EHRM, 07-04-2009, nr. 18491/07

At the time of the events giving rise to the application, Hyde Park (the first applicant) was registered with the Moldovan Ministry of Justice as a non-governmental organisation lobbying, inter alia, for freedom of expression and the right to peaceful assembly. In 2007 its members decided to discontinue the organisation's registration on grounds of alleged pressure and intimidation by the State. In particular, they complained of the refusal of the Ministry of Justice to register amendments to the organisation's articles of association, the repeated freezing of its bank account, the arbitrary arrest of its members, attempts to shut down its newspaper, among other things. Several of the organisation's leaders requested political asylum in western countries. It was decided to continue the organisation's activity under the same name but without registering it with the State authorities. It was also decided that the new unincorporated association would become the former organisation's successor. After removal of the organisation from the Government's list of non-governmental organisations on 2 June 2008, Hyde Park's activities continued as before on the basis of its new articles of association. The association continued editing its newspaper, its Internet page and continued staging protests and demonstrations.

The other applicants are members and supporters of Hyde Park: Oleg Brega, Anatolie Juraveli, Roman Cotelea, Mariana Galescu, Radu Vasilascu, Vitalie Dragan, Angela Lungu and Anatol Hristea-Stan. They were born in 1973, 1988, 1987, 1982, 1983, 1967, 1988 and 1953 respectively and live in Pepeni, Durlesti and Chişinău.

On 30 June 2006 the first applicant applied to the Chişinău Municipal Council for authorisation to hold a peaceful demonstration at the junction of Banulescu-Bodoni and Stefan cel Mare streets, not far from the Government building, between 1 and 31 August 2006, to protest against the refusal of the Ministry of Culture to install a monument dedicated to the poet Liviu Rebreanu, donated by the Government of Romania.

On 18 July 2006 the Chişinău Municipal Council authorised the holding of a demonstration in writing, but only on 1 August 2006. It stated that it considered that one day of protest was sufficient in order to bring Hyde Park's concerns to the Government's attention.

On 25 July 2006 Hyde Park challenged the Municipal Council's decision in court.

On 29 August 2006 the Chişinău Court of Appeal found that the Municipality's refusal had been unlawful, quashed its decision of 18 July 2006 and ordered the Municipal Council to authorise the first applicant to hold a demonstration in front of the Government building between 29 and 31 August 2006. The court ordered that its judgment should come into force immediately.

On 30 August 2006 the applicants requested authorisation from the Municipality on the basis of the judgment of 29 August 2006. However, the Municipality refused to comply with the judgment on the ground that it was not final.

On the same day at 5 p.m. the applicants started their demonstration at the place indicated in the judgment of the Court of Appeal. At 5.15 p.m. the applicants were approached by a group of police officers who asked whether they had authorisation. The applicants showed them the judgment of the Court of Appeal. From a video which was made by the police and which is part of the domestic case file a police officer can be seen attempting to convince Mr Brega to stop the demonstration. The latter refuses and argues that Hyde Park has a court judgment authorising the demonstration. At the same time Mr Brega speaks through a megaphone declaring that Moldova is a totalitarian State where there is no freedom of speech and that it will have to answer for all its illegal behaviour before the Strasbourg Court. He accuses the police and the State authorities of illegal behaviour. Suddenly, a person wearing a Special Forces uniform attacks one of the Hyde Park members from behind and violently throws him to the ground. The other participants observe the attack and are immediately surrounded by a group of police officers and taken to a police van. Nobody appears to resist and a female voice, apparently one of the participants, calls on somebody not to resist arrest. According to the applicants, two of the participants (Mr Juraveli and Mr D.) were thrown to the ground by Special Forces officers.

At the police station, the police officers took the applicants' belongings including their mobile telephones. The minutes of arrest indicated, inter alia, that the applicants' belongings had been taken for storage. The applicants were locked in different cells in groups of three or four persons. The two female applicants were put in a separate cell. According to the applicants, they were not allowed to make any telephone calls or to consult a lawyer. The cells were small, humid and dirty. They smelled of urine and faeces. They did not have windows, the electric light was always on and there were only two wooden benches inside. The applicants were held in detention for approximately forty hours during which time they were not provided with any food. They were only provided with water and occasionally taken to a toilet. Only after the intervention of several human rights NGOs and after sixteen hours of detention, were their relatives allowed to bring them food. The Government disputed the applicants' description of the conditions of detention.

On 1 September 2006 at approximately 10 a.m. the applicants were taken to court where their mobile telephones and cameras were returned to them and where they learned about the charges against them for the first time, namely holding an unauthorised demonstration (Article 174 § 1 of the Code of Administrative Offences (the ‘CAO’)), resisting arrest (Article 174 § 5 of the CAO) and insulting police officers (Article 174 § 6 of the CAO). After receiving their belongings, the applicants alleged that all the video and audio files concerning the demonstration had been deleted from their telephones by the police.

During the proceedings Mr Brega and Ms Galescu requested the court to order an expert evaluation of their mobile telephone records in order to determine whether the police had deleted files from them; however, their request was rejected and the proceedings were adjourned. The applicants were released at noon.

On 3 October 2006 the Buiucani District Court continued the administrative proceedings against the applicants and found all of them (except for the first applicant) guilty of holding and participating in an unauthorised demonstration contrary to Article 174 § 1 of the CAO. The court found that after obtaining a favourable judgment from the Court of Appeal, they should have applied to the Municipal Council for authorisation. The court fined each applicant except for Mr O. Brega (the president of Hyde Park at the time) 200 Moldovan lei (MDL). Mr O. Brega was fined MDL 500. All the applicants were acquitted of the charges concerning the insulting of police officers and resisting arrest after the court viewed a video of the arrest made by the police officers and found that there was no justification for bringing these accusations.

All the applicants appealed against this decision in so far as it concerned their participation in an unlawful assembly and argued, inter alia, that Hyde Park had applied to the Municipal Council for authorisation on 30 August 2006; however, their request had been dismissed on the ground that the judgment of the Court of Appeal of 29 August 2006 was not yet in force. They also repeated their request to have an expert evaluate their mobile telephone records.

On 26 October 2006 the Chişinău Court of Appeal upheld the applicants' appeal while finding that the applicants' demonstration was lawful by virtue of the judgment of the Court of Appeal of 29 August 2006 (see paragraph 10 above). The applicants were acquitted of the charges relating to their participation in an unlawful assembly.

In the meantime, on 18 September 2006 the applicants lodged a criminal complaint against the police officers who had arrested them. They complained that they had been abused, illegally detained, that their right to privacy of correspondence had been violated, that their right to freedom of assembly had been violated and that they had suffered inhuman and degrading treatment in addition to the refusal to execute the court decisions.

Between September 2006 and September 2007 the criminal proceedings initiated at the applicants' request were dismissed and re-opened four times. On each occasion, the Prosecutor's Office dismissed the complaint and later the courts, or the hierarchically superior prosecutor, quashed the prosecutor's decision and ordered a re-examination. The reasons for dismissal were the testimonies of police officers and police witnesses who confirmed the allegations that the applicants had insulted the police and resisted arrest. As to the allegation concerning the tampering with the applicants' mobile telephones and deleting files from them, the Prosecutor's Office accepted the testimony of a police officer who confirmed that two mobile telephones had been seized during the applicants' detention but denied the allegations that somebody had tampered with them. As to the video of the event filmed by the police representatives (see paragraph 12 above), the Prosecutor's Office argued that it had been lost and that, therefore, it could not be examined. On 27 September 2007 the Rascani District Court quashed the last decision dismissing the applicants' complaints and ordered a re-examination. After that date, the applicants did not hear any more from the Prosecutor's Office about the status of their complaint. On 10 January 2008 the applicants wrote to the Prosecutor General's Office to enquire as to the stage reached in their proceedings, but they did not receive a reply. A copy of that letter with a stamp of the Prosecutor General's Office on it was annexed to the applicants' observations. According to them, it was only from the Government's observations that they learned that their complaint had been dismissed again on 12 November 2007. The Government disputed the applicants' submissions concerning the letter of 10 January 2008 which the applicants stated they had sent to the Prosecutor General's Office. They did not dispute, however, the authenticity of the Prosecutor General's stamp on the copy of that letter.

