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HYDE PARK AND OTHERS v. MOLDOVA (nos. 5 and 6) - 6991/08 [2010] ECHR 1279 (14 September 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1279.html
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[2010] ECHR 1279
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FOURTH
SECTION
CASE OF
HYDE PARK AND OTHERS v. MOLDOVA (nos. 5 and 6)
(Applications
nos. 6991/08 and 15084/08)
JUDGMENT
STRASBOURG
14 September 2010
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 Hyde Park and
Others v. Moldova (nos. 5 and 6),
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 24 August 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in two applications (nos. 6991/08 and 15084/08)
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 four Moldovan
nationals, Mr Ghenadie Brega, Mr. Anatolie Juraveli, Mr Oleg Brega
and Mr Anatol Hristea-Stan (“the applicants”)
on 20 February 2008. They were born in 1975, 1988, 1973 and
1953 respectively. They live in Pepeni, Chişinău, Pepeni
and Chişinău respectively and are all members of Hyde Park.
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 Oleg Brega, Hyde Park's leader at
the time of the events. 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 in respect of three demonstrations
held on 30 August, 4 September and 10 September 2007.
On
8 April 2008 the President of the Fourth Section decided to give
notice of the applications to the Government. It was also decided to
examine the merits of the applications at the same time as their
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASES
1. Introduction
At
the time of the events in question, Hyde Park was registered with the
Moldovan Ministry of Justice as a non-governmental organisation
lobbying, inter alia, for freedom of expression and the right
to free assembly. In 2007 its members decided to discontinue
registration on grounds of alleged pressure and intimidation from 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, arbitrary
arrest of its members, attempts to shut down its newspaper and other
such interferences. Several of the organisation's leaders requested
political asylum in western countries and it was decided to continue
the activity under the same name but without being registered with
the State authorities. It was also decided that the new
unincorporated association would become the former organisation's
successor. After the striking of the organisation out of the
Government's list of non-governmental organisations, on 2 June 2008,
Hyde Park's activity continued on the basis of new articles of
association and all the activities were carried on. The association
continued editing its newspaper and its internet page and continued
staging protests and demonstrations.
2. The demonstration of 30 August 2007
On
23 July 2007 Hyde Park applied to the Municipal Council of Chişinău
for authorisation to stage a protest on 30 August 2007 in front of
the Ministry of Internal Affairs and the Prosecutor General's Office
against alleged acts of harassment of Hyde Park by those bodies.
On
20 August 2007 the Municipal Council authorised the protest, to be
staged on 30 August 2007 in front of the building of the Ministry of
Internal Affairs between 7.30 a.m. and 8.15 a.m. and in front of the
Prosecutor General's Office between 8.15 a.m. and 9 a.m. at a
distance of at least fifty metres from the buildings.
On
30 August 2007, at 7.30 a.m., the applicants started their protest in
front of the Ministry of Internal Affairs but were immediately
approached by a police officer who ordered them to stop the protest
because the Municipality's authorisation had been challenged by the
Prosecutor General's Office in court on 29 August 2007. The police
officer argued that according to the Law on the Prosecutor's Office,
the prosecutor's appeal against an administrative act suspended the
latter's action until after a court examined it. The applicants
refused to comply and argued that the authorisation was valid and
that their protest was peaceful. They relied on the provisions of the
Constitution of Moldova and on the Convention. Shortly
thereafter a police van arrived and Mr Ghenadie Brega, Mr Oleg Brega,
Mr Hristea-Stan and Mr Juraveli were arrested and taken to a police
station where they were questioned. At approximately 9.30 a.m. they
were released without explanation. They could not continue their
protest because the time indicated in the authorisation had lapsed.
The
same day a criminal complaint was lodged against the police officers
who carried out the arrests; however, the complaint was dismissed by
the head of the police station of the Centru District on 19 September
2007 on the ground that the authorisation contained numerous flaws
such as a failure to indicate the exact place of the protest and the
number of participants.
It
appears that the Prosecutor Office's appeal against the
Municipality's authorisation of 20 August 2007 has never been
examined by the courts.
3. The demonstration of 4 September 2007
On
30 August 2007 Mr Juraveli, the vice-president of Hyde Park, applied
to the Municipality for an authorisation to stage a protest in front
of the Ministry of Internal Affairs and the Prosecutor's Office
between 4 and 11 September 2007 against the allegedly abusive
suppression of its peaceful protest of the same date. In the
application he indicated that ten persons were to participate in the
demonstration and gave his name and those of Mr Oleg Brega and
Mr Hristea-Stan as those responsible for the conduct of the
demonstration.
The
Municipality did not adopt a decision in respect of the application
before the first date of the planned demonstration, on 4 September
2007. Therefore, at 9 a.m. that day the applicants started their
protest in front of the Ministry of Internal Affairs. At 9.25 a.m.
Ghenadie Brega, Oleg Brega and a Hyde Park member who is not an
applicant were arrested on the ground that the demonstration had not
been authorised. They were taken to a police station where they were
body searched and kept for approximately five hours. According to the
applicants the police examined and made copies of their documents
including personal letters. Two of them were placed in cages and
later in cells. Later they were taken to the Centru District Court
and, since the hearing was adjourned, they were released at 3 p.m.
