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BREGA AND OTHERS v. MOLDOVA - 61485/08 [2012] ECHR 107 (24 January 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/107.html
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[2012] ECHR 107
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THIRD
SECTION
CASE OF BREGA AND OTHERS v. MOLDOVA
(Application
no. 61485/08)
JUDGMENT
STRASBOURG
24
January 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 Brega and Others v.
Moldova,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Ján Šikuta,
Luis López
Guerra,
Nona Tsotsoria,
Mihai Poalelungi,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 4 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 61485/08)
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
four Moldovan nationals, Mr Ghenadie Brega, Mr Anatolie
Hristea-Stan, Mr Gheorghe Lupusoru and Mr Vasile Costiuc
(“the applicants”), on 16 December 2008.
The
applicants were represented by Mr A. Postica, a lawyer practising in
Chişinău. The Moldovan Government (“the
Government”) were represented by their Agent, Mr V. Grosu.
3. The
applicants alleged, in particular, breaches of their right to freedom
of expression and assembly and of their right to liberty.
On
15 November 2010 the Court
decided to give notice of the application to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1975, 1953, 1969 and 1981
respectively, live in Pepeni, Chişinău,
Ungheni and Chişinău respectively and are all
members of Hyde Park, a Chişinău-based non-governmental
organisation.
A. The events of 27 March 2008
On 27 March 2008 the first and the fourth applicants
participated in a public gathering in the Stefan cel Mare park in
Chişinău on the occasion of the anniversary of the 1918
reunification of Bessarabia with Romania. The demonstration had been
authorised by the Chişinău Municipality. At approximately
11.30 a.m. the applicants were arrested and taken to the police
station, where they were charged with resisting arrest and insulting
police officers.
In a video filmed by the applicants, one of the police
officers can be seen requesting identity papers from one of the
participants in the demonstration. After the identity card is
presented to the police officer, one of the police officers orders
the applicants to follow him to the police station and the applicants
comply without any resistance. The applicants were released several
hours later.
On 26 May 2008 the Buiucani District Court finally
acquitted the applicants of all charges in view of a lack of evidence
against them. The court found that the accusations made against the
applicants were groundless as they were not confirmed by any of the
witnesses.
On
an unspecified date one of the applicants lodged a criminal complaint
against the police officers who had arrested them. However, on 30 May
2008 the complaint was dismissed as manifestly ill-founded.
B. The events of 22 April 2008
On
22 April 2008 a new Assemblies Act entered into force under which no
authorisation was needed for spontaneous gatherings and for
gatherings with a limited number of participants. On the same date,
at approximately 10.40 a.m., the first, second and fourth applicants
organised a demonstration in front of the residence of the President
of Moldova. According to them, they intended to express their joy at
the entering into force of the new Assemblies Act and to encourage
the people to assemble freely. After a short time the applicants were
approached by several police officers who ordered them to leave. The
applicants refused and argued that according to the new law they had
a right to protest peacefully without any authorisation. Later the
applicants were arrested and taken to the police station. They were
held for several hours and charged with the offences of holding an
unauthorised demonstration, resisting arrest and insulting police
officers.
On
8 May 2008 the Buiucani District Court acquitted the applicants of
all charges in view of a lack of incriminating evidence against them.
The court found that the applicants had a legal right to protest in
front of the residence of the President of Moldova without any
authorisation and that the charges concerning resisting and insulting
police officers were groundless.
On
an unspecified date the applicants lodged a criminal complaint
against the police officers who had arrested them. However, it was
dismissed as manifestly ill-founded.
C. The events of 30 April 2008
On
30 April 2008 the National Television company organised a celebration
on the occasion of its fiftieth anniversary. A member of Hyde Park,
O.B., who is not an applicant in this case, attempted to protest
against censorship at National Television in front of the concert
hall in which the celebration was taking place. He was draped in a
banner bearing the inscription “50 years of lies” and was
accompanied by the first, second and third applicants, one of whom
was filming the event.
After
approaching the concert hall, O.B. was approached by a group of
police officers who surrounded him and ordered him to vacate the
premises of the concert hall. O.B. and the three applicants entered
into a verbal clash with the police officers and refused to leave.
They argued that they had the right to protest and that the actions
of the police were unlawful. After several minutes of dispute O.B.
was physically attacked by a person in plain clothes. O.B. and the
applicants requested the assistance of the police and shouted that
the attack had been provoked by the police. They were immediately
arrested and taken to the police station, where they were charged
with the offences of holding an unauthorised demonstration, resisting
arrest and insulting police officers. They were released several
hours later.
On
18 June 2008 all the applicants and O.B. were finally acquitted by
the Chişinău Court of Appeal of all charges in view of a
lack of incriminating evidence against them. The court reached this
conclusion after viewing the video of the event and concluding that
the applicants’ demonstration had been peaceful and that they
had been attacked by a another individual.
