singing of a fairly mild student song could reasonably be interpreted as a call to public violence. Neither the Ministry of Justice nor the domestic courts have attempted to explain how the impugned line from the chorus of the song amounted to a call for violence. Consequently, this reason cannot be considered as relevant and sufficient either.
76. The Court reiterates that only very serious breaches such as those which endanger political pluralism or fundamental democratic principles could justify a ban on the activities of a political party. Since the CDPP's gatherings were entirely peaceful, there were no calls to violent overthrow of the Government or any other acts undermining the principles of pluralism and democracy, it cannot reasonably be said that the measure applied was proportionate to the aim pursued and that it met a “pressing social need.”
Accordingly, there has been a violation of Article 11 of the Convention.
III. alleged violation of Article 10 of the Convention
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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. Pecuniary damage
B. Non-pecuniary damage
C. Costs and expenses
In support of their claims, the applicants submitted a detailed time sheet indicating the time spent by their lawyers on the case and an itemised list of other expenses linked to the examination of the case. They also submitted copies of contracts between them and their lawyers.
D. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 28 (twenty-eight euros) to Mr Rosca, EUR 28 (twenty-eight euros) to Mr Secareanu and EUR 6 (six euros) to each of the rest of the applicants in respect of pecuniary damage, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage to each applicant except Mr Rosca and Mr Secareanu and EUR 2,000 (two thousand euros) in total in respect of costs and expenses, plus any tax that may be chargeable, which sums are to be converted into the currency of the respondent State at the rate applicable at the date of payment;
(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;
Done in English, and notified in writing on 27 March 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President