CASE OF HYDE PARK AND OTHERS v. MOLDOVA (No. 4)
Remainder inadmissible;Violation of Art. 11;Violation of Art. 5-1;Non-pecuniary damage - award
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
5. 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. 6. 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. 7. 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. 8. 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. 9. On 25 July 2006 Hyde Park challenged the Municipal Council’s decision in court. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. 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. 21. 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. 22. The relevant provisions of the Assemblies Act of 21 June 1995 read as follows: (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. 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. (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. (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.” (1) The prior notification shall be examined by the local government of the town or village the latest 5 days before the date of the assembly. (2) When the prior notification is considered at an ordinary or extraordinary meeting of the Municipal Council, the discussion shall deal with the form, timetable, location and other conditions for the conduct of the assembly and the decision taken shall take account of the specific situation. (6) The local authorities can reject an application to hold an assembly only if after having consulted the police, it has obtained convincing evidence that the provisions of sections 6 and 7 will be breached with serious consequences for society. (1) A decision rejecting the application for holding an assembly shall be reasoned and presented in writing. It shall contain reasons for refusing to issue the authorisation... (1) The organiser of the assembly can challenge the refusal in the administrative courts.” 23. The relevant provisions of the Criminal Code read as follows: (1) Illegal deprivation of liberty, if it is not a kidnapping, shall be punishable with community work of 120-240 hours or imprisonment of up to 2 years. (2) The same offence committed b) against two or more persons; d) by two or more persons; shall be punishable with imprisonment of 3 to 8 years. (1) Violation of the right to freedom of assembly by way of illegal hindering of a demonstration, rally or action of protest or hindering of persons from taking part in them...: a) committed by an official; b) committed by two or more persons ; c) accompanied by acts of violence which are not dangerous to life or health, shall be punishable with a fine of four to eight thousand Moldovan lei or with community work of 180-240 hours, or with imprisonment of up to two years.” 24. The relevant provisions of the Code of Administrative Offences, in force at the material time, read: 2. The organisation and holding of an assembly without prior notification to the Municipal Council or without authorisation from the Council, or in breach of the conditions (manner, place, time) concerning the conduct of meetings indicated in the authorisation shall be punishable by a fine to be imposed on the organisers (leaders) of the assembly in an amount equal to between MDL 500 and 1,000. ... 4. Active participation in an assembly referred to in paragraph 2 of the present article shall be punishable by a fine in an amount between MDL 200 and 300. Resisting a police officer [...] in the exercise of his or her duties of ensuring public order and the fight against crime shall be punishable by a fine up to MDL 300 or detention of up to thirty days. Insulting police officers ... in the exercise of their duties ... shall be punishable by a fine of up to MDL 200 or imprisonment of up to fifteen days. Persons who ... breached the rules concerning the organisation and holding of assemblies ... resisted a police officer or behaved offensively towards him... may be detained until the case is examined by a court... ...” 25. The relevant provisions of Law No. 1226 on Pre-Trial Detention read as follows: (3) The detainees shall be subjected to body searches.... They shall not be allowed to have money, precious objects and objects forbidden in places of detention. Money shall be transferred into their personal accounts, while precious objects and other objects shall be stored.” 26. 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: 373. Money, precious objects and forbidden objects must be taken away from detainees... 375. During detention the goods mentioned in paragraph 373 above shall be transmitted to the accounting department of the detention facility for storage... 376. The forbidden objects and substances shall be taken away from detainees when they are discovered. 377. The right to take away forbidden objects is vested in the representatives of the administration, guardians and other employees of the penitentiary system. 378. The taking away of goods shall be carried out by at least two representatives of the administration, in the presence of the detainee whose goods are taken away. 379. Minutes of the removal of possessions shall be drawn up and copied three times by the participants. One copy for the detainee whose goods have been removed, another for the accounting department and the third copy for the detainee’s personal file. 380. The minutes shall contain the following information: The name of the detention facility; Date, time and place of the removal of goods; Reason for the removal of goods; First name, last name, position and grade of the persons who participated in the removal; First name and last name of the detainee whose goods are removed; An exhaustive list of the goods removed indicating denominations, quantity, brand, series, number, registration number... Signatures of all the participants, including that of the detainee... 381. The minutes shall also contain details relating to the price of the object/s, their material, and any distinguishing features. 382. If the detainee is not in agreement with the minutes, he has the right to write his objections in the minutes. 383. Money and other valuables shall be transmitted urgently (not later than one day) to the accounting department. The removed goods shall be registered in a special register for valuables. 384. Any money removed shall be transferred to the detainee’s bank account...” According to Annex No. 7 to this Government Decision, it is forbidden for detained persons to have mobile telephones.