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GENDERDOC -M v. MOLDOVA - 9106/06 [2012] ECHR 1000 (12 June 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/1000.html
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[2012] ECHR 1000
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THIRD
SECTION
CASE OF
GENDERDOC-M v. MOLDOVA
(Application
no. 9106/06)
JUDGMENT
STRASBOURG
12 June
2012
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 Genderdoc-M v. Moldova,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Egbert Myjer,
Ján
Šikuta,
Ineta Ziemele,
Luis López
Guerra,
Kristina Pardalos, judges,
and Santiago
Quesada, Section
Registrar,
Having
deliberated in private on 10 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 9106/06)
against the Republic of Moldova lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Moldovan non-governmental organisation,
Genderdoc-M (“the applicant association”), on 7 March
2006.
2. The
applicant association was represented by Ms Natalia Mardari, a lawyer
practising in Chisinau. The Moldovan
Government (“the Government”) were represented by their
Agent, Mr Vladimir Grosu.
3. As
Mr Mihai Poalelungi, the judge elected in respect of Moldova, had
withdrawn from the case (Rule 28 of the Rules of Court), the
President of the Chamber appointed Mr Ján
Šikuta to
sit as an ad hoc
judge (Article 26 § 4 of
the Convention and Rule 29 § 1 of the Rules
of Court).
On
23 May 2008 the application was
communicated to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
5. Third-party
comments were received from the International Commission of Jurists,
which had been given leave by the President to intervene in the
written procedure (Article 36 § 2 of the Convention and Rule 44
§ 3 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant, Genderdoc-M, is a non-governmental organisation based in
Moldova whose object is to provide information and to assist the LGBT
community.
On
7 April 2005 the applicant association applied to Chişinău
Municipal Council for authorisation to hold a peaceful demonstration
in front of the Parliament on 27 May 2005, to encourage the adoption
of laws to protect sexual minorities from discrimination.
On
27 April 2005 the Chişinău Municipal Council rejected the
application on the ground that the applicant association’s
demonstration was baseless, since a law on the protection of national
minorities had already been adopted.
On
6 May 2005 the Mayor’s Office also refused permission for the
proposed demonstration, on the grounds that there was a law on the
protection of national minorities already in place and that there
were legal provisions which dictated which individuals had the power
of legislative initiative required to promote laws.
The
applicant association contested the decision of the Chişinău
Mayor’s Office of 6 May 2005. It argued that the ban on their
demonstration was illegal and discriminatory.
On
2 June 2005 the Chişinău Court of Appeal allowed the
applicant association’s action and declared the Chişinău
Mayor’s Office decision of 6 May 2005 void. Chişinău
Court of Appeal found the following:
“...The court considers legally ungrounded the
arguments relied on by the defendant to justify its refusal to
authorise the assembly, as the law does not provide such grounds for
the non-authorisation of an assembly. The decision as to whether to
authorise or not to authorise an assembly should not be made
conditional either on the nature of the problems the participants
intend to bring to society’s attention, or on the status of
those problems.
Under these circumstances the court concludes that the
decision of the Mayor’s Office dated 6 May 2005 was issued
contrary to the provisions of Article 26 (1) of the Law regarding
administrative complaints, and was thus illegal and void. As to the
plaintiff’s other complaints, including the Mayor’s
Office’s non compliance with the time-limit of forty-eight
hours for notification of the refusal of authorisation for the
assembly required under section 14 of the Law regarding the
organisation and conduct of assemblies, the court declares them
ill founded.”
12. The
Chişinău Mayor’s
Office appealed against the decision of the Chişinău
Court of Appeal of 2 June 2005. The Mayor’s
Office argued that they had received many requests from
individuals and associations which were vehemently against the
authorisation of the demonstration, and who opposed the adoption of
any law legalising homosexual partnerships. The requests had laid
emphasis on various legal provisions that concerned the protection of
marriage and the family.
On
7 September 2005 the Supreme Court of Justice allowed the appeal
lodged by the Mayor’s Office,
quashed the Chişinău Court
of Appeal decision of 2 June 2005 and decided to send
the case to the Court of Appeal for re-examination.
