CASE OF HYDE PARK AND OTHERS v. MOLDOVA (no. 4)
(Application no. 18491/07)
7 April 2009
This judgment may be subject to editorial revision.
In the case of Hyde Park and Others v. Moldova (no. 4),
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 17 March 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW
(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.
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.
(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.
(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.”
(1) The prior notification shall be examined by the local government of the town or village 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.
(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...
(1) The organiser of the assembly can challenge the refusal in the administrative courts.”
“Article 166. Illegal deprivation of liberty
(1) Illegal deprivation of liberty, if it is not a kidnapping, shall be punishable with community work of 120-240 hours or imprisonment of up to 2 years.
(2) The same offence committed
b) against two or more persons;
d) by two or more persons;
shall be punishable with imprisonment of 3 to 8 years.
Article 184. Violation of the right to freedom of assembly
(1) Violation of the right to freedom of assembly by way of illegal hindering of a demonstration, rally or action of protest or hindering of persons from taking part in them...:
a) committed by an official;
b) committed by two or more persons ;
c) accompanied by acts of violence which are not dangerous to life or health,
shall be punishable with a fine of four to eight thousand Moldovan lei or with community work of 180-240 hours, or with imprisonment of up to two years.”
“Article 174 § 1
2. The organisation and holding of an assembly without prior notification to the Municipal Council or without authorisation from the Council, or in breach of the conditions (manner, place, time) concerning the conduct of meetings indicated in the authorisation shall be punishable by a fine to be imposed on the organisers (leaders) of the assembly in an amount equal to between MDL 500 and 1,000. ...
4. Active participation in an assembly referred to in paragraph 2 of the present article shall be punishable by a fine in an amount between MDL 200 and 300.
Article 174 § 5
Resisting a police officer [...] in the exercise of his or her duties of ensuring public order and the fight against crime shall be punishable by a fine up to MDL 300 or detention of up to thirty days.
Article 174 § 6
Insulting police officers ... in the exercise of their duties ... shall be punishable by a fine of up to MDL 200 or imprisonment of up to fifteen days.
Persons who ... breached the rules concerning the organisation and holding of assemblies ... resisted a police officer or behaved offensively towards him... may be detained until the case is examined by a court... ...”
“Section 12. The main requirements in places of pre-trial detention
(3) The detainees shall be subjected to body searches.... They shall not be allowed to have money, precious objects and objects forbidden in places of detention. Money shall be transferred into their personal accounts, while precious objects and other objects shall be stored.”
“Section 29. The manner of removal of forbidden objects and substances from detainees
373. Money, precious objects and forbidden objects must be taken away from detainees...
375. During detention the goods mentioned in paragraph 373 above shall be transmitted to the accounting department of the detention facility for storage...
376. The forbidden objects and substances shall be taken away from detainees when they are discovered.
377. The right to take away forbidden objects is vested in the representatives of the administration, guardians and other employees of the penitentiary system.
378. The taking away of goods shall be carried out by at least two representatives of the administration, in the presence of the detainee whose goods are taken away.
379. Minutes of the removal of possessions shall be drawn up and copied three times by the participants. One copy for the detainee whose goods have been removed, another for the accounting department and the third copy for the detainee’s personal file.
380. The minutes shall contain the following information:
The name of the detention facility;
Date, time and place of the removal of goods;
Reason for the removal of goods;
First name, last name, position and grade of the persons who participated in the removal;
First name and last name of the detainee whose goods are removed;
An exhaustive list of the goods removed indicating denominations, quantity, brand, series, number, registration number...
Signatures of all the participants, including that of the detainee...
381. The minutes shall also contain details relating to the price of the object/s, their material, and any distinguishing features.
382. If the detainee is not in agreement with the minutes, he has the right to write his objections in the minutes.
383. Money and other valuables shall be transmitted urgently (not later than one day) to the accounting department. The removed goods shall be registered in a special register for valuables.
384. Any money removed shall be transferred to the detainee’s bank account...”
According to Annex No. 7 to this Government Decision, it is forbidden for detained persons to have mobile telephones.
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
“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. ...”
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, 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.”
“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.”
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
I. ADMISSIBILITY OF THE CASE
A. Preliminary note
B. Victim status
C. The complaint under Article 3 of the Convention
D. The complaints under Article 8 and Article 13 of the Convention
E. The remaining complaints
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
III. alleged violation of Article 6 § 1 of the Convention
IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
V. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 2 AND 3 OF THE CONVENTION
VI. 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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(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:
- to Hyde Park- EUR 4,000 (four thousand euros) for non-pecuniary damage and EUR 3,000 (three thousand euros) for costs and expenses. These sums are to be paid to the applicants’ representatives, Mr A. Postică or Mr P. Postică, to be held and managed on behalf of Hyde Park;
- to Mr Brega – EUR 3,000 (three thousand euros) for non-pecuniary damage;
- to Mr Juraveli – EUR 2,500 (two thousand five hundred euros) for non-pecuniary damage;
- to Mr Cotelea – EUR 2,500 (two thousand five hundred euros) for non-pecuniary damage;
- to Ms Galescu – EUR 3,000 (three thousand euros) for non-pecuniary damage;
- to Mr Vasilascu – EUR 2,500 (two thousand five hundred euros) for non-pecuniary damage;
- to Mr Dragan – EUR 2,500 (two thousand five hundred euros) for non-pecuniary damage;
- to Ms Lungu – EUR 2,500 (two thousand five hundred euros) for non-pecuniary damage;
- to Mr Hristea-Stan – EUR 2,500 (two thousand five hundred euros) for non-pecuniary damage;
(b) that the above amounts shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable
(c) 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 7 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza