CASE OF CHRISTIAN DEMOCRATIC PEOPLE'S PARTY v. MOLDOVA
Preliminary objection rejected;Violation of Art. 11;Not necessary to examine under Art. 10;Costs and expenses partial award - Convention proceedings
Ján Šikuta;Javier Borrego Borrego;Josep Casadevall;Matti Pellonpää;Nicolas Bratza;Rait Maruste;Stanislav Pavlovschi
8. The applicant party, the Christian Democratic People's Party (“the CDPP”), is a parliamentary political party in the Republic of Moldova which was in opposition at the time of the events. 9. Towards the end of 2001, the Moldovan government made public its intention to make the study of the Russian language compulsory in schools for children aged seven and over. 10. This initiative prompted vehement criticism from the opposition and generated a heated public debate. 11. On 26 December 2001 the parliamentary group of the CDPP informed Chişinău Municipal Council of its intention to hold a meeting with its supporters on 9 January 2002, in Great National Assembly Square, in front of the government buildings. It stated that the meeting would relate to the introduction of the compulsory study of Russian in schools. It relied on section 22 of the Status of Members of Parliament Act (see paragraph 35 below) which, according to the CDPP, did not require members of parliament to obtain prior authorisation for meetings with their supporters. 12. By a decision of 3 January 2002, the Municipal Council classified the gathering to be held on 9 January 2002 as a “demonstration” within the meaning of sections 4, 8, 12 and 13 of the Assemblies Act (see paragraph 36 below) and authorised the parliamentary group of the CDPP to hold it in National Opera Square. It did not give any reasons for the change of location. 13. Later, on 23 January 2002, the Municipal Council addressed a letter to the Ministry of Justice, informing it that there was a discrepancy between the provisions of the Status of Members of Parliament Act and those of the Assemblies Act and that it did not know which to apply. It stated, inter alia, that a number of reputable lawyers supported the idea that the CDPP members of parliament had the right to hold meetings with their supporters in Great National Assembly Square without obtaining prior authorisation, in accordance with the provisions of sections 22 and 23 of the Status of Members of Parliament Act. It cited in that respect the opinion of an ombudsman who considered that, since section 23 of the Status of Members of Parliament Act proclaimed the right of MPs to raise demands on the spot for action to remedy a breach of the law, the CDPP members of parliament were entitled to raise their demands for the cessation of the alleged breaches concerning the introduction of compulsory Russian lessons in front of the government building, as it also housed the Ministry of Education. Accordingly, the Municipal Council requested the Ministry of Justice to ask Parliament for an official interpretation of the legislation in question. 14. On 26 January 2002 the Municipal Council issued a decision which stated, inter alia: “Having regard to the fact that the provisions of the domestic legislation are contradictory in respect of the demonstrations organised by the CDPP and that the opinions of legal experts are contradictory, and bearing in mind the considerable social impact of a possible decision regarding the matter and the consequences it might entail, the Municipal Council has formally requested the Ministry of Justice to ask Parliament for an official and urgent interpretation of the relevant legislation. ... The Municipal Council's decision of 3 January 2002 is hereby suspended until Parliament has given its official interpretation.” 15. In the meantime, on 9 January 2002, the parliamentary group of the CDPP held a gathering in Great National Assembly Square, in front of government headquarters. It also held gatherings on 11, 13, 15, 16 and 17 January 2002. The CDPP informed the Municipal Council in advance of each gathering; however, it did not seek authorisation in accordance with the Assemblies Act. 16. On 14 January 2002 the Ministry of Justice issued an official warning to the CDPP in accordance with section 27 of the Parties and other Socio-Political Organisations Act (see paragraph 37 below). It stated, inter alia, that the CDPP had breached the provisions of section 6 of the Assemblies Act by organising demonstrations in Great National Assembly Square on 9, 10, 11 and 13 January 2002, notwithstanding the authorisation issued by the Municipal Council, which only gave permission for a demonstration on 9 January 2002 in National Opera Square. It called for an immediate halt to the gatherings, which it considered to be illegal and unconstitutional and which it claimed were not meetings with voters within the meaning of the Status of Members of Parliament Act, but demonstrations falling under the Assemblies Act. It asked the CDPP for a written explanation within three days and warned that, if it failed to comply with the warning, the Ministry would impose a temporary ban (suspendarea activităţii) on the party's activities in accordance with section 29 of the Parties and other Socio-Political Organisations Act (see paragraph 37 below). 17. On 17 January 2002 the President of the CDPP wrote a letter to the Ministry of Justice in which he stated that the gatherings had not been organised by the CDPP but by members of its parliamentary group, and that it was therefore the members concerned who were liable, and not the party. He also relied on section 22 of the Status of Members of Parliament Act, arguing that it was a very specific Act, applicable to meetings between members of parliament and voters, while the Assemblies Act was general in nature. He finally submitted that the threatened ban on the party's activities would amount to a political measure taken by the Communist Party in order to repress the opposition. 18. On 18 January 2002 the Ministry of Justice issued a decision imposing a one-month ban on the CDPP's activities, in accordance with section 29 of the Parties and other Socio-Political Organisations Act. 19. The measure was imposed on the basis of the organisation by the CDPP of unauthorised demonstrations on 9, 10, 11, 13, 15, 16 and 17 January 2002. 20. The Ministry of Justice dismissed the CDPP leader's argument that the party could not be held liable. It stated, inter alia, that the gatherings organised by the CDPP on the above dates had in fact been demonstrations and marches and therefore fell within the scope of the Assemblies Act rather than the Status of Members of Parliament Act as the CDPP had claimed. 21. According to the decision, the CDPP had breached the provisions of sections 5, 6, 7, 8, 9 and 11 of the Assemblies Act by not obtaining prior authorisation from the Municipal Council to stage demonstrations and by blocking the public highway. 22. The participation of minors in the CDPP demonstrations had been in breach of Article 15 of the International Convention on the Rights of the Child (see paragraph 38 below), section 13(3) of the Protection of Children Act (see paragraph 39 below) and section 56(g) of the Education Act (see paragraph 40 below). 23. The CDPP's actions also disclosed a violation of sections 27 and 29 of the Parties and other Socio-Political Organisations Act (see paragraph 37 below), section 15(1) and (2) of the Status of Members of Parliament Act (see paragraph 35 below) and Article 32 of the Constitution (see paragraph 34 below). The use of such slogans as “I'd rather be dead than a communist” (Mai bine mort decât comunist) could be interpreted as a call to public violence and an act undermining the legal and constitutional order. 24. On 24 January 2002 the CDPP challenged the decision of the Ministry of Justice arguing, inter alia, that the gatherings had been meetings with voters within the meaning of the Status of Members of Parliament Act, and not assemblies falling within the scope of the Assemblies Act. 25. On 8 February 2002 the Ministry of Justice issued a decision lifting the temporary ban imposed on the CDPP's activities. It stressed that the CDPP had breached all the laws mentioned in the decision of 18 January 2002 and that the temporary ban had been necessary and justified. However, following an inquiry by the Secretary General of the Council of Europe under Article 52 of the Convention, and having regard to the forthcoming local elections, the CDPP was authorised to resume its activities. The decision of 8 February 2002 did not, however, set aside the decision of 18 January 2002. 26. On 7 March 2002 the Court of Appeal found in favour of the Ministry of Justice and ruled that the decision of 18 January 2002 had been lawful. It dismissed the CDPP's argument that the party could not be held liable for the actions of its members, namely its parliamentary group. It found that the gatherings organised by the CDPP had in fact been demonstrations, meetings and marches which fell under the provisions of the Assemblies Act, and not meetings with voters. Even assuming that the gatherings had been intended as meetings with voters, they had gradually taken on the nature of demonstrations and, accordingly, the CDPP needed authorisation in order to organise them. It also stated that, as a result of the demonstrations, the public transport company had suffered losses of 12,133 Moldovan lei (MDL) (the equivalent of 1,050 euros (EUR) at the time). The participation of minors in the demonstrations had been in breach of the International Convention on the Rights of the Child, the Protection of Children Act and the Education Act. 27. The CDPP lodged an appeal against this decision with the Supreme Court of Justice, relying, inter alia, on Articles 10 and 11 of the Convention. 28. On 17 May 2002 a panel of the Supreme Court of Justice delivered its judgment, in which it dismissed the appeal lodged by the CDPP. It endorsed the arguments of the Court of Appeal and found, inter alia, that since the demonstrations organised by the CDPP had been illegal, the sanction imposed on it had not been disproportionate. It also stated that in any event the decision of the Ministry of Justice had not had any negative effects on the CDPP since it had not been enforced, the CDPP's accounts had not been frozen and the party could continue its activities unhindered. 29. The Ministry of Justice did not reply to the Municipal Council's request of 23 January 2002 for interpretation of the law and did not address any request to Parliament. However, on 21 February 2002 the government lodged an application with the Supreme Court of Justice asking it, inter alia, to declare the demonstrations organised by the CDPP illegal and to order their cessation. 30. On 25 February 2002 the Supreme Court of Justice ruled in favour of the government and declared the gatherings illegal. It stated, inter alia: “Even if one could accept that the CDPP had the initial intention of holding meetings with its supporters, those meetings later took on the character of demonstrations, marches, processions and picketing, which fall under the provisions of the Assemblies Act. In these circumstances, the leaders of the CDPP were required to comply with the provisions of the Assemblies Act ...” 31. The CDPP appealed. 32. On 15 March 2002 the Supreme Court of Justice dismissed the appeal and the judgment of 25 February 2002 became final. 33. In the course of the present proceedings before the Court, the Government submitted a video with images of gatherings held by the CDPP deputies on 15, 16, 17 and 18 January 2002. The gatherings were held in Great National Assembly Square, in a pedestrian area, in front of the government buildings. The participants appeared to number several hundred and included people of different ages varying from schoolchildren to pensioners. According to the time displayed on the images, the gatherings commenced at around 1 p.m. and lasted for about two hours. Different personalities made speeches critical of the ruling Communist Party, the government and its policy. It appears from the video that traffic was not disrupted as a result of the gatherings held on those dates, and no signs of violence can be seen. “The Layabout's Anthem” (Imnul Golanilor – a song that originated in the 1990 Bucharest student demonstrations) was played frequently. The chorus of the song had the following wording: “I'd rather be a slacker than a traitor (Mai bine haimana, decât trădător) I'd rather be a hooligan than a dictator (Mai bine huligan, decât dictator) I'd rather be a layabout than an activist (Mai bine golan, decât activist) I'd rather be dead than a communist (Mai bine mort, decât comunist).” 34. Article 32 of the Constitution of the Republic of Moldova reads as follows: “3. Denial and defamation of the State and of the people, incitement to war of aggression, incitement to hatred on ethnic, racial or religious grounds, incitement to discrimination, territorial separatism or public violence, as well as other acts undermining the constitutional order shall be forbidden and shall be punishable under the law.” 35. The relevant provisions of the Status of Members of Parliament Act of 7 April 1994 provide: “(1) Members of parliament shall be obliged strictly to observe the Constitution, the laws and the rules of morality and ethics. (2) Members of parliament shall have a duty to be dependable and to contribute by their own example to the consolidation of State discipline, the fulfilment of civil obligations, the protection of human rights and the observance of the law. (3) Alleged breaches of the rules of ethics by members of parliament shall be examined by the Parliamentary Commission on Legal Affairs, Appointments and Immunity.” “Local authorities shall provide members of parliament with all necessary assistance for the organisation of their work with voters. They shall place premises at their disposal for meetings with voters.” On 26 July 2002 section 22(3) was amended as follows: “Local authorities shall provide members of parliament with the necessary assistance for the organisation of their work with voters. For this purpose, they [the local authorities] shall ensure access to buildings or other public places, provide equipment and any necessary information and inform voters in good time about the place and the time of meetings with members of parliament.” On 26 July 2002 a new section 22(1) was introduced: “Members of parliament shall have the right to organise demonstrations, meetings, processions and other peaceful gatherings in accordance with the Assemblies Act.” “(1) Members of parliament, in their capacity as representatives of the supreme legislative power, shall have the right to raise demands on the spot for action to remedy a breach of the law ...” 36. The relevant provisions of the Assemblies Act of 21 June 1995 read as follows: “Assemblies may be conducted only after the organisers have notified the local council.” “(1) Assemblies shall be conducted peacefully, without any sort of weapons, and shall ensure the protection of participants and the environment, without impeding the normal use of public highways, road traffic and the operation of economic undertakings and without degenerating into acts of violence capable of endangering the public order and the physical integrity and life of persons or their property.” On 26 July 2002 the following provision was added to the section: “(2) Teachers or other school staff members shall not involve students in unauthorised assemblies.” “Assemblies shall be suspended in the following circumstances: (a) denial and defamation of the State and of the people; (b) incitement to war of 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.” “(1) Assemblies may be conducted in squares, streets, parks and other public places in cities, towns and villages, and also in public buildings. (2) It shall be forbidden to conduct an assembly in the buildings of the public authorities, the local authorities, prosecutors' offices, the courts or companies with armed security. (3) It shall be forbidden to conduct assemblies: (a) within fifty metres of the parliament building, the residence of the President of Moldova, the seat of the government, the Constitutional Court and the Supreme Court of Justice; (b) within twenty-five metres of the buildings of the central administrative authority, the local public authorities, courts, prosecutors' offices, police stations, prisons and social rehabilitation institutions, military installations, railway stations, airports, hospitals, companies which use dangerous equipment and machines, and diplomatic institutions. (4) Free access to the premises of the institutions listed in subsection (3) shall be guaranteed. (5) The local public authorities may, if the organisers agree, establish places or buildings for permanent assemblies.” “The date and time of the assembly shall be agreed by the organiser and the local council of the city, town or village.” “(1) Not later than fifteen days prior to the date of the assembly, the organiser shall submit a notification to the Municipal Council, a specimen of which is set out in the annex which forms an integral part of this Act. (2) The prior notification shall indicate: (a) the name of the organiser of the assembly and the aim of the assembly; (b) the date, starting time and finishing time of the assembly; (c) the location of the assembly and the access and return routes; (d) the manner in which the assembly is to take place; (e) the approximate number of participants; (f) the persons who are to ensure and answer for the sound conduct of the assembly; (g) the services the organiser of the assembly asks the Municipal Council to provide. (3) If the situation so requires, the Municipal Council may alter certain aspects of the prior notification with the agreement of the organiser of the assembly.” “(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.” 37. The relevant parts of the Parties and other Socio-Political Organisations Act of 17 September 1991 provide: “... In the event that breaches of the statute or of the law are discovered in the activities of a party or a socio-political organisation, the Ministry of Justice shall warn its leaders in writing, requesting that the breaches be remedied within a fixed time-limit.” “The Ministry of Justice shall impose a temporary ban on the activities of a party or socio-political organisation which breaches the provisions of the Constitution or those of the present Act, or does not comply with a warning.” On 21 November 2003, this paragraph was amended as follows: “The Ministry of Justice shall impose a temporary ban on the activities of a party or socio-political organisation which breaches the provisions of the Constitution. In this case, the Ministry of Justice shall inform the party's leadership in writing of the breaches of the law which have taken place and will set a time-limit for action to remedy them. During electoral campaigns the activities of parties and other socio-political organisations may be suspended only by the Supreme Court of Justice. During the temporary ban, it shall be forbidden for the party to use the mass media, to disseminate propaganda and publicity, to carry out bank transactions or other operations in respect of its assets and to participate in elections. Once all the breaches of the law have been remedied, the party shall inform the Ministry of Justice, which shall lift the temporary ban within five days. The activities of the party or other socio-political organisation may be suspended for a period up to six months. If the breaches of the law are not remedied its activities may be suspended for a period of one year.” 38. The relevant provisions of the International Convention on the Rights of the Child of 20 November 1989 read as follows: “1. States Parties recognise the rights of the child to freedom of association and to freedom of peaceful assembly. 2. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.” 39. The relevant parts of the Protection of Children Act of 15 December 1994 provide: “(1) Children shall have the right to membership of non-governmental organisations in accordance with the law. (2) The State must provide children's non-governmental organisations with financial support, place premises at their disposal and provide them with fiscal incentives. (3) The involvement of children in politics and their membership of political parties shall be forbidden.” 40. The relevant parts of the Education Act of 21 July 1995 state: “It shall be the duty of teachers: ... (g) not to involve children in street actions (meetings, demonstrations, picketing, etc.).” 41. The relevant part of the Code of Administrative Offences of 29 March 1985 reads as follows: “2. The organisation and holding of an assembly without prior notification to the Municipal Council or without authorisation from the Council, or in breach of the conditions (manner, place, time) concerning the conduct of meetings indicated in the authorisation shall be punishable by a fine to be imposed on the organisers (leaders) of the assembly in an amount equal to between ten and twenty-five times the minimum monthly wage. ... ... 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 180 and MDL 450.” On 26 July 2002 the following provision was added to the Code: “7. The involvement of children in unauthorised assemblies shall be punishable by a fine of between MDL 180 and MDL 360.”