In
their submissions to the Court of Appeal, the Mayor’s Office
argued that the holding of an assembly for the promotion of the
rights of sexual minorities would endanger public order and social
morality and, moreover, that the organisers had not assumed any
responsibility as regards the demonstration’s good management.
The
applicant association argued that the ban was illegal and
discriminatory.
On
14 June 2006 the Court of Appeal found against the applicant
association. The applicant association appealed against this
decision.
On
18 October 2006 the Supreme Court of Justice upheld the decision of
the Court of Appeal of 14 June 2006. It found that the applicant
association had failed to give undertakings as regards a number of
obligations required by the law in respect of assemblies, such as: to
respect the law; to designate a person or persons in charge of the
conduct of the demonstration; to create together with the police a
group of people responsible for the maintenance of public order; to
mark the site of the demonstration with special signs; to pay the
Municipal Council any fees related to the arrangement of the site of
the demonstration; to establish the route to and from the site of the
demonstration; to provide the police with unfettered access to the
site of the demonstration; and to forbid the participation of certain
persons. Moreover, the court considered that there was a risk that
the demonstration would cause a breach of public order.
II. RELEVANT DOMESTIC LAW
Law
no. 560-XIII of 21 July 1995 regarding the organisation and conduct
of assemblies provides, as relevant, the following:
“Section 5 – Notification of Assemblies
Assemblies may be held only after the organisers have
duly notified the urban mayor’s (municipal) or rural offices.
Section 11 – Preliminary notification
(1) The organiser of an assembly must lodge a
notification with the mayor’s office at least fifteen days
before the chosen date, according to the model provided in the
appendix which is part of the present law.
(2) The preliminary notification should
indicate:
(a) the name of the organiser, the aim of the
assembly;
(b) the date and time the assembly is to
begin and end;
(c) where the assembly will take place and
the routes to and from the place;
(d) the form the assembly will take;
(e) the approximate number of participants;
(f) those appointed to ensure the good
conduct of the assembly and to be responsible for it;
(g) the services the organisers require from
the mayor’s office.
(3) The Mayor’s Office may in justified
cases modify, with the organiser’s consent, elements of the
preliminary notification.
Section 13
After examining the preliminary declaration, the Mayor’s
Office shall issue one of the following decisions and inform the
organiser about it:
(a) grant permission;
(b) refuse permission under section 12 (6).
Section 15
(1) The organiser can contest the refuse to
authorise an assembly.
(2) The relevant judicial body shall decide
upon the organiser’s contestation within 5 days from its
lodging.”
Section
34 of Law no. 123 of 18 March 2003 regarding local public
administration provides that:
“(1) ... the Mayor undertakes the
following functions over... administered territory:
1. in the field of legal order:
...
(f) Undertakes legal measures regarding the
conduct of public assemblies: ...
(g) Undertakes measures forbidding or
suspending shows, presentations and other public demonstrations which
contradict legal order and morals.”
The
Moldovan Constitution contains the following relevant provisions:
“Article 54 - Restricting the Exercise of Certain
Rights or Freedoms
(1) The exercise of certain rights or
freedoms may be restricted only under the law and only as required
for: the defence of national security, of public order, health or
morals, of citizens’ rights and freedoms, the carrying out of
investigations in criminal cases, the prevention of the consequences
of a natural calamity or of a technological disaster.
(2) The restrictions enforced must be in
proportion to the situation that caused them, and may not affect the
existence of that right or liberty.”
The
Moldovan Civil Code stipulates in Article 184:
“An
association is a non-commercial organisation established voluntarily
by associated individuals and legal entities under provisions of the
law on the basis of community of interests, which are consistent with
public order and good morals, for the purpose of meeting various
non-material needs.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
The
applicant association complained of a violation of its right to
peaceful assembly. It claimed that the ban imposed on it on holding a
demonstration had not been in accordance with the law, had not
pursued any legitimate aim and had not been necessary in a democratic
society. It relied on Article 11 of the Convention, which reads as
follows:
“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.”
In
their observations lodged on 15 September 2008 the Government agreed
that there was an interference with the applicant’s right to
freedom of assembly, but argued that this interference was justified
so as it had a legitimate aim, was prescribed by law and pursued a
legitimate aim. The Government pointed out that 98% of the Moldovan
population was Christian Orthodox, religion that does not tolerate of
sexual relations or marriage between people of the same gender. The
Government attached requests sent by the Moldovan population to the
Chişinău Mayor’s
Office asking for the ban of the assembly at issue.
On
1 April 2010 the Government lodged a new set of observations in which
it agreed that there had been a violation of Article 11 of the
Convention.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
Government have admitted that there has been a violation of Article
11 of the Convention.
In
the circumstances of the case, the Court finds no reason to hold
otherwise. There has, accordingly, been a violation of this Article.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 11
The
applicant complained under Article 13 in conjunction with Article 11
of the Convention that they did not have an effective remedy against
the alleged violation of their freedom of assembly. They complained
that there was no effective procedure which would have allowed them
to obtain a final decision prior to the date of the planned
demonstrations. Article 13 of the Convention reads:
“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.”
The
Government contested this allegation, claiming that the applicant had
had the opportunity to bring judicial proceedings and had availed
themselves of it.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The Government
The
Government argues that the applicant association had the benefit of
Article 192 of the Civil Procedure Code, which provides for judicial
priority treatment. In addition, the judgement of the Plenum of the
Supreme Court of Justice no. 17 of 19 June 2000 held that in the
event of lack of an effective remedy concerning the violation of a
right provided by the Convention, the Supreme Court of Justice is
called upon to make use of the principle of direct applicability of
the Convention. The Government argued that the applicant association
had failed to cite those arguments in front of the domestic courts.
(b) The applicant association
The
applicant association complained that Article 13 of the Convention
had been breached because it did not have at their disposal a
procedure that would have allowed it to obtain a final decision
before the date of the planned assembly, and that the provisions of
Law no. 560-XIII of 21 July 1995 were not clear and
foreseeable.
The
applicant association argued that the Moldovan authorities took
longer than necessary to deal with their case and that they had never
offered a coherent reason as to why they had banned the assembly.
2. The Court’s assessment
The
Court reiterates that the effect of Article 13 is to require the
provision of a domestic remedy allowing the competent national
authority both to deal with the substance of the relevant Convention
complaint and to grant appropriate relief, although Contracting
States are afforded some discretion as to the manner in which they
comply with their obligations under this provision (see, among
others, Chahal v. the United Kingdom, judgment of
15 November 1996, Reports 1996 V, pp. 1869 70,
§ 145).
In
the present case the Court found that the applicants’ rights
under Article 11 had been infringed (see paragraph 30 above).
Therefore, they had an arguable claim within the meaning of the
Court’s case-law and were thus entitled to a remedy satisfying
the requirements of Article 13.
The
Court has previously held that applicants have been denied an
effective domestic remedy in respect of their complaint concerning a
breach of their freedom of assembly in a case where the authorities
were not obliged by any legally binding time frame to give their
final decisions before the planned date of the demonstration. The
Court was not persuaded that the remedies available to the
applicants, all of them being of a post hoc character,
could provide adequate redress in respect of Article 11 of the
Convention. Instead, the Court found that the notion of an effective
remedy implies the possibility of obtaining a ruling concerning the
authorisation of the event before the time at which it is intended to
take place (see Bączkowski and Others v. Poland,
no. 1543/06, ECHR 2007-VI, §§ 79-84, and Alekseyev
v. Russia, nos. 4916/07, 25924/08 and 14599/09, judgement of 21
October 2010, §§ 97-100).
Turning
to the facts of the case, the Court observes that Moldovan
legislation provides for time-limits for trials involving the right
of assembly. More precisely, section 11 of Law no. 560-XIII requires
the organiser of an assembly to lodge their request with the Mayor at
the latest fifteen days before the proposed event.
Section
12 § 1 requires the administrative authorities to respond to
requests concerning the right of assembly at the latest five days
before the proposed event.
If
the Mayor bans the proposed event, organisers can lodge a complaint
against the ban. In this case, the competent judicial authority is
required by Section 15 § 2 of the same law to provide a response
within five days, without expressly mentioning that the response
should be delivered before the proposed event.
