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HYDE PARK AND OTHERS v. MOLDOVA (no. 4) - 18491/07 [2009] ECHR 1692 (7 July 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1692.html
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[2009] ECHR 1692
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FOURTH
SECTION
CASE OF
HYDE PARK AND OTHERS v. MOLDOVA (no. 4)
(Application
no. 18491/07)
JUDGMENT
STRASBOURG
7 April
2009
FINAL
07/07/2009
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,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ledi
Bianku,
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:
PROCEDURE
The
case originated in an application (no. 18491/07) 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 and eight Moldovan nationals, Mr Oleg
Brega, Mr Anatolie Juraveli, Mr Roman Cotelea, Mr Mariana Galescu,
Mr Radu Vasilascu, Mr Vitalie Dragan, Mr Angela Lungu and Mr
Anatol Hristea-Stan (“the applicants”) on
21 February 2007. 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
and Mr P. Postică, lawyers practising in Chişinău,
and members of the non-governmental organisation Promo-Lex. The
Moldovan Government (“the Government”) were represented
by their Agent, Mr V. Grosu.
The
applicants complained about numerous alleged violations of their
rights guaranteed by Articles 3, 5, 6, 8, 11 and 13 of the
Convention.
On
8 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: Oleg Brega,
Anatolie Juraveli, Roman Cotelea, Mariana Galescu, Radu Vasilascu,
Vitalie Dragan, Angela Lungu and Anatol Hristea-Stan. They were born
in 1973, 1988, 1987, 1982, 1983, 1967, 1988 and 1953 respectively and
live in Pepeni, Durlesti and Chişinău.
On
30 June 2006 the first applicant applied to the Chişinău
Municipal Council for authorisation to hold a peaceful demonstration
at the junction of Banulescu-Bodoni and Stefan cel Mare streets, not
far from the Government building, between 1 and 31 August 2006, to
protest against the refusal of the Ministry of Culture to install a
monument dedicated to the poet Liviu Rebreanu, donated by the
Government of Romania.
On 18 July 2006 the Chişinău Municipal
Council authorised the holding of a demonstration in writing, but
only on 1 August 2006. It stated that it considered that one day of
protest was sufficient in order to bring Hyde Park’s concerns
to the Government’s attention.
On
25 July 2006 Hyde Park challenged the Municipal Council’s
decision in court.
On 29 August 2006 the Chişinău Court of
Appeal found that the Municipality’s refusal had been unlawful,
quashed its decision of 18 July 2006 and ordered the Municipal
Council to authorise the first applicant to hold a demonstration in
front of the Government building between 29 and 31 August 2006.
The court ordered that its judgment should come into force
immediately.
On
30 August 2006 the applicants requested authorisation from the
Municipality on the basis of the judgment of 29 August 2006. However,
the Municipality refused to comply with the judgment on the ground
that it was not final.
On the same day at 5 p.m. the applicants started their
demonstration at the place indicated in the judgment of the Court of
Appeal. At 5.15 p.m. the applicants were approached by a group
of police officers who asked whether they had authorisation. The
applicants showed them the judgment of the Court of Appeal. From a
video which was made by the police and which is part of the domestic
case file a police officer can be seen attempting to convince Mr
Brega to stop the demonstration. The latter refuses and argues that
Hyde Park has a court judgment authorising the demonstration. At the
same time Mr Brega speaks through a megaphone declaring that Moldova
is a totalitarian State where there is no freedom of speech and that
it will have to answer for all its illegal behaviour before the
Strasbourg Court. He accuses the police and the State authorities of
illegal behaviour. Suddenly, a person wearing a Special Forces
uniform attacks one of the Hyde Park members from behind and
violently throws him to the ground. The other participants observe
the attack and are immediately surrounded by a group of police
officers and taken to a police van. Nobody appears to resist and a
female voice, apparently one of the participants, calls on somebody
not to resist arrest. According to the applicants, two of the
participants (Mr Juraveli and Mr D.) were thrown to the ground by
Special Forces officers.
At the police station, the police officers took the
applicants’ belongings including their mobile telephones. The
minutes of arrest indicated, inter alia, that the applicants’
belongings had been taken for storage. The applicants were locked in
different cells in groups of three or four persons. The two female
applicants were put in a separate cell. According to the applicants,
they were not allowed to make any telephone calls or to consult a
lawyer. The cells were small, humid and dirty. They smelled of urine
and faeces. They did not have windows, the electric light was always
on and there were only two wooden benches inside. The applicants were
held in detention for approximately forty hours during which time
they were not provided with any food. They were only provided with
water and occasionally taken to a toilet. Only after the intervention
of several human rights NGOs and after sixteen hours of detention,
were their relatives allowed to bring them food. The Government
disputed the applicants’ description of the conditions of
detention.
On 1 September 2006 at approximately 10 a.m. the
applicants were taken to court where their mobile telephones and
cameras were returned to them and where they learned about the
charges against them for the first time, namely holding an
unauthorised demonstration (Article 174 § 1 of the Code of
Administrative Offences (the “CAO”)), resisting arrest
(Article 174 § 5 of the CAO) and insulting police
officers (Article 174 § 6 of the CAO). After receiving their
belongings, the applicants alleged that all the video and audio files
concerning the demonstration had been deleted from their telephones
by the police.
During the proceedings Mr Brega and Ms Galescu
requested the court to order an expert evaluation of their mobile
telephone records in order to determine whether the police had
deleted files from them; however, their request was rejected and the
proceedings were adjourned. The applicants were released at noon.
On 3 October 2006 the Buiucani District Court
continued the administrative proceedings against the applicants and
found all of them (except for the first applicant) guilty of holding
and participating in an unauthorised demonstration contrary to
Article 174 § 1 of the CAO. The court found that after obtaining
a favourable judgment from the Court of Appeal, they should have
applied to the Municipal Council for authorisation. The court fined
each applicant except for Mr O. Brega (the president of Hyde Park at
the time) 200 Moldovan lei (MDL). Mr O. Brega was fined MDL 500. All
the applicants were acquitted of the charges concerning the insulting
of police officers and resisting arrest after the court viewed a
video of the arrest made by the police officers and found that there
was no justification for bringing these accusations.
All
the applicants appealed against this decision in so far as it
concerned their participation in an unlawful assembly and argued,
inter alia, that Hyde Park had applied to the Municipal
Council for authorisation on 30 August 2006; however, their
request had been dismissed on the ground that the judgment of the
Court of Appeal of 29 August 2006 was not yet in force. They also
repeated their request to have an expert evaluate their mobile
telephone records.
On 26 October 2006 the Chişinău Court of
Appeal upheld the applicants’ appeal while finding that the
applicants’ demonstration was lawful by virtue of the judgment
of the Court of Appeal of 29 August 2006 (see paragraph 10 above).
The applicants were acquitted of the charges relating to their
participation in an unlawful assembly.
In the meantime, on 18 September 2006 the applicants
lodged a criminal complaint against the police officers who had
arrested them. They complained that they had been abused, illegally
detained, that their right to privacy of correspondence had been
violated, that their right to freedom of assembly had been violated
and that they had suffered inhuman and degrading treatment in
addition to the refusal to execute the court decisions.
Between
September 2006 and September 2007 the criminal proceedings initiated
at the applicants’ request were dismissed and re-opened four
times. On each occasion, the Prosecutor’s Office dismissed the
complaint and later the courts, or the hierarchically superior
prosecutor, quashed the prosecutor’s decision and ordered a
re-examination. The reasons for dismissal were the testimonies of
police officers and police witnesses who confirmed the allegations
that the applicants had insulted the police and resisted arrest. As
to the allegation concerning the tampering with the applicants’
mobile telephones and deleting files from them, the Prosecutor’s
Office accepted the testimony of a police officer who confirmed that
two mobile telephones had been seized during the applicants’
detention but denied the allegations that somebody had tampered with
them. As to the video of the event filmed by the police
representatives (see paragraph 12 above), the Prosecutor’s
Office argued that it had been lost and that, therefore, it could not
be examined. On 27 September 2007 the Rascani District Court quashed
the last decision dismissing the applicants’ complaints and
ordered a re-examination. After that date, the applicants did not
hear any more from the Prosecutor’s Office about the status of
their complaint. On 10 January 2008 the applicants wrote to the
Prosecutor General’s Office to enquire as to the stage reached
in their proceedings, but they did not receive a reply. A copy of
that letter with a stamp of the Prosecutor General’s Office on
it was annexed to the applicants’ observations. According
to them, it was only from the Government’s observations that
they learned that their complaint had been dismissed again on 12
November 2007. The Government disputed the applicants’
submissions concerning the letter of 10 January 2008 which the
applicants stated they had sent to the Prosecutor General’s
Office. They did not dispute, however, the authenticity of the
Prosecutor General’s stamp on the copy of that letter.
On
1 November 2006 the Supreme Court of Justice examined the appeal on
points of law lodged by the Municipal Council against the judgment of
the Court of Appeal of 29 August 2006. It quashed that judgment and
dismissed the applicants’ action, finding that the Municipal
Council’s decision of 18 July 2006 was lawful. The Supreme
Court also ruled that the ruling of the Court of Appeal concerning
the immediate enforcement of its judgment had been unlawful.
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 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.”
The relevant provisions of the Criminal Code read as
follows:
“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.”
The relevant provisions of the Code of Administrative
Offences, in force at the material time, read:
“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.
Article 249
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... ...”
The relevant provisions of Law No. 1226 on Pre-Trial
Detention read as follows:
“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.”
More detailed rules concerning detainees’
belongings and their storage by the authorities in charge of
detention facilities are contained in the Government’s Decision
no. 583, of 26 May
2006:
“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.
THE LAW
The
applicants (except for the first applicant) complained under
Article 3 of the Convention that the conditions of detention at
the Buiucani Police Station were inhuman and degrading. Article 3
reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
applicants (except for the first applicant) alleged that their right
to liberty provided for by Article 5 § 1 of the Convention
had been breached since they had been detained for approximately
forty hours without any legal grounds. They also complained under
Article 5 §§ 2 and 3 that they had not been informed
promptly about the reasons for their arrest and about the charges
against them and that they were not brought promptly before a judge.
The relevant parts of Article 5 read as follows:
“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.”
The
applicants further submitted that the proceedings which culminated in
the judgment of the Supreme Court of Justice of 1 November 2006
had been unfair because the Supreme Court of Justice failed to give
reasons for its judgment. 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 (except for the first applicant)
complained under Article 8 that the police had deleted audio and
video files from their mobile telephones and cameras. Article 8 of
the Convention reads as follows:
“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.”
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.”
The
applicants (except for the first applicant) complained under
Article 13 of the Convention that they had not had an effective
remedy in respect of the alleged breach of Article 8. Article 13
reads as follows:
“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
The
Court notes that after the lodging of the present application Hyde
Park ceased to exist as a registered non-governmental organisation
and continued to exist 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 its being 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).
B. Victim status
The
Government submitted that since only Hyde Park had applied to the
Municipality for an authorisation to hold a demonstration, the other
applicants cannot claim to be victims within the meaning of Article
34 of the Convention and that their application was therefore
abusive.
The
applicants submitted that under section 11 of the Assemblies Act only
the organiser of a demonstration can apply for authorisation but not
the participants. Moreover, all of the individual applicants had
participated in the protest and had been arrested by the police.
The
Court notes that all the applicants participated in the assembly and
were arrested and detained by the police. Their victim status for the
purposes of Article 34 of the Convention is therefore not open to
doubt. The Government’s objection is dismissed.
C. The complaint under Article 3 of the Convention
The
Government disputed the allegations concerning the conditions of
detention and argued that in any event the duration of detention had
been too short to attain the threshold of severity required by
Article 3 of the Convention. Moreover, the applicants did not exhaust
domestic remedies.
The
applicants argued that they had been detained in inhuman and
degrading conditions of detention at the Buiucani Police Station for
approximately forty hours (see paragraph 13 above).
The
Court has already had occasion to note the findings of the European
Committee for the Prevention of Torture and Inhuman and Degrading
Treatment (the “CPT”) concerning the conditions of
detention in the Chişinău Police Inspectorates (see, for
instance, Malai v. Moldova, no. 7101/06, § 15, 13
November 2008) and has found violations of Article 3 of the
Convention on numerous occasions in respect of detention conditions
in Moldova. In this case, however, given the short time spent by the
applicants in detention, and the Court’s case-law on this
matter, the Court is unable to hold that the applicants’
suffering attained the threshold of severity required by Article 3.
Unlike in Fedotov v. Russia (no. 5140/02, 25 October
2005), the applicants had access to toilet facilities and water and
after a certain period of time they were allowed to receive food from
their relatives. Accordingly, the Court concludes that the
applicants’ complaint under Article 3 of the Convention is
manifestly ill-founded and therefore inadmissible within the meaning
of Article 35 §§ 3 and 4 of the Convention.