On
21 September 2007 the Centru District Court examined the charges
against the applicants. The applicants argued that since the
Municipality had failed to examine their application for
authorisation before the date of the demonstration, they had the
right to hold the demonstration in accordance with section 12(5) of
the Assemblies Act. Moreover, they submitted that they had been told
by a representative of the local authorities that the Municipality
did not have time to deal with their request and that they could hold
their protest as planned. The court dismissed the applicants'
submissions and found that they had breached the provision of section
11(1) of the Assemblies Act by failing to submit the application
within fifteen days in advance of the planned assembly. According to
the court, the protest should have been held on 14 September 2007 at
the earliest. Ghenadie and Oleg Brega were found guilty of organising
an unauthorised demonstration and fined 800 Moldovan lei (MDL) each
(approximately 48 euros (EUR)). Another Hyde Park member who is not
applicant in the present case was fined MDL 200. The applicants'
appeal was dismissed by the Chişinău Court of Appeal on the
same grounds on 23 October 2007.
3. The demonstration of 10 September 2007
In
the meantime, on 7 September 2007, the Municipality examined the
application of 30 August 2007 (see paragraph 12 above) and issued an
authorisation to organise and stage a protest in front of the
buildings of the Ministry of Internal Affairs and the Prosecutor
General's Office between 8 and 11 September 2007 to Mr Juraveli.
In
the morning of 10 September 2007 several members of Hyde Park started
to protest in front of the buildings of the Ministry of Internal
Affairs and the Prosecutor General's Office; however, several minutes
later the police arrived and arrested three persons (Mr Juraveli, Mr
Oleg Brega and Mr Hristea-Stan) on the ground that the authorisation
did not contain the names of all the persons involved in the protest.
The Government maintained that they had been detained for breach of
the peace and for having shouted insults about the Minister for
Internal Affairs. At the police station those arrested were
questioned and searched. They were released after five hours. The
applicants maintained that, while detained, they were not allowed to
make any telephone calls or to contact a lawyer.
The
police filed administrative proceedings against the arrested persons;
however, on 21 September 2007 the Centru District Court decided to
discontinue the proceedings.
4. Letters to the Prosecutor General
On
5 September 2007, Mr Oleg Brega wrote to the Prosecutor General
making a criminal complaint in respect of the actions of the police
at the demonstrations of 30 August and 4 September. A further letter
to that effect was sent on 10 January 2008. The applicants maintain
that they did not receive an official response to either letter.
II. RELEVANT DOMESTIC LAW
Article
32 of the Constitution of the Republic of Moldova (on freedom of
opinion and of expression) reads as follows:
“(1) Each citizen is guaranteed freedom
of thought, of opinion, as well as freedom of expression in public
through words, images or through other available means.
(2) Freedom of expression shall not harm the
honour or dignity of others or the right of others to have their own
opinion.
(3) The law prohibits and punishes the
contestation and defamation of the State and the nation, calls to war
and aggression, national, racial or religious hatred, and incitement
to discrimination, territorial separatism, or public violence, as
well as other expression which endangers the constitutional order.”
Article
40 (on freedom of assembly) provides:
“All meetings, demonstrations, rallies,
processions or any other assemblies are free, and they may be
organised and take place only peacefully and without the use of
weapons.”
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.
Section 19
Participants at the assembly are required:
(a) to respect the present Act and other laws
referred to herein;
(b) to respect the instructions of the
organiser of the assembly, and decisions of the municipality or
police;
...
(e) to leave the assembly if asked by the
organiser, the municipality or the police.”
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
14 of the Civil Code (on compensation for damage) provides that any
person whose rights have been infringed may request full compensation
in respect of the damage thus caused.
The
relevant provisions of Law no. 1545 (1998) on compensation for damage
caused by the illegal acts of the criminal investigation organs,
prosecution and courts have been set out in this Court's judgment in
Sarban v. Moldova, no. 3456/05, § 54, 4 October 2005. In
the case of Belicevecen v. the Ministry of Finance (no.
2ra-1171/07, 4 July 2007) the Supreme Court of Justice found that a
person could claim damages on the basis of Law no. 1545 (1998)
only if he or she had been fully acquitted of all the charges against
him or her. Since Mr Belicevecen had been found guilty in respect of
one of the charges brought against him, he could not claim any
damages.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE
CONVENTION
In
their first application (no. 6991/08 – Hyde Park (no. 5))
the applicants complained that the suppression of the demonstration
of 4 September 2007 and the arrests made by the police were in
violation of their right to freedom of assembly as provided in
Article 11 of the Convention. In their second application (no.
15084/08 – Hyde Park (no. 6)) they made the same
complaint in respect of the demonstrations of 30 August 2007 and
10 September 2007. In their second application they also relied on
Article 10 of the Convention. Article 10 reads as follows:
“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. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
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.”
And Article 11 reads:
“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
Government contested those arguments.
A. Admissibility: the Government's two preliminary
objections
1. The parties' submissions
The
Government made two objections as to the admissibility of the
applications. First, in their observations in respect of both
applications, the Government submitted that none of the applicants
had victim status. The Government recalled that Hyde Park had been
dissolved on 22 April 2007 so, when the demonstration took place on 4
September 2007, the other applicants could not be members of the
organisation. The Government further submitted that, in his
application for authorisation of 30 August 2007, Mr Juraveli had
applied as a natural person (personne physique) and not for
Hyde Park. This was confirmed by the authorisation granted by the
Municipality to Mr Juraveli. He had not drawn the authorities'
attention to the fact that he was applying for authorisation on
behalf of Hyde Park or sought to challenge the terms of the
Muncipality's authorisation. There was simply no link between Mr
Juraveli as organiser of the demonstration and Hyde Park: it was
immaterial that he was vice-president of Hyde Park. Consequently,
Hyde Park could not be a victim for the purposes of Article 11.
Moreover, it was also clear from the police reports of the
demonstration, which the Government submitted to the Court, that
Mr Juraveli had not participated in the demonstration of 4
September. He could not be a victim, nor could the other applicants.
Second,
in respect of Hyde Park no. 15084/08, the Government also
submitted that there had been a failure to exhaust domestic remedies.
The applicants who had been arrested on 30 August 2007 had not made
any complaint to the hierarchical superiors of the police officers
involved when it was open to them to do so on the basis of section 7
of the Code of Administrative Contraventions. They could also have
made a complaint to the prosecutor. The applicants had also failed to
take domestic proceedings seeking damages for the alleged breaches of
their rights under Articles 32 and 40 of the Constitution, which
guaranteed freedom of expression and assembly. In respect of the
demonstration of 10 September 2007, after the proceedings before the
Centru District Court had been discontinued (see paragraph 17 above),
the applicants had not sought compensation for non-pecuniary damage,
as they were entitled to do under Article 14 of the Civil Code and
Law no. 1545 (1998) (see paragraphs 23 and 24 above).
In
respect of their victim status, the applicants replied that
Mr Ghenadie Brega and Mr Juraveli had been the president and
vice-president of the non-governmental organisation Hyde Park until
its dissolution. They considered the unincorporated association Hyde
Park to be its successor since it had the same name, same people as
members and founders, the same statute and so on. Mr Juraveli had
filled in the application for authorisation in his own name but under
his signature he had added “vice-president of the association
Hyde Park” and had provided details of the other participants,
who were also members of Hyde Park. They also observed that, under
section 11 of the Assemblies Act, only the organiser of a
demonstration could apply for authorisation but not the participants.
On the morning of 4 September 2007 Mr Juraveli arrived after the
other participants had been arrested, which was why he was not
arrested that day, but he was arrested several days later while
protesting peacefully in the same place.
The applicants also considered that, for the
demonstrations of 30 August and 10 September 2007, they had
exhausted domestic remedies. On previous occasions when they had
complained to prosecutors about the actions of the police at
demonstrations nothing had happened. The same was true of actions
under Article 14 of the Civil Code and Law no. 1545. Mr Ghenadie
Brega had lodged a complaint against the police officers but this had
been dismissed by the head of the police station of the Centru
District (see paragraph 10 above). There was no remedy that could be
used to challenge such a response. They had also made a criminal
complaint to the Prosecutor General, to which the Prosecutor General
had not replied.
2. The Court's assessment
As
a preliminary matter 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). The Court
considers that Hyde Park's capacity to pursue the proceedings is not
affected by its being unincorporated (see Hyde Park and Others v.
Moldova (no. 4), no. 18491/07, § 33, 7 April 2009, with
further references therein).
In
respect of the Government's first preliminary objection (as to the
victim status of the applicants) the Court also notes that, in Hyde
Park (no. 4) ibid, § 34, which also concerned a
demonstration held by Hyde Park and its members, the Government
objected that, since only Hyde Park applied for authorisation to hold
the demonstration, the other applicants could not claim to be
victims. That objection was dismissed on the grounds that the other
applicants had participated in the demonstration and had been
arrested and detained by the police. In the present case, the
Government make the opposite objection: that only Mr Juraveli had
applied for authorisation so Hyde Park could not be a victim. The
Court considers that it is evident from the case file, in particular
Mr Juraveli's application for authorisation of 30 August 2007 and his
addition of the words below his signature “vice-president of
the association Hyde Park”, that he was applying on behalf of
Hyde Park. Moreover, the Court considers it well-established in its
case-law that associations can be victims of an interference with the
right to freedom of peaceful assembly: see, for example, The
Gypsy Council and Others v. the United
Kingdom (dec.), no. 66336/01, 14 May
2002; Plattform “Ärzte für das Leben”
v. Austria, 21 June 1988, Series A no. 139; and Christians
against Racism and Fascism v. the United Kingdom, no. 8440/78,
Commission decision of 16 July 1980, Decisions and Reports 21,
p. 138. It therefore dismisses the Government's preliminary objection
in respect of Hyde Park.
However,
in respect of the victim status of Mr Juraveli as regards the
demonstration of 4 September 2007, the Court considers the
Government's preliminary objection to be well-founded. If Mr Juraveli
did not attend the demonstration, there could be no interference with
his Article 11 rights. It would stretch the concept of a victim too
far to find that it applied to anyone who argued that he would have
gone to a demonstration had it gone ahead. To do so would be to allow
an indeterminate number of people to complain that their Article 11
rights had been violated (see, mutatis mutandis, Patyi and
Others v. Hungary, no. 5529/05, §§ 25-28, 7 October
2008, where the authorities refused authorisation for a demonstration
which did not then take place: the Court found the organiser of the
planned demonstration was a victim but not forty-seven other
applicants who stated they would have participated in the
demonstration). The Court acknowledges that Mr Juraveli is closely
connected to Hyde Park and to its demonstrations; indeed it was he
who sought authorisation to hold a demonstration between 4 and
11 September. However, he has provided no evidence to indicate
when he arrived at the scene of the demonstration, nor has he shown
that he attempted to avail himself of his right to peaceful assembly
that day and was prevented from doing so by the authorities; the fact
that he was arrested at later demonstrations is relevant only to his
victim status in respect of those demonstrations. The Court therefore
upholds the Government's preliminary objection and declares that part
of the application concerning Mr Juraveli and the demonstration of 4
September 2007 inadmissible.