The
Court notes that in the present case, despite the 5 days time-line
prescribed by Law no. 560-XIII, the applicant’s request to hold
a demonstration was finally replied to a year and a half after it had
been lodged.
The
Court is therefore not persuaded that the judicial remedy available
to the applicant in this case, which was of a post-hoc character,
could have provided adequate redress in respect of the alleged
violations of the Convention (Alekseyev v. Russia, § 99).
Taking
into account all the above-mentioned arguments, the Court finds that
the applicant has been denied an effective domestic remedy in respect
of the complaint concerning a breach of the right freedom of assembly
and concludes that there has been a violation of Article 13 in
conjunction with Article 11 of the Convention in the present case.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 11
The
applicant association further complained that it had been
discriminated against in comparison with other associations due to
the fact that it promoted the interests of the gay community in
Moldova. It relied on Article 14 in conjunction with Article 11 of
the Convention. These provisions are worded in the following way:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
“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 that argument.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The Government
The
Government argued that the applicant association was not
discriminated against in this case by the Moldovan authorities on the
ground of sexual orientation. The Government contended that during
2002-2006 there was a general problem in Moldova concerning the right
of assembly and a general intolerance towards demonstrations. The
Government made reference to the cases of Hyde Park 1, 2, 3, 4 v.
Moldova, The Christian Democratic Popular Party v. Moldova
and Roşca, Secăreanu and others v. Moldova, in
which the applicants’ demonstrations, which had various aims,
were banned.
(b) The applicant association
The
applicant association argued that the assembly at issue was banned
due to the fact that it promoted the interests of and was organised
by the gay community. The applicant association alleged that,
starting from 2005, all its demonstrations were banned and that
it continued to experience difficulty in organising events.
The
applicant association rejected the Government’s argument that
there was general intolerance towards the right of assembly in
Moldova and argued instead that during the relevant time the
Government had continued to authorise demonstrations. Thus, documents
submitted by the applicant indicate that during 2004-06 the
“Republican Organisation of Cheated and Stripped Investors”,
the “United Gagauzia Movement”, the “Association
for the Elimination of the Consequences of the Molotov-Ribbentrop
Pact” and the “Association of the Former Deported People
and Political Prisoners” were allowed to hold demonstrations in
various locations. In each of these cases the Chisinău Mayor’s
Office guaranteed the participation and support of the General Police
Department.
Lastly,
the applicant association argued that the Government’s argument
about 98% of the Moldovan population being Christian Orthodox, about
their moral and religious values and the petitions adduced as
evidence (see above paragraph 24), indicates that the demonstration
was banned because of the sexual orientation of the organisers and
because the applicant association was promoting the rights of the
LGBT community.
(c) Third-party intervention
The
International Commission of Jurists and ILGA-Europe submitted that
the protection of morals is not and can never be an objective and
reasonable justification under Article 14 of the Convention.
They
have argued that conceptions of what is moral are relative and change
over time. Because it is so fluid, is a particularly difficult
criterion for a court or legislature to apply. They have concluded
that its characteristics militate against giving public morality an
expansive effect.
2. The Court’s assessment
The
Court has repeatedly held that Article 14 is not autonomous but
has effect only in relation to Convention rights. This provision
complements the other substantive provisions of the Convention and
the Protocols. It has no independent existence, since it has effect
solely in relation to “the enjoyment of the rights and
freedoms” safeguarded by those provisions. Although the
application of Article 14 does not presuppose a breach of those
provisions – and to this extent it is autonomous – there
can be no room for its application unless the facts at issue fall
within the ambit of one or more of the latter (see, among other
authorities, Van Raalte v. the Netherlands,
21 February 1997, § 33, Reports 1997-I, and Gaygusuz
v. Austria, 16 September 1996, § 36, Reports
1996-IV).
It
is common ground between the parties that the facts of the case fall
within the scope of Article 11 of the Convention. Hence,
Article 14 is applicable to the circumstances of the case.
The
Court reiterates that a difference in treatment is discriminatory if
it has no objective and reasonable justification, that is, if it does
not pursue a legitimate aim or if there is not a reasonable
relationship of proportionality between the means employed and the
aim sought to be realised. The Contracting States enjoy a certain
margin of appreciation in assessing whether and to what extent
differences in otherwise similar situations justify different
treatment in law; the scope of this margin will vary according to the
circumstances, the subject matter and its background (see Inze
v. Austria, 28 October 1987, § 41, Series A no. 126,
and Genovese v. Malta, no. 53124/09,
§§ 43-44, 11 October 2011).
The
Court reiterates that sexual orientation is a concept covered by
Article 14 (see, among other cases, Kozak v. Poland,
no. 13102/02, 2 March 2010).
Furthermore,
when the distinction in question operates in this intimate and
vulnerable sphere of an individual’s private life, particularly
weighty reasons need to be advanced before the Court to justify the
measure complained of.
Where
a difference of treatment is based on sex or sexual orientation the
margin of appreciation afforded to the State is narrow, and in such
situations the principle of proportionality does not merely require
the measure chosen to be suitable in general for achievement of the
aim sought; it must also be shown that it was necessary in the
circumstances. Indeed, if the reasons advanced for a difference in
treatment were based solely on the applicant’s sexual
orientation, this would amount to discrimination under the Convention
(ibid., § 92).
The
Court observes that in the present case the Government argued that
the applicant association was not discriminated against on the basis
of sexual orientation. Instead, the Government made the point that
the applicant association’s demonstration was banned due to the
existence of a systemic problem as to the right of assembly in
Moldova during the period 2004-2006. The Court cannot agree with the
Government, for the following reasons.
First,
the Court observes that the applicant adduced as evidence decisions
of the Chisinău Mayor’s Office allowing various assemblies
and which had been adopted during the same period of time referred to
by the Government (see above paragraph 44). The Government failed to
offer an explanation as to this difference in treatment between the
applicant association and the above-mentioned associations.
Second,
the Court considers that the reason for the ban imposed on the event
proposed by the applicant was the authorities’ disapproval of
demonstrations which they considered to promote homosexuality. In
particular, the Court highlights that the Chişinău Mayor’s
Office – a decision-making body in the applicant’s case –
has insisted two times before the Court of Appeal that the
applicant’s assembly should be banned due to the opposition of
many Moldovan citizens to homosexuality (see above paragraph 12).
Furthermore,
the Court holds the view that when limiting the right of assembly,
national authorities should offer clear reasons for so doing.
However, as highlighted above, in the present case each authority
which dealt with the applicant association’s request to hold a
demonstration rejected it for a different reason.
In
view of the above, the Court holds the view that there has been a
violation of Article 14 in conjunction with Article 11 of the
Convention in the present case.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
relying on the same account of the facts, the applicant association
also alleged a violation of Articles 6 § 1 and 10 of the
Convention.
57. Having examined the
complaints, the Court notes that they have virtually the same factual
basis as the complaints it has examined in previous sections of this
judgment.
58. Consequently, it
considers that no separate examination of the complaints under
Articles 6 § 1 and 10 of the Convention is necessary.
V. 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
applicant association claimed 860 euros (EUR) in respect of pecuniary
damage, representing travel expenses and other costs related to
organising the event that was banned.
The
Government argued that these costs have no causal link with the
alleged violation.
The
Court, taking into account its case-law and the evidence submitted by
the applicant association as to the pecuniary damage incurred, awards
the applicant association EUR 860 in respect of pecuniary damage.
The
applicant association also claimed EUR 7,250 in respect of
non-pecuniary damage.
The
Government argued that in recent cases where the Court found a
violation of Article 11, it awarded EUR 3,000 in respect of
non-pecuniary damage.
The
Government argued that a critical approach should be exercised by the
Court in these circumstances.
Having
regard to the fact that the present case involved banning a
demonstration in violation of Articles 11, 13 and 14 of the
Convention, the Court, ruling on an equitable basis, awards the
applicant association the requested amount, namely EUR 7,250 in
respect of non-pecuniary damage.
B. Costs and expenses
The
applicant association also claimed EUR 2,856 for the costs and
expenses incurred before the domestic courts and for those incurred
in the proceedings before the Court. They submitted itemised claims,
bills and supporting documents.
The
Government considered this part of the claims excessive.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to the amount. The Court notes that the costs and
expenses were incurred over a period of five years. The amounts
incurred by the applicant association on account of legal fees do not
appear excessive or disproportionate to the work performed.