On
an unspecified date the applicants lodged a criminal complaint
against the police officers who had arrested them. However, it was
dismissed as manifestly ill-founded.
D. The events of 18 December 2008
In
December 2008 the Government decided to celebrate Christmas
exclusively on 7 January, according to the old religious calendar,
and to have a Christmas tree installed in the central square of
Chişinău only in the last few days of December so as to
bypass the celebration of Christmas on 25 December by the
adherents of the new religious calendar.
In
spite of that decision the Chişinău local government, which
was represented by a political majority different from that of the
central Government, decided to install a Christmas tree in the middle
of December and to organise celebrations on the occasion of the new
religious calendar Christmas. On 16 December 2008 a truck
transporting the municipality’s Christmas tree was stopped by
the police and the tree was confiscated.
In
the morning of 18 December 2008 a group of Hyde Park members,
including the first and second applicants, attempted to organise a
protest demonstration in front of the Ministry of Internal Affairs in
order to express their concern about the actions of the police. The
first applicant was arrested on the street while walking towards the
building of the Ministry of Internal Affairs carrying a small
Christmas tree. He was taken to the police station and charged with
the offence of organising an unauthorised demonstration. He was
released several hours later. The second applicant was near a
trolleybus stop when a group of six plain-clothes police officers
forced him into a trolleybus. They cornered him and, in spite of his
protests, released him only approximately eight minutes and several
stops later. The applicants submitted a video of this.
On
18 December 2008 the first applicant was acquitted in view of a lack
of incriminating evidence against him.
On
an unspecified date the first and second applicants lodged a criminal
complaint against the police officers. However, on 2 February 2009
the complaint was dismissed as manifestly ill-founded.
E. The events of 3 February 2009
On
3 February 2009 the first applicant organised a protest demonstration
in front of the Prosecutor General’s Office together with
approximately twenty participants who are not applicants in this
case. The aim of the demonstration was to denounce the inaction of
the Prosecutor General’s Office in connection with abuses by
the police. Several minutes after the beginning of the demonstration
the protesters were attacked by seven men wearing masks, who started
to beat them up and spray them with tear gas. The protesters defended
themselves and managed to immobilise two attackers. One of the
attackers admitted to having been paid 1,000 Moldovan lei (MDL)
by an unknown person to participate in the attack. A police unit
patrolling nearby did not intervene to put an end to the clash
between the protesters and the attackers. The protesters called the
police and requested the assistance of the police officers who were
guarding the Prosecutor General’s Office, but to no avail.
According
to the applicants, the organisers of the demonstration lodged a
criminal complaint with the Prosecutor General’s Office;
however, no action was taken. The applicants were unable to present
proof that they had lodged the complaint and argued that the relevant
documents had been seized by the police on the occasion of an
unlawful search of Hyde Park’s premises.
The
Government disputed that the applicants had complained to the
Prosecutor’s Office in respect of the events of 3 February
2009.
II. RELEVANT DOMESTIC LAW AND PRACTICE
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 and of opinion, as well as freedom of expression in public
through words, images or other available means.
(2) Freedom of expression shall not be
prejudicial to the honour or dignity of others or the right of others
to have their own opinion.
(3) The law prohibits and punishes the
calling into question 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 any 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, but 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 the protection of participants and
the environment must be ensured, without impeding the normal use of
public highways, road traffic or the operation of businesses, and
without degenerating into acts of violence capable of endangering
public order or the physical integrity or 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 public authorities, local authorities,
prosecutors’ offices, 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 be responsible for
the proper 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 five
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 may reject an
application to hold an assembly only if, after consulting the police,
they have 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 an application to
hold an assembly shall be reasoned and presented in writing. It shall
contain reasons for the refusal to issue the authorisation...
Section 15
(1) The organiser of the assembly may
challenge the refusal in the administrative courts.
Section 19
Participants in 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.”
On 22 February 2008 Parliament adopted a new
Assemblies Act under which no authorisation was needed for the
holding of demonstrations with less than fifty participants.
The
relevant provisions of the Criminal Code read as follows:
“Article 166. Illegal deprivation of
liberty
(1) Illegal deprivation of liberty, other
than kidnapping, shall be punishable by 120-240 hours of community
work or imprisonment for up to two years.
(2) The same offence committed
b) against two or more persons;
d) by two or more persons;
shall be punishable by imprisonment for three to eight
years.
Article 184. Violation of the right to
freedom of assembly
(1) Violation of the right to freedom of
assembly by way of the illegal hindering of a demonstration, rally or
act of protest, or the preventing 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 do
not pose a danger to life or health,
shall be punishable by a fine of four to eight thousand
Moldovan lei or by community work of 180-240 hours, or by
imprisonment for up to two years.”
The relevant provisions of the Code of Administrative
Offences (“the CAO”), in force at the material time,
read:
“Article 174 § 1
2. The organisation and holding of an
assembly without prior notification of 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 of up to MDL 300 or detention for 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 for up to fifteen days.”
According
to Article 249 of the CAO, persons who disobey in bad faith the
lawful orders of police officers, or resist or insult police
officers, may be detained until their case is examined by a court.
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
The
applicants complained that the suppression of the demonstrations and
the arrests made by the police were in violation of their rights to
freedom of expression and assembly as provided in Articles 10 and 11
of the Convention. In respect of the events of 3 February 2009, the
first applicant complained under Article 11 of the Convention that
the State had not discharged its positive obligation to protect his
right to freedom of assembly. The applicants also complained under
Article 5 § 1 of the Convention that their deprivation of
liberty had been unlawful. Article 5 § 1 reads as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court;
(b) the lawful arrest or detention of a
person for non- compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order
for the purpose of educational supervision or his lawful detention
for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.
Article
10 of the Convention reads:
“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.”
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.”
I. ADMISSIBILITY OF THE CASE
The
Government submitted that there had been a failure to exhaust
domestic remedies by the applicants. In respect of the events of 27
March, 22 April, 30 April and 18 December 2008, it had been open to
the applicants to seek compensation in accordance with Law no. 1545
(see paragraph and 30 above) after their acquittal. As to the events
of 3 February 2009, the Government submitted that the first applicant
had not even complained to the Prosecutor’s Office.
The
applicants considered that they had exhausted domestic remedies. In
so far as the events of 27 March, 22 April, 30 April and 18 December
2008 were concerned, they argued that the remedy provided by Law no.
1545 was not effective. As to the events of 3 February 2009, they
argued that a complaint had been lodged with the Prosecutor General’s
Office; however, they did not have proof of that complaint because
the relevant documents had been seized by the police during an
unlawful search at Hyde Park’s premises, a search which is the
subject of another application pending before the Court.
The
Court notes that, in respect of the demonstrations of 27 March,
22 April, 30 April and 18 December 2008, the applicants, in so
far as they were concerned, complained to the Prosecutor General’s
Office but received no reply or their complaints were dismissed. The
Government have not suggested that complaining to the Prosecutor’s
Office was an inappropriate or ineffective remedy. 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 Brega v. Moldova,
no. 52100/08, § 31, 20 April 2010, and Hyde Park and
Others v. Moldova (nos. 5 and 6), nos. 6991/08 and 15084/08, §
33, 14 September 2010). Accordingly, the Government’s
preliminary objection that the applicants’ complaints in
respect of the demonstrations of 27 March, 22 April, 30
April and 18 December 2008 should be declared inadmissible for
failure to exhaust domestic remedies must be dismissed.
The
situation is different, however, in respect of the demonstration of 3
February 2009 since the Court has not been provided with any evidence
to the effect that the applicants made any attempts to exhaust
available remedies. This part of the complaint must therefore be
rejected for non-exhaustion of domestic remedies pursuant to Article
35 §§ 1 and 4 of the Convention.
The
Court considers that the applicants’ complaints concerning the
demonstrations of 27 March, 22 April, 30 April and 18 December
2008 raise questions of fact and law which are sufficiently serious
that their determination should depend on an examination of the
merits, and no grounds for declaring them inadmissible have been
established. The Court therefore declares them admissible.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicants argued that their arrest and detention had been unlawful
and arbitrary and had therefore been in breach of Article 5 § 1
of the Convention.
The
Government did not dispute the existence of a deprivation of liberty
in each case. However, they reiterated their contention that the
application was inadmissible for failure to exhaust domestic
remedies.
The
Court reiterates that the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to national law and state the obligation to
conform to the substantive and procedural rules thereof. However, the
“lawfulness” of detention under domestic law is not
always the decisive element. The Court must in addition be satisfied
that detention during the period under consideration was compatible
with the purpose of Article 5 § 1 of the Convention, which is to
prevent persons from being deprived of their liberty in an arbitrary
fashion (see Anguelova v. Bulgaria, no. 38361/97, § 154,
ECHR 2002-IV, and Fedotov v. Russia, no. 5140/02, § 74,
25 October 2005).
The
Court considers that the applicants’ detention in respect of
all the demonstrations (except for the second applicant’s
detention on 18 December 2008) fell within the ambit of Article
5 § 1 (c) of the Convention, as it was imposed for the purpose
of bringing them before the competent legal authority on suspicion of
having committed an offence.
There
is no dispute as to the fact that the police, when arresting the
applicants and taking them to the police station, followed the
procedure provided for in Article 249 of the CAO.