In
respect of the Government's second preliminary objection (the failure
to exhaust domestic remedies), the Court observes that, for the
demonstration of 30 August 2007, the applicants did in fact make
complaints to both the police officers' superior (the complaint made
to the head of the police station of Centru District) and to the
Prosecutor General. The former complaint was rejected on 19 September
2007 and the latter complaint never received a reply. Moreover, the
Government have not suggested that these were inappropriate or
ineffective remedies. The Court reiterates that, for the purposes of
exhaustion of domestic remedies, an applicant is not required to try
more than one avenue of redress when there are several available (see
Breabin v. Moldova,
no. 12544/08, § 33, 7 April 2009). Accordingly, the
Government's preliminary objection that the applicants should have
also tried to complain on the basis of section 7 of the Code of
Administrative Contraventions or taken proceedings on the basis of
Articles 32 and 40 of the Constitution must be dismissed.
For
the demonstration of 10 September, it is correct that, although Mr
Oleg Brega complained to the Prosecutor General in respect of the
actions of the police on 30 August and 4 September 2007, the same
step was not taken in respect of the actions of the police on 10
September 2007. As the applicants have stated, nothing happened when
they complained to the Prosecutor General about the actions of the
police at the demonstrations of 30 August and 4 September. The
Court considers, therefore, that it was reasonable for the applicants
to consider that a similar complaint in respect of the demonstration
of 10 September 2007 would have had no prospects of success (see,
mutatis mutandis, Castravet v. Moldova, no. 23393/05, §
25, 13 March 2007). However, the mere fact that one domestic remedy
is ineffective (and therefore does not need to be exhausted) does not
absolve an applicant of the duty to exhaust other remedies which may
prove effective. Consequently, the Court must also examine whether
the second remedy suggested by the Government, an action based on
Article 14 of the Civil Code and Law no. 1545 would have been
effective. The Court observes that the principal difference between
the demonstration of 10 September 2007 and those of 30 August
and 4 September is that, for the former, administrative proceedings
were brought by the police and discontinued by the Centru District
Court on 21 September 2007. Therefore, it would, in theory, have been
open to the applicants to commence proceedings for damages under Law
no. 1545 (see, by converse implication, Sarban v. Moldova, no.
3456/05, § 59, 4 October 2005). Nonetheless, as in any case
concerning the question of exhaustion of domestic remedies, the
burden of proof is on the Government claiming non-exhaustion to
satisfy the Court that an effective remedy was available in theory
and in practice at the relevant time, namely, that the remedy was
accessible, capable of providing redress in respect of the
applicant's complaints and offered reasonable prospects of success
(see Demopoulos and others v. Turkey [GC], nos. 46113/99 and
others, 1 March 2010; Apostol v. Georgia, no. 40765/02, §
36, ECHR 2006 XIV; and X. v. Ireland (dec.),
no. 14079/04, 15 December 2009, with further references). The
Court is not persuaded that the Government have met that burden in
the present case. In particular, they have failed to provide any
examples of successful actions based on Article 14 of the Civil Code
and Law no. 1545 which would indicate that an action brought by the
applicants would have stood a reasonable prospect of success.
Consequently, the Court is unable to find that the applicants should
have brought such an action and, accordingly, it rejects the
Government's preliminary objection in respect of the demonstration of
10 September 2007.
The Court notes that, for the demonstrations of 30
August, 4 September 2007 and 10 September 2007, the complaints
made by Hyde Park and the individual applicants (including Mr
Juraveli in respect of the demonstrations of 30 August and 10
September 2007) are not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It further notes that they are
not inadmissible on any other grounds. They must therefore be
declared admissible.
B. Merits
As
the Court has noted, the applicants relied only on Article 11 in
respect of the demonstration of 4 September 2007 but on Articles 10
and 11 in respect of the other two demonstrations. The Court
considers it appropriate to examine the applicants' complaints in
respect of each demonstration under Article 11, but it will do so in
the light of Article 10 (see Rai and Evans v. the United Kingdom
(dec.), nos. 26258/07 and 26255/07, ECHR 2009 ...).
1. The parties' submissions
a. The Government
For
the demonstration of 30 August 2007, the Government considered that
any interference with the applicants' rights was justified under
Article 11 § 2. The interference was prescribed by law. During
the demonstration, the police had asked to see the authorisation.
Those present had then been invited to the police station so that
their identities could be checked. They had been detained for no more
than forty minutes. The interference pursued the legitimate aim of
preventing disorder and protecting the honour and dignity of the
Minister of Internal Affairs and was proportionate to that aim. The
demonstration was clearly provocative; the participants had held
signs and chanted slogans which were calculated to insult the
Minister of Internal Affairs.
For
the demonstration of 4 September 2007, the Government considered that
there had been no interference with the applicants' freedom of
assembly. They relied on their preliminary objection that only
Mr Juraveli had applied for authorisation to demonstrate.
Moreover, the applicants had failed to follow the statutory
procedures for obtaining authorisation. The applicants were seasoned
protestors and thus familiar with those procedures; mere disagreement
with the law was not a reason for disobeying it. Since 31 August 2007
was a public holiday and 1 and 2 September were a Saturday and
Sunday, 4 September was only the second working day after the
application for authorisation: this demonstrated the bad faith of the
applicants. Even if there were an interference it was prescribed by
law: section 11 of the Assemblies Act provided that demonstrations
could only take place if fifteen days' notice had been given to the
relevant municipality. That notice period was reasonable within the
terms of the Court's judgment in Bączkowski and Others v.