Therefore,
regard being had to the documents in its possession and the above
criteria, the Court considers it reasonable to award the applicant
association the amounts claimed in full. It makes an aggregate award
of EUR 2,900, plus any tax that may be chargeable to the applicant
association.
C. Default interest
The
Court considers it appropriate that the default interest rate 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 COUR
Declares the application
admissible unanimously;
Holds unanimously that
there has been a violation of Article 11 of the Convention;
Holds unanimously that
there has been a violation of Article 13 in conjunction with Article
11 of the Convention;
Holds by five votes to two that
there has been a violation of Article 14 in conjunction with Article
11 of the Convention;
5. Holds unanimously that there is no
need to examine separately Article 6 § 1 and
Article 10 of the Convention;
Holds by six votes to one
(a) that
the respondent State is to pay the applicant association, within
three months of the date on which the judgment becomes
final in accordance with Article 44 § 2 of the
Convention, the following amounts, to be converted into
Moldovan lei at the rate applicable on the date of settlement:
(i) EUR
860 (eight hundred and sixty euros), plus any tax that may be
chargeable, in respect of pecuniary damage;
(ii) EUR
7,250 (seven thousand two hundred and fifty euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage;
(iii) EUR
2,900 (two thousand nine hundred euros), plus any tax that may be
chargeable to the applicant association, in respect of costs and
expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 12 June 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinions of Judges
Myjer, Gyulumyan and Ziemele are annexed to this judgment.
J.C.M.
S.Q.
CONCURRING OPINION OF JUDGE MYJER
I
voted with the majority in finding a violation of Article 14 in
conjunction with Article 11.
Still,
I am not convinced by the underlying reasoning laid down in the
judgment.
What
happened in this case? The applicant in 2005 applied for
authorisation to hold a peaceful demonstration in front of the
Parliament, to encourage the passing of laws to protect sexual
minorities. The authorisation was not given. The official reason for
this refusal was that the demonstration was baseless, since a law on
national minorities had already been passed (see paragraphs 8 and 9
of the judgment).
Interestingly,
later on, when the applicant appealed, all of a sudden other totally
new reasons were put forward by the authorities:
- the
Mayor’s Office had received many requests from individuals and
associations who were vehemently against the authorisation of the
demonstration and who opposed the passing of any law legalising
homosexual relationships (see paragraph 12);
- the
holding of an assembly for the promotion of the rights of sexual
minorities would endanger public order and social morality, and,
moreover, the organisers had not assumed any responsibility as
regards the demonstration’s good management (see paragraph 14).
If
the authorities had stuck to the initial reasons given and no other
evidence had been available, it would have been hard for the Court to
establish discrimination, provided that the authorities meant to
include sexual minorities among national minorities. Owing to the
fact that the authorities chose to invent and put forward new
reasons, the authorities themselves provided the underlying material
to enable the Court to establish a discriminatory intent. Looking at
the different reasons and the sequence in which they were given, one
can now safely deduce that the first reasons given were only designed
to cover up the real reasoning behind the refusal. The same applies
to the last reasons given: it would be totally unrealistic to accept
that the permission was initially refused because the organisers had
not assumed any responsibility as regards the demonstration’s
good management. Admittedly, the Supreme Court in its decision of 18
October 2006 paid much attention to this new line of reasoning. But
if that had been the real reason behind the refusal, it should have
been put forward right at the beginning. And again, if that had been
the case, it would have been hard for the Court to establish an
intent to discriminate.
That
leaves us with the simple conclusion that the refusal must have had
to do with a reason which the authorities did not dare to mention.
And the only logical reason which is left is: they did not give
authorisation because apparently they did not want a demonstration
which had to do with the rights of sexual minorities/homosexuals. Is
it fair to draw that conclusion? Yes, in the circumstances of the
case, this is possible. The first new line of reasoning, as referred
to in paragraph 12, is sufficiently conclusive in this regard.