D. The complaints under Article 8 and Article 13 of the
Convention
The
applicants complained that during their detention at the Buiucani
Police Station their mobile telephones were taken away from them and
that the police officers searched through their telephones’
memory and deleted audio and video files of sounds and images of the
demonstration. According to them, the police deleted materials which
would have been inconsistent with the latter’s version of the
events. This fact constituted an interference with their right to
private life and correspondence which was not prescribed by law and
was not necessary in a democratic society.
The
Government argued that the applicants had failed to exhaust domestic
remedies in respect of this complaint. Alternatively, they did not
dispute the fact that the applicants’ mobile telephones had
been confiscated during their detention. However, they disputed the
allegations concerning the searching of the applicants’
telephones’ memories and the deletion of files from them.
According to the Government, there had been no interference with the
applicants’ rights guaranteed by Article 8 of the Convention
and the complaint was, therefore, manifestly ill-founded.
Since
this complaint is in any event inadmissible as being manifestly
ill-founded, the Court does not consider it necessary to reach any
conclusion on the issue whether or not domestic remedies have been
exhausted by the applicants. The Court notes that the applicants have
not furnished any evidence that supports their allegation that the
police tampered with their mobile telephones and deleted files from
them which pertain to matters falling within the ambit of Article 8.
It notes in this connection that according to the applicants, the
material allegedly deleted concerned audio and video data relating to
the demonstration. It has not been suggested that private messages or
other kinds of personal data were viewed and/or deleted. This
complaint is thus unsubstantiated and must be dismissed as manifestly
ill-founded and therefore inadmissible within the meaning of Article
35 §§ 3 and 4 of the Convention.
In
view of the above finding, the Court considers that the applicants
have no arguable claim under Article 13 of the Convention taken
together with Article 8. Accordingly, this complaint is also
manifestly ill-founded and must be dismissed in accordance with
Article 35 §§ 3 and 4 of the Convention.
E. The remaining complaints
The
Court considers that the applicants’ remaining complaints under
Articles 5, 6 and 11 raise questions of fact and law which are
sufficiently serious that their determination should depend on an
examination of the merits, and that no other grounds for declaring
them inadmissible have been established. The Court therefore declares
these complaints admissible. In accordance with its decision to apply
Article 29 § 3 of the Convention (see paragraph 4 above), the
Court will immediately consider the merits of the complaints.
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
The
applicants submitted that the interference with their right to
freedom of assembly was not prescribed by law because the reason
relied upon by the Municipality was not compatible with section 12(6)
of the Assemblies Act. Moreover, the interference did not pursue a
legitimate aim and was not necessary in a democratic society.
The
Government accepted that there had been an interference with the
applicants’ right guaranteed by Article 11 of the Convention.
However, that interference was prescribed by law, namely the
Assemblies Act, pursued a legitimate aim and was necessary in a
democratic society.
It
is common ground between the parties, and the Court agrees, that the
decision to reject Hyde Park’s application to hold a
demonstration between 1 and 31 August 2006 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 18 July 2006 (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. The Municipality’s decision appears
not to have been based on any of the reasons provided for in sections
6 and 7 of the Assemblies Act. 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, mutatis mutandis, Jersild v.
Denmark, 23 September 1994, § 31, Series A no. 298).
Turning
to the circumstances of the present case, the Court observes that the
Municipality rejected the application to hold the protest
demonstration planned for 1-31 August 2006 on the ground that, in its
opinion, one day of protest was sufficient. 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 to hold an assembly can be rejected
by a Municipality. For the Court, the Municipality’s reasons
cannot be considered relevant and sufficient within the meaning of
Article 11 of the Convention. It observes that there was never any
suggestion that the organisers intended to disrupt public order or to
seek a confrontation with the authorities. Therefore, the Court can
only conclude that the Municipality’s refusal to authorise the
demonstration did not respond to a pressing social need.
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.
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 that culminated in the
judgment of the Supreme Court of Justice of 1 November 2006 were
unfair because the Supreme Court failed to give a reasoned judgment.
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. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicants agreed that their detention fell under paragraph (c) of
Article 5 § 1 of the Convention. However, they argued that
the detention was unlawful and arbitrary.