Poland, no. 1543/06, § 83, ECHR 2007 VI and it was
accessible and foreseeable. It pursued the legitimate aim of the
prevention of disorder or crime and was necessary in a democratic
society. The applicants had been taken to an administrative court –
not a criminal one – and they had been given fines which were
only 80% of the maximum fine which could have been imposed. This was
a proportionate fine. The Court's observations in Ziliberberg v.
Moldova (dec.), no. 61821/00, 4 May 2004 were apposite: since
States had the right to require authorisation, they had to be able to
apply sanctions to those who participated in demonstrations that did
not comply with that requirement. The need for prior authorisation
was particularly important because authorisation then imposed a
number of duties on the municipality to ensure that the demonstration
passed off peacefully, for example by protecting the demonstration
from counter-demonstrations. Moreover, the District Court had
examined diligently whether authorisation had been obtained and
whether the Municipality had complied with the relevant deadlines
imposed on it by the Assemblies Act.
For
the demonstration of 10 September 2007, the Government maintained
that any interference with the applicants' Article 11 rights was
prescribed by law. According to the Government, the authorisation for
the demonstration had been given to Mr Juraveli in his individual
capacity and not in the name of Hyde Park. However, the demonstrators
had chanted slogans in the name of Hyde Park and expressed their
opinions as to the supposedly illegal actions of the police at
previous demonstrations. When asked, those present at the
demonstration had refused to explain this discrepancy to the police.
In accordance with section 19(e) of the Assemblies Act, the police
had therefore ordered that the demonstration be stopped. When those
present refused, they were taken to the police station so that their
identities could be checked.
The
behaviour of the police had pursued a legitimate aim. As with the
demonstration of 30 August 2007, the demonstration was clearly
provocative; the participants had again held signs and chanted
slogans which were calculated to insult the Minister of Internal
Affairs. When the police intervened, the applicants insulted them
too. The police had also become concerned as to the possibility of an
altercation between Mr Oleg Brega and a passer-by.
As to
the proportionality of any interference, the Government underlined
that authorisation had been given for the demonstration; it was only
when the discrepancy between the authorisation and those
participating became apparent that the police had intervened. The
participants had been detained to allow the police to make legitimate
enquiries as to whether the demonstration was being conducted within
the terms of the authorisation. There had also been a real danger of
violence between the participants and the passer-by and the police
were justified in ordering that the demonstration be stopped in order
to prevent such violence occurring. Finally, the Government relied on
the fact that the District Court had discontinued the proceedings
brought against the applicants.
b. The applicants
The
applicants contested the Government's submissions in respect of each
demonstration. For the demonstration of 30 August 2007, the
applicants submitted that a video of the demonstration showed that
they had been arrested earlier and detained for much longer than the
Government suggested. There had been no reason to arrest them. Their
demonstration had been peaceful and the authorisation papers could
have been checked in the street or at the end of the demonstration.
As a consequence, none of the requirements of Article 11 § 2 had
been met.
For
the demonstration of 4 September 2007, they argued that
a fifteen-day notice period had been considered too long,
even by the national courts: the Supreme Court had found that
non-compliance with this requirement was not a reason to ban a
demonstration. Their demonstration had been peaceful and threatened
no one. It was wholly unnecessary to arrest everyone who
participated. The fines were excessive: MDL 800 was a third of
Ghenadie Brega's monthly salary and, for Oleg Brega, who was
unemployed at the time, it was a huge amount to have to pay.
Finally,
for the demonstration of 10 September 2007, they relied on their
submissions in respect of the demonstration of 30 August. In
addition, they contended that Mr Oleg Brega and Mr Hristea-Stan had
also been organisers of the demonstration. Their names had been
included in the authorisation among those who were responsible for
the good conduct of the demonstration; they had shown this document
to the police at the scene so there had been no need for the police
to arrest them. Their version of events was borne out by the video
they had taken at the demonstration, which they submitted to the
Court.
c. The Court's assessment
i. The demonstration of 30 August 2007
For
the first demonstration, that of 30 August 2007, the Court considers
that the arrest of Mr Ghenadie Brega, Mr Oleg Brega, Mr Hristea Stan
and Mr Juraveli prevented the demonstration from taking place.
Consequently, there is no doubt that there has been an interference
with Article 11 of the Convention; the mere fact that these
applicants were seasoned protestors does not mean that they lose the
protection of Article 11. The Court also notes that the parties
disagreed as to whether the police's actions were prescribed by law.
However, 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 Court further notes that 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 (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 the relevant principles were set out in its
judgment in Hyde Park and Others (no. 4),
cited above, §§ 50-52:
“...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).
51. 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).