The
Court notes that the applicants were arrested and charged with the
offences of insulting police officers and resisting arrest. It
appears clearly from the videos submitted, and this was confirmed by
the domestic courts which acquitted the applicants, that the
accusations against them were false and that they had not done any of
the things they were accused of. In such circumstances, and given the
absence of any “reasonable suspicion” within the meaning
of Article 5 § 1(c), the Court considers that the applicants’
detention on false charges that they had resisted arrest and insulted
police officers cannot be considered “lawful” under
Article 5 § 1 of the Convention (see Brega, cited above,
§ 38).
As
regards the second applicant’s deprivation of liberty on
18 December 2008, the Court notes that the Government did
not dispute that there had been a deprivation of liberty. Moreover in
the light of the Court’s established case law in this field
(see Engel and Others v. the Netherlands, 8 June 1976, §§
58-59, Series A no. 22 and Guzzardi v. Italy, 6 November 1980,
§§ 92-95, Series A no. 39) it would appear that the
applicant’s situation did in fact amount to such a deprivation.
In addition, the Government did not give any explanation for the
actions of the police and it would therefore appear that the
deprivation of liberty did not fall within the scope of any of the
exceptions to the rule of personal liberty listed in sub-paragraphs
(a) to (f) of Article 5 of the Convention. It is true that the
applicant’s deprivation of liberty lasted for a very limited
period of time. However, it appears clearly from the materials of the
case that the police officers’ intention was to hinder him from
taking part in the demonstration by driving him away from its scene.
The deprivation of liberty was sufficiently long to make it
impossible for the applicant to achieve his goal of participating in
the demonstration.
In view of the context and of the special circumstances of the case
the Court considers that the second applicant’s deprivation of
liberty was arbitrary and unlawful.
Accordingly,
there was a violation of Article 5 § 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
The
applicants maintained that there had been a violation of Article 11
of the Convention.
The
Government did not dispute the existence of an interference with the
applicants’ right to freedom of assembly. However, they
reiterated their contention that the application was inadmissible for
failure to exhaust domestic remedies.
The
Court considers that the applicants’ arrest constituted
“interference by [a] public authority” with their right
to freedom of assembly under the first paragraph of Article 11. Such
interference will entail a violation of Article 11 unless it is
“prescribed by law”, has an aim or aims that are
legitimate under paragraph 2 of the Article and is “necessary
in a democratic society” to achieve such aim or aims.
The
Court notes that the applicants’ protests were staged in
accordance with the old and new laws concerning assemblies (see
paragraphs 26 and 27 above), that they remained peaceful, and that
they did not disturb public order in any way. This conclusion is
supported by the videos attached to the case-file and by the
conclusions of the domestic courts which acquitted the applicants. In
such circumstances, the interference with their right of assembly
cannot be considered lawful under domestic law. Accordingly, there
has been a violation of Article 11 of the Convention.
IV. alleged violation of Article 10 of the Convention
The
applicants also alleged a violation of Article 10 of the Convention.
As this complaint relates to the same matters as those considered
under Article 11, the Court does not consider it necessary to examine
it separately.
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
first applicant claimed 10,000 euros (EUR) in respect of
non-pecuniary damage, and the other applicants claimed EUR 5,000
each.
The
Government disagreed and argued that the claims were excessive and
unsubstantiated.
Having
regard to the violations found above, the Court considers that an
award of compensation for non-pecuniary damage is justified in this
case. Making its assessment on an equitable basis, the Court awards
the entire amounts claimed.
B. Costs and expenses
The
applicants also claimed EUR 1,600 for the costs and expenses incurred
before the Court and submitted a document containing details of the
claimed expenses.
The
Government contested the amount and argued that it was excessive.
The
Court awards the entire amount claimed.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
Declares by a majority the
application admissible in respect of the events
of 27 March, 22 April, 30 April and 18 December 2009;
Declares unanimously inadmissible
the part of the application concerning the events of 3
February 2009;
Holds unanimously that
there has been a violation of Article 5 § 1 of the Convention;
Holds unanimously that
there has been a violation of Article 11 of the Convention;
Holds unanimously that
there is no need to examine the complaint under Article 10 of the
Convention;
Holds unanimously
(a) that
the respondent State is to pay the applicants,
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) to
Mr Ghenadie Brega EUR 10,000 (ten thousand euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage;
(ii)
to Mr Anatolie Hristea-Stan, Mr Gheorghe Lupusoru and Mr Vasile
Costiuc, each, EUR 5,000 (five thousand euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage;
(iii) to
the applicants, the overall sum of EUR 1,600 (one thousand six
hundred euros), plus any tax that may be chargeable, 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 24 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