The
Government argued that the actions of the police officers were lawful
under domestic law and pointed to Article 249 of the CAO, which
provided for the possibility of detaining a person for holding an
unauthorised demonstration, offending police officers and resisting
arrest. They insisted that there had been no breach of Article 5 §
1 of the Convention.
The
Court reiterates that the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to national law and state the obligation to
conform to the substantive and procedural rules thereof. However, the
“lawfulness” of detention under domestic law is not
always the decisive element. The Court must in addition be satisfied
that detention during the period under consideration was compatible
with the purpose of Article 5 § 1 of the Convention, which is to
prevent persons from being deprived of their liberty in an arbitrary
fashion (see Anguelova v. Bulgaria, no. 38361/97, § 154,
ECHR 2002-IV, and Fedotov v. Russia, cited above, § 74).
The
Court agrees with the parties that the applicants’ detention
fell within the ambit of Article 5 § 1 (c) of the Convention, as
it was imposed for the purpose of bringing them before the competent
legal authority on suspicion of having committed several offences.
There
is no dispute as to the fact that the police, when arresting the
applicants and taking them to the police station, followed the
procedure provided for by Article 249 of the CAO (see paragraph 24
above).
The
Court notes that the applicants were charged, inter alia, with
resisting arrest and insulting police officers. However, the domestic
courts, having viewed the video of the applicants’ arrest found
those charges unsubstantiated and dismissed them (see paragraphs 16
and 18 above). In such circumstances, and given the absence of any
“reasonable suspicion” within the meaning of Article 5 §
1(c), the Court considers that the applicants’ detention on
false charges that they had resisted arrest and insulted police
officers cannot be considered “lawful” under Article 5
§ 1 of the Convention.
As
to the last ground of the applicants’ detention, that is their
organising and holding an unauthorised demonstration, the Court notes
that they had a valid court judgment authorising the assembly.
Moreover, that judgment came into force immediately. The fact that
the Municipality refused to comply with it did not dispense the
police from the obligation to take it into consideration. These
findings are consistent with the findings of the Court of Appeal
which later finally dismissed the charges against the applicants
under Articles 174 § 1 (see paragraph 18 above). In such
circumstances, and bearing in mind the findings in paragraph 54
above, the Court finds that the applicants’ detention on this
ground too cannot be considered “lawful” under Article 5
§ 1 of the Convention.
There
has therefore been a breach of that provision.
V. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 2 AND 3 OF
THE CONVENTION
The
applicants also complained that they had not been informed promptly
about the reasons for their arrest and about the charges against them
and that they had not been brought promptly before a judge.
The
Court considers that it does not have to examine these complaints
separately, having found that the detention as a whole was contrary
to Article 5 § 1 of the Convention (see, Stepuleac v.
Moldova, no. 8207/06, § 83, 6 November 2007).
VI. 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
first applicant claimed 4,000 euros (EUR) in respect of non-pecuniary
damage. Mr Brega and Ms Galescu claimed EUR 3,000 each and the rest
of the applicants claimed EUR 2,500 each.
The
Government disagreed with these amounts and argued that they were
excessive and unsubstantiated.
The
Court awards EUR 4,000 to Hyde Park, payable to its representatives,
Mr A. Postică or Mr P. Postică, to be held and managed on
behalf of Hyde Park. It also awards EUR 3,000 to Mr Brega, EUR 3,000
to Ms Galescu and EUR 2,500 to each of the remaining applicants.
B. Costs and expenses
The
applicants also claimed EUR 3,600 for costs and expenses incurred
before the Court.
The
Government contested the amount and argued that it was excessive.
The
Court awards EUR 3,000 for costs and expenses. This sum should be
paid to the applicants’ representatives, Mr A. Postică
or Mr P. Postică, to be held
and managed on behalf of Hyde Park.
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
Declares unanimously the complaints under
Articles 3 of the Convention inadmissible;
Declares by a majority the complaints under
Articles 8 and 13 of the Convention inadmissible;
Declares unanimously the remainder of the
application admissible;
Holds unanimously that there has been a
violation of Article 11 of the Convention;
Holds unanimously that there is no need to
examine separately the complaint under Article 6 of the Convention;
Holds unanimously that there has been a
violation of Article 5 § 1 of the Convention;
Holds unanimously that there is no need to
examine the complaints under Article 5 §§ 2 and 3 of the
Convention;
Holds 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:
- 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;
Dismisses unanimously the remainder of the
applicants’ claim for just satisfaction.
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
Registrar President