On 1 November 2006 the Supreme Court of Justice examined the appeal on points of law lodged by the Municipal Council against the judgment of the Court of Appeal of 29 August 2006. It quashed that judgment and dismissed the applicants' action, finding that the Municipal Council's decision of 18 July 2006 was lawful. The Supreme Court also ruled that the ruling of the Court of Appeal concerning the immediate enforcement of its judgment had been unlawful.

The relevant provisions of the Assemblies Act of 21 June 1995 read as follows:

The relevant provisions of the Criminal Code read as follows:

The relevant provisions of the Code of Administrative Offences, in force at the material time, read:

The relevant provisions of Law No. 1226 on Pre-Trial Detention read as follows:

More detailed rules concerning detainees' belongings and their storage by the authorities in charge of detention facilities are contained in the Government's Decision no. 583, of 26 May 2006:

According to Annex No. 7 to this Government Decision, it is forbidden for detained persons to have mobile telephones.

The applicants submitted that the interference with their right to freedom of assembly was not prescribed by law because the reason relied upon by the Municipality was not compatible with section 12(6) of the Assemblies Act. Moreover, the interference did not pursue a legitimate aim and was not necessary in a democratic society.

The Government accepted that there had been an interference with the applicants' right guaranteed by Article 11 of the Convention. However, that interference was prescribed by law, namely the Assemblies Act, pursued a legitimate aim and was necessary in a democratic society.

It is common ground between the parties, and the Court agrees, that the decision to reject Hyde Park's application to hold a demonstration between 1 and 31 August 2006 amounted to ‘interference by [a] public authority’ with the applicants' right to freedom of assembly under the first paragraph of Article 11. Such interference will entail a violation of Article 11 unless it is ‘prescribed by law’, has an aim or aims that are legitimate under paragraph 2 of the Article and is ‘necessary in a democratic society’ to achieve such aim or aims.

In so far as the lawfulness of the interference is concerned, the Court notes that under section 14 of the Assemblies Act the Chişinău Municipality was obliged to give reasons in writing for rejecting Hyde Park's application to hold an assembly, which it did in its decision of 18 July 2006 (see paragraph 8 above). According to section 12 (6) of the Assemblies Act, an application could be rejected only if the Municipality was in possession of evidence that the provisions of sections 6 and 7 would be breached with serious consequences for society. The Municipality's decision appears not to have been based on any of the reasons provided for in sections 6 and 7 of the Assemblies Act. This in itself might be a sufficient basis for the conclusion that the impugned measures were not ‘prescribed by law’. However, in the present case, the Court considers that the issue of compliance with the law is indissociable from the question as to whether the interference was ‘necessary in a democratic society’. It will therefore examine this issue below (see Christian Democratic People's Party v. Moldova, no. 28793/02, § 53, ECHR 2006-II).

The parties also disagreed as to whether the interference served a legitimate aim. The Court, for the reasons set out below, does not consider it necessary to decide this point either (see Christian Democratic People's Party v. Moldova, cited above, §54).

In so far as the proportionality of the interference is concerned, the Court recalls that it has stated many times in its judgments that not only is democracy a fundamental feature of the European public order but the Convention was designed to promote and maintain the ideals and values of a democratic society. Democracy, the Court has stressed, is the only political model contemplated in the Convention and the only one compatible with it. By virtue of the wording of the second paragraph of Article 11, and likewise of Articles 8, 9 and 10 of the Convention, the only necessity capable of justifying an interference with any of the rights enshrined in those Articles is one that may claim to spring from a ‘democratic society’ (see Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, §§ 86-89, ECHR 2003-II, and Christian Democratic People's Party v. Moldova, cited above).

Referring to the hallmarks of a ‘democratic society’, the Court has attached particular importance to pluralism, tolerance and broadmindedness. In that context, it has held that although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position (see Young, James and Webster v. the United Kingdom, 13 August 1981, § 63, Series A no. 44, and Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 112, ECHR 1999-III).