52. 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 demonstration of 30 August 2007, the
Court is not persuaded by the Government's submission that it was
necessary to arrest the applicants and take them to a police station
simply to check whether the demonstration had been properly
authorised. The applicants, when asked, had produced the
authorisation papers. It has not been suggested that those papers
were not in order and it remains unclear as to why a further identity
check was necessary. In the Court's opinion, even assuming that such
a check were necessary, as the applicants have observed, it could
have been carried out at the demonstration, or shortly after it had
ended. Instead, by arresting the demonstrators and taking them to the
police station, the demonstration was ended prematurely. Furthermore,
in terms of the justification for the arrests, the Court finds that
little relevance can be attached to the provocative nature of the
demonstration. The applicants sought to protest against alleged
harassment by the Ministry of Internal Affairs. The street outside
the Ministry was clearly the most appropriate place to carry out such
a protest. Even if their signs and chants were calculated to insult
the Minister, he was clearly a public figure of some prominence in
Moldova. In a democratic society, greater tolerance should be shown
to those expressing opinions which are critical of such figures, even
if those opinions are expressed inarticulately or intemperately. As
the Court stated in Sergey Kuznetsov v. Russia, no. 10877/04,
§ 45, 23 October 2008: “any measures interfering with the
freedom of assembly and expression other than in cases of incitement
to violence or rejection of democratic principles – however
shocking and unacceptable certain views or words used may appear to
the authorities – do a disservice to democracy and often even
endanger it.” For these reasons, the Court concludes that the
arrest of the four men was disproportionate and thus that it was not
necessary in a democratic society. Accordingly, there has been a
violation of Article 11 of the Convention in respect of the
demonstration of 30 August 2007.
ii. The demonstration of 4 September 2007
For
the demonstration of 4 September 2007, for the same reasons as for
the demonstration of 30 August 2007, the Court finds that the arrest,
detention and fining of the applicants amounted to an interference
with their rights under Article 11. There is again a dispute as to
whether this interference was prescribed by law and pursued a
legitimate aim and again the Court considers that the issue of the
lawfulness of the interference is indissociable from the question
whether the interference was proportionate. For the following reasons
it is also unnecessary to decide whether it pursued a legitimate aim.
In
assessing the proportionality of the interference, the Court notes
that the demonstration of 4 September 2007 was carried out without
the prior authorisation of the Municipality. Therefore, as in Rai
and Evans, cited above, the Court considers the starting point of
its assessment must be Ziliberberg, cited above, where it
noted that:
“Where [meetings in public thoroughfares] are
concerned, their subjection to an authorisation procedure does not
normally encroach upon the essence of the right. Such a procedure is
in keeping with the requirements of Article 11 § 1, if only in
order that the authorities may be in a position to ensure the
peaceful nature of a meeting, and accordingly does not as such
constitute interference with the exercise of the right ...
... the requirement to obtain authorisation for a
demonstration is not incompatible with Article 11 of the Convention.
The Court considers that since States have the right to require
authorisation, they must be able to apply sanctions to those who
participate in demonstrations that do not comply with the
requirement. ....”
A
pre-authorisation system not being, in principle, incompatible with
Article 11, the Court went on in Ziliberberg to find that that
system would be rendered “illusory” if Article 11 were to
prohibit sanctions for a failure to obtain such authorisations. The
applicant in that case was a student who had participated in an
unauthorised demonstration, who had been arrested and detained for
five and a half hours and who had later been given an administrative
fine of MDL 36 (EUR 3). The Court, in finding the Article 11
complaint to be manifestly ill-founded, noted that the penalty was at
the lower end of the scale and, while it was heavy relative to the
applicant's revenue (a monthly stipend of MDL 50-60), it did not
appear to be disproportionate to the legitimate aim pursued.
In
Oya Ataman v. Turkey, no. 74552/01, ECHR 2006 XIII, the
police used pepper spray to disperse demonstrators at an unauthorised
demonstration. The Court observed that the demonstrators had been
informed a number of times that their march was unlawful and would
disrupt public order at a busy time of day, and had been ordered to
disperse. However, there is no evidence to suggest that the group in
question represented a danger to public order, apart from possibly
disrupting traffic. The Court was particularly struck by the
authorities' impatience in seeking to end the demonstration and
considered the police's forceful intervention to have been
disproportionate. The Court reached similar conclusions in Balçık
and Others v. Turkey, no. 25/02, 29 November 2007, where the
police dispersed an unlawful but peaceful demonstration, allegedly
with truncheons and tear gas, in Ekşi and Ocak v. Turkey,
no. 44920/04, 23 February 2010, and in Aytaş
and Others v. Turkey, no. 6758/05, 8 December
2009, where the applicants suffered serious
injuries at the hands of the poilce.
In
Bukta and Others v. Hungary, no. 25691/04, ECHR 2007 IX,
the applicants became aware of the Hungarian Prime Minister's
attendance at a reception the day before that reception was to take
place. It being impossible to provide the necessary three days'
notice, they decided to hold an unauthorised demonstration opposite
the reception. Upon hearing a sharp noise, and considering that it
posed a threat to the reception, the police forced the demonstrators
to a nearby park. The Court found that a prior-authorisation
procedure did not normally encroach upon the essence of the right to
peaceful assembly. However, in special circumstances when an
immediate response, in the form of a demonstration, to a political
event might be justified, a decision to disband the ensuing, peaceful
assembly solely because of the absence of the requisite prior notice,
without any illegal conduct by the participants, amounted to a
disproportionate restriction on freedom of peaceful assembly.
A
different result was reached in Éva Molnár v.
Hungary, no. 10346/05, §§ 37 and 38, 7 October 2008,
where the Court made clear that the principle established in Bukta
and Others could not be extended to the point that the absence of
prior notification could never be a legitimate basis for crowd
dispersal. The right to hold spontaneous demonstrations could
override the obligation to give prior notification to public
assemblies only in special circumstances, namely if an immediate
response to a current event was warranted in the form of a
demonstration. In particular, such derogation from the general rule
(of prior notification) could be justified if a delay would have
rendered that response obsolete. In that case, there were no such
special circumstances and the fact that the police did not break up
the demonstration for several hours was a further reason for the
finding of no violation.
Special
circumstances were also found not to exist in Skiba v. Poland
(dec.), no. 10659/03, 7 July 2009, where the applicant, as the
organiser of a demonstration, was fined for deliberately failing to
give prior notification. The application was declared inadmissible as
manifestly ill-founded, notably because the authorities had not
broken up the demonstration, the fine was among the least severe
sanctions which could have been imposed and it had been imposed to
prevent further infractions rather than punish the applicant for what
had been said at the demonstration.
In
Rai and Evans, cited above, the applicants were prosecuted for
an unauthorised demonstration in a designated, security sensitive
zone. That application was also manifestly ill-founded. The sanctions
concerned only unauthorised demonstration in such zones. The
applicants had not suggested that there was no time to apply for an
authorisation and the police gave the applicants an opportunity to
disband without the imposition of any sanction. Moreover, the
sanctions imposed were not severe: one applicant was given a fine at
the lowest end of the statutory scale, the other was given no fine at
all, and each had to pay only a modest contribution to the
prosecution's costs.
In
the present case the Court considers that the demonstration of
4 September 2007 bears closest resemblance to Rai and Evans
and Skiba. In contrast to the Turkish cases cited above, there
is no suggestion that the police used excessive force in disbanding
the present applicants. In contrast to Bukta, cited above, and
in common with Éva Molnár, there are no special
circumstances which would have justified an immediate response from
the present applicants in the form of an unauthorised demonstration.
They were demonstrating against what they considered to be the
abusive suppression of the first demonstration, that of 30 September
2007: there is no evidence that the effect of their second
demonstration would have been any less had they waited to obtain the
necessary authorisation. Consequently, the Court is prepared to
accept that the lack of authorisation might have been regarded as a
relevant consideration had the police asked the applicants to
disperse and reassemble only when they had obtained authorisation.
However,
in the Court's view, there are critical differences between the
present case and Rai and Evans and Skiba. In Rai and
Evans, the security zone in which the applicants demonstrated was
a further reason for the proportionality of the sanction. By
contrast, in the present case, no security zone existed at the site
of the demonstration of 4 September 2007 and, consequently, the
location of the demonstration was not, in itself, a relevant or
sufficient reason for breaking it up. In Skiba, the police did
not take any steps to break up the demonstration and the sanction was
only imposed later and only then as a preventative measure; in the
present case, Ghenadie and Oleg Brega were arrested in the course of
the demonstration. Most importantly, the Court is struck by the level
of fines imposed on Ghenadie and Oleg Brega. In contrast to the fines
imposed in Rai and Evans and Skibu, these fines were
not at the lower end of the scale: they were 80% of the maximum fines
which could have been imposed and, moreover, were over twenty times
the fine imposed and found by the Court to be proportionate in
Ziliberberg. For these reasons, the Court concludes that the
arrest of Ghenadie and Oleg Brega and the fines imposed upon them
were disproportionate and thus were not necessary in a democratic
society. Accordingly, there has also been a violation of Article 11
of the Convention in respect of the demonstration of 4 September
2007.
iii. The demonstration of 10 September
2007
The
Court is similarly persuaded that the arrest of Mr Juraveli, Mr Oleg
Brega and Mr Hristea-Stan amounted to an interference with the
applicants' Article 11 rights. As with the other two demonstrations,
it considers it appropriate to consider the lawfulness and
proportionality of that interference together, while leaving
unanswered the issue of whether the interference pursued a legitimate
aim.
Just
as for the demonstration of 30 August 2007, the Court is not
persuaded by the Government's argument that, on 10 September 2007, it
was necessary for the police to arrest those present in order to
check their identities. From the video of the demonstration submitted
by the applicants it is clear that, when asked, the applicants
provided the police with the authorisation of the Municipality. It is
also clear that, in the course of the eighteen-minute video, several
police officers checked that authorisation and questioned the
applicants, including Mr Juraveli. In the Court's opinion, that
should have been enough to satisfy the police that the demonstration
could go ahead; it is wholly unclear to the Court what further
enquiries could have been made at the police station in order for the
police to satisfy themselves that the demonstration was being
conducted within the terms of the authorisation.
The
Government have argued that the police were justified in making the
arrests in order to prevent violence. The video does show a passer-by
remonstrating with one demonstrator but that took place in the few
first minutes of the demonstration and the passer-by had left the
demonstration long before the police decided to arrest the
applicants. For the most part, the video shows that the demonstration
took place in the most peaceful manner possible and with minimal
disruption to the public. It was well conducted and restrained.
Although slogans were shouted in the course of the demonstration,
this is a well established feature of peaceful protest. Moreover, in
the context of the case, where the applicants had already been twice
arrested for carrying out demonstrations, the Court readily
understands their desire to do so. In failing to allow the applicants
to conduct their peaceful demonstration, the police failed to show
the necessary tolerance which is to be expected of the authorities in
a democratic society. For those reasons, the Court finds that the
arrest of Mr Juraveli, Mr Oleg Brega and Mr Hristea-Stan on 10
September 2007 was disproportionate and thus that it was not
necessary in a democratic society. Accordingly, there has also been a
violation of Article 11 of the Convention in respect of the
demonstration of 10 September 2007.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
In
Hyde Park (no. 5) the applicants also complained that the
proceedings before the Centru District Court and Court of Appeal were
unfair as the courts did not give sufficient reasons in their
judgments. They relied on Article 6 § 1 of the Convention, which
where relevant provides:
“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
Court considers that this complaint should be declared admissible.
However, the Court also considers that, having regard to its
conclusion in respect of Article 11, this complaint does not raise a
separate issue that requires examination by the Court.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicants also complained that the proceedings before Centru
District Court and Court of Appeal were excessively long and thus in
further violation of Article 6 § 1. The Court observes that
these proceedings lasted little over a month before two courts: this
is not unduly lengthy and the complaint must be declared manifestly
ill-founded pursuant to Article 35 § 3 of the Convention.
The
final complaint made by the applicants in Hyde Park (no. 5)
is that, in violation of Article 8 of the Convention, they were
unlawfully subjected to body searches. This Article provides:
“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
Court observes that the applicants have not raised this complaint in
any of the domestic proceedings in the case. Consequently, they have
failed to exhaust domestic remedies and this complaint must also be
declared inadmissible pursuant to Article 35 § 1 of the
Convention.
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
In
the application Hyde Park (no. 5) (that concerning the
demonstration of 4 September 2007), the applicants did not claim
anything in respect of pecuniary damage. For non-pecuniary damage,
they sought EUR 5,000 in respect of Hyde Park (to reflect
discrimination it had suffered at the hands of the authorities for
five years) and EUR 1,000 for each individual applicant. In Hyde
Park (no. 6) (that concerning the other two demonstrations),
the applicants argued that, as regards pecuniary damage, Ghenadie and
Oleg Brega should each be awarded EUR 100, to compensate them for the
fines they paid, which involved several court hearings and trips to
the town of Singerei to pay the fines. For non-pecuniary damage, they
sought EUR 3,000 for Hyde Park and EUR 1,000 for each applicant.
The
Government contested these claims. For the pecuniary damage claim,
they considered that the fines had been lawfully imposed and that the
applicants had not submitted any documents, which showed any
additional losses had been incurred. For the non-pecuniary damage
claims, the Government considered it inappropriate to make any award
to Hyde Park and that the individual applicants' claims were
excessive.
In
respect of the claim for pecuniary damage, the Court agrees with the
Government that the additional claims for court hearings and the trip
to Singerei are not itemised and that no award should be made in that
respect. However, it has found that the fines were imposed in
violation of Article 11. It therefore awards Ghenadie and Oleg Brega
EUR 48 each.
In
respect of non-pecuniary damage, the Court recalls that in Hyde
Park (no. 4), where it found a violation of Article 11 in respect
of one demonstration, it awarded Hyde Park EUR 4,000. Having regard
to the fact that the present case involved three separate
demonstrations, albeit of a more limited nature than the
demonstration in Hyde Park (no. 4), it considers a
higher award is justified. Ruling on an equitable basis, the Court
awards Hyde Park EUR 6,000. This should be paid to the applicants'
representative, Mr Oleg Brega, to be held and managed on behalf of
Hyde Park. For the individual applicants, having regard to the fact
that, in the course of the three demonstrations, Mr Ghenadie Brega,
Mr Juraveli, and Mr Hristea-Stan were arrested and detained twice and
Mr Oleg Brega was arrested three times, the Court, ruling on an
equitable basis, awards EUR 2,000 each to Mr Ghenadie Brega, Mr
Juraveli, and Mr Hristea-Stan and EUR 3,000 to Mr Oleg Brega.
B. Costs and expenses
In
Hyde Park (no. 5), the applicants also claimed EUR 500 for the
costs and expenses incurred before the Court; in Hyde Park (no. 6)
they claimed EUR 300.
The
Government observed that the applicants were represented by Mr Oleg
Brega, who was himself an applicant. In any event, these costs and
expenses had not been itemised and had not been actually and
necessarily incurred.
The
Court recalls that in order for costs and expenses to be recoverable
under Article 41 of the Convention, it must be established that they
were actually and necessarily incurred, and reasonable as to quantum
(see, among other authorities, D.G. v. Ireland,
no. 39474/98, § 128, ECHR 2002 III). The
Court notes that no itemised statements were provided in relation to
the costs and expenses of Mr Oleg Brega. Consequently, it makes no
award under these heads.
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
Decides to join the applications;
Declares inadmissible the complaint under
Article 6 § 1 concerning the length of proceedings before the
Centre District Court and the Court of Appeal, the complaint under
Article 8 and Mr Juraveli's Article 11 complaint in respect of the
demonstration of 4 September 2007;
Declares the remainder of the application
admissible;
Holds that there has been a violation of Article
11 of the Convention in respect of each demonstration;
Holds that no separate issue arises under
Article 6 § 1 of the Convention regarding the alleged failure of
the domestic courts to give sufficient reasons;
Holds
(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 6,000 (six thousand euros) for non-pecuniary damage.
This sum is to be paid to the applicants' representative, Mr Oleg
Brega, to be held and managed on behalf of Hyde Park;
-
to Mr Ghenadie Brega EUR 2,048 (two thousand and forty-eight euros)
for pecuniary and non-pecuniary damage;
- to Mr Oleg Brega EUR 3,048 (three thousand and forty-eight euros)
for pecuniary and non-pecuniary damage;
- to Mr Juraveli EUR 2,000 (two thousand euros) for non-pecuniary
damage;
- to Mr Hristea-Stan EUR 2,000 (two thousand 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; and
(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 the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 14 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