Maybe
the authorities did in fact refuse the authorisation because of, as
the majority put it, their “disapproval of demonstrations which
they considered to promote homosexuality” (see paragraph 54 of
the judgment). However, I wonder where the majority find any
indication that a proposed demonstration to encourage the passing of
laws to protect sexual minorities was also intended to promote
homosexuality as such, or that the authorities considered that the
demonstration would promote homosexuality.
JOINT DISSENTING OPINION OF JUDGES GYULUMYAN AND ZIEMELE
We
do not share the view of the majority regarding the violation of
Article 14 in conjunction with Article 11 as set out in their
reasoning. The majority base their view on two main grounds. First,
they find that the Government have not convincingly proved their
allegation that there was a systemic problem concerning the exercise
of freedom of assembly. The Government claimed that assemblies were
not allowed in general, whereas the applicant association showed that
some assemblies had in fact been allowed. The majority consider that
this fact indicates a difference in treatment in relation to the
applicant association. Second, the majority find that the arguments
of the Chişinău Mayor’s Office in the court
proceedings were of a discriminatory character. The majority also
state that all the relevant levels of authority provided different
reasons.
This
is one possible way of reading the arguments of the parties in the
case. There is, however, another way of interpreting these arguments.
For example, the statement by the Mayor’s Office that it had
received protest letters from numerous Moldovan citizens asking it to
prohibit the gay parade is most likely true. The fact that the
Mayor’s Office brought this fact to the attention of the
national courts per se does not confirm that it adopted a
discriminatory attitude or, for that matter, that the national courts
agreed or disagreed with its request. In the final instance the
national courts mentioned two grounds for their decision to uphold
the ban imposed by the Mayor’s Office. The first ground was the
danger to public order and morality and the second ground was that
the organisers had not complied with the prescription of the law
requiring them to accept responsibility for the event. These reasons
in themselves are neither discriminatory nor unreasonable. The fact
that two different compositions of the same court might disagree on
the outcome of the case is not arbitrary in itself either.
What
should have been the test to be applied in this case? The majority
correctly refer to the principles developed in Kozak v. Poland
(no. 13102/02, 2 March 2010), in which the Court said that where
a difference in treatment was based solely on sexual orientation, it
constituted a violation of the Convention. In view of this criterion,
the majority should have assessed whether the applicant association’s
assembly was banned solely on this ground, as compared to the other
bans of assemblies that the Government referred to, in relation to
which the Court has had the opportunity to render several judgments
regarding the same period of time. The Government argued that there
was a general atmosphere of intolerance towards different views at
the time in Moldova. It certainly cannot be said that the applicant
association was the only group whose right to assembly was restricted
(contrast Oršuš and Others v. Croatia [GC], no.
15766/03, § 155, ECHR 2010). There may indeed be some truth
in what the Government stated about the rather intolerant political
situation in the country at the time.
The
Court’s case-law under Article 14 requires a detailed analysis
of whether a difference in treatment is discriminatory if we assume
that the applicant association was treated differently from others.
Such a difference in treatment will amount to discrimination if “it
has no objective and reasonable justification”, that is, if it
does not pursue a “legitimate aim” or if there is not a
“reasonable relationship of proportionality” between the
means employed and the aim sought to be realised (see, among many
other authorities, Larkos v. Cyprus [GC], no. 29515/95, §
29, ECHR 1999-I; Stec and Others v. the United Kingdom
[GC], no. 65731/01, § 51, ECHR 2006-VI; and D.H. and Others
v. the Czech Republic [GC], no. 57325/00, § 196, ECHR
2007 IV). Where the difference in treatment is based on
race, colour or ethnic origin, the notion of objective and reasonable
justification must be interpreted as strictly as possible (see
Sampanis and Others v. Greece, no. 32526/05, § 69, 5
June 2008). We might add that in view of the Kozak case (cited
above), sexual orientation should be added to this list.
As
far as we can see, there were reasonable arguments submitted by the
Government in explaining the actions of the authorities (see
paragraph 17 of the judgment). The crux of the matter really
lies in an assessment of the proportionality of the difference in
treatment, as compared to other possible assemblies that were or were
not allowed for the same reasons of public order. This analysis is
missing. There is an all too easy assumption that the decisions of
the national authorities were discriminatory. As we said, this might
well be true but in a judicial decision, something more is needed to
come to that conclusion.