When carrying out its scrutiny under Article 11 the Court's task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they have delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, mutatis mutandis, Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298).

Turning to the circumstances of the present case, the Court observes that the Municipality rejected the application to hold the protest demonstration planned for 1–31 August 2006 on the ground that, in its opinion, one day of protest was sufficient. The Court noted above that such a reason appears to be inconsistent with the requirements of the Assemblies Act which, in its sections 6 and 7, sets out the grounds on which an application to hold an assembly can be rejected by a Municipality. For the Court, the Municipality's reasons cannot be considered relevant and sufficient within the meaning of Article 11 of the Convention. It observes that there was never any suggestion that the organisers intended to disrupt public order or to seek a confrontation with the authorities. Therefore, the Court can only conclude that the Municipality's refusal to authorise the demonstration did not respond to a pressing social need.

Bearing in mind the above circumstances, the Court concludes that the interference did not correspond to a pressing social need and thus that it was not necessary in a democratic society. Accordingly, there has been a violation of Article 11 of the Convention.

Accordingly, there has been a violation of Article 11 of the Convention.

The applicants also alleged a violation of Article 6 § 1 of the Convention, arguing that the proceedings that culminated in the judgment of the Supreme Court of Justice of 1 November 2006 were unfair because the Supreme Court failed to give a reasoned judgment. As this complaint does not raise a separate issue from that examined under Article 11 above, the Court does not consider it necessary to examine it separately.

The applicants agreed that their detention fell under paragraph (c) of Article 5 § 1 of the Convention. However, they argued that the detention was unlawful and arbitrary.

The Government argued that the actions of the police officers were lawful under domestic law and pointed to Article 249 of the CAO, which provided for the possibility of detaining a person for holding an unauthorised demonstration, offending police officers and resisting arrest. They insisted that there had been no breach of Article 5 § 1 of the Convention.

The Court reiterates that the expressions ‘lawful’ and ‘in accordance with a procedure prescribed by law’ in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. However, the ‘lawfulness’ of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion (see Anguelova v. Bulgaria, no. 38361/97, § 154, ECHR 2002-IV, and Fedotov v. Russia, cited above, § 74).

The Court agrees with the parties that the applicants' detention fell within the ambit of Article 5 § 1 (c) of the Convention, as it was imposed for the purpose of bringing them before the competent legal authority on suspicion of having committed several offences.

There is no dispute as to the fact that the police, when arresting the applicants and taking them to the police station, followed the procedure provided for by Article 249 of the CAO (see paragraph 24 above).

The Court notes that the applicants were charged, inter alia, with resisting arrest and insulting police officers. However, the domestic courts, having viewed the video of the applicants' arrest found those charges unsubstantiated and dismissed them (see paragraphs 16 and 18 above). In such circumstances, and given the absence of any ‘reasonable suspicion’ within the meaning of Article 5 § 1(c), the Court considers that the applicants' detention on false charges that they had resisted arrest and insulted police officers cannot be considered ‘lawful’ under Article 5 § 1 of the Convention.

As to the last ground of the applicants' detention, that is their organising and holding an unauthorised demonstration, the Court notes that they had a valid court judgment authorising the assembly. Moreover, that judgment came into force immediately. The fact that the Municipality refused to comply with it did not dispense the police from the obligation to take it into consideration. These findings are consistent with the findings of the Court of Appeal which later finally dismissed the charges against the applicants under Articles 174 § 1 (see paragraph 18 above). In such circumstances, and bearing in mind the findings in paragraph 54 above, the Court finds that the applicants' detention on this ground too cannot be considered ‘lawful’ under Article 5 § 1 of the Convention.

There has therefore been a breach of that provision.

The applicants also complained that they had not been informed promptly about the reasons for their arrest and about the charges against them and that they had not been brought promptly before a judge.

The Court considers that it does not have to examine these complaints separately, having found that the detention as a whole was contrary to Article 5 § 1 of the Convention (see, Stepuleac v. Moldova, no. 8207/06, § 83, 6 November 2007).

Article 41 of the Convention provides: