CASE OF ZILIBERBERG v. MOLDOVA
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
7. The applicant was born in 1980 and lives in Chişinău, Moldova. He was a student at the time of the events and earned a stipend of 50 Moldovan Lei (MDL). 8. On 18 April 2000, between 9.30 a.m. and 12.30 p.m., the applicant attended a demonstration against the decision of the Municipal Council to abolish urban transport privileges for students. The demonstration was not authorised in accordance with the law and it appears from the statements of the parties that its organisers did not even apply for authorisation. The demonstration took place on the Great National Assembly Square in Chişinău. In the beginning it was peaceful, but later some of the demonstrators started to throw eggs and stones at the Municipality building and the police intervened. 9. Around 12.30 p.m. the applicant was arrested by the police on grounds of being an active participant in an unauthorised demonstration in breach of Article 174/1 § 4 of the Code of Administrative Offences (hereinafter referred to as the “CAO”). He was brought to the precinct police station an hour later. Between 1.30 p.m. and 7.00 p.m., he was detained in the police station and interrogated by several criminal investigators. 10. In his written statement given at the police station, the applicant mentioned, inter alia, that he had been arrested by the police when he and a journalist from the National Radio approached a group of policemen beating up a student. Since he had written on his forehead the word “STUDENT”, the police arrested him. He stated that he was an active participant but that he was not involved in violence. 11. On an unspecified date, the district police completed the administrative case file in connection with the offence committed by the applicant, mentioning inter alia that he had actively participated in an unauthorised meeting that had taken place in front of the building of the Municipal Council. The case was then referred to the competent district court. 12. Following an oral hearing on 19 April 2000, the Centru District Court imposed on the applicant an administrative fine of MDL 36 (the equivalent of 3.17 euros (EUR) at the time) provided for in Article 174/1 § 4 of the CAO. In its order, the court stated, inter alia, that the applicant had actively participated in a demonstration of students, which had been carried out without authorisation from the Municipal Council, and that he had admitted having participated in the demonstration. 13. On 28 April 2000 the applicant lodged an appeal against the above order. He argued that the fine had been unlawfully imposed on him and that the sanction was contrary to the freedom of assembly and to the right to strike guaranteed by Articles 40 and 45 of the Constitution. 14. On 4 May 2000 at 10 a.m. the Chişinău Regional Court heard the applicant’s appeal in his absence and dismissed it. 15. According to the Government the summons for the hearing was sent on 2 May 2000 by regular post and should have arrived at its destination on 3 May 2000. 16. According to the applicant, it was sent on 3 May 2000 and was received by him on 4 May 2000 after 10 a.m. 17. The postmark on the envelope, applied by the outgoing post office (namely, by the first post office through which the envelope was routed) indicates the date of 3 May 2000. The postmark applied by the incoming post office is not entirely legible. 18. On 5 May 2000, the applicant appeared before the Registry of the Chişinău Regional Court to inquire about his case. He was issued with a copy of the judgment of the Chişinău Regional Court of 4 May 2000 dismissing his appeal and upholding the order of the District Court of 19 April 2000. 19. On 10 May 2000 the applicant filed a request for annulment (contestaţie în anulare) with the Chişinău Regional Court against its decision of 4 May 2000, arguing that he had not been properly summonsed and consequently did not have a fair trial. The court refused to register the request on the ground that the CAO did not provide for such a remedy. On 18 May and 22 June 2000 respectively, the court rejected the repeated requests lodged by the applicant and his lawyer. 20. On 18 May 2000, the applicant accompanied by a lawyer of the Helsinki Committee of Human Rights and by an advocate made another attempt to file a request for annulment with the Registry of the Chişinău Regional Court but the Registry refused to register it. 21. On 12 June 2000, following the bailiff’s request, the applicant paid the fine provided for in the decision of 19 April 2000. 22. The relevant provisions of the Code of Administrative Offences in force at the material time read: The Code of Administrative Offences aims at the protection of the personality, the rights and the legal interests of the physical and moral person, property, the State and public order, as well as at finding, preventing and eliminating the consequences of administrative offences and at educating citizens in the spirit of respect for the law. ... The sanction for the attempt to commit an administrative offence is established in accordance with the article which provides for the responsibility for that offence. Only persons who were 16 years old at the moment of the commission of an administrative offence can be held responsible. The person who has committed an administrative offence while acting in legitimate defence shall not be responsible... The administrative sanction is a measure of responsibility and is applied in order to educate the person who committed an administrative offence, as well as to deter any future similar acts by the perpetrator himself or by others. In case of evasion of payment of a fine imposed for an administrative offence in bad faith, the court may replace the fine with imprisonment of ten days for every MDL 18, the maximum term being thirty days. (În caz de sustragere cu rea-voinţă de la achitarea amenzii aplicate pentru contravenţia administrativă savârşită, instanţa judecatorească poate înlocui această sancţiune cu arest administrativ, calculându-se zece zile de arest pentru un salariu minim, termenul fiind cel mult treizeci de zile.) The conversion of an administrative fine into imprisonment is ordered by a court following a request lodged by the bailiff in accordance with Article 26 of the CAO. According to the Government, the courts can convert administrative fines into imprisonment when the following circumstances are present: - when a person who knows about a fine imposed on him/her refuses to appear before a bailiff after multiple summonses; - when the offender does not have any revenue or goods that could be sold; - when the offender is unemployed and accordingly does not have a salary from which the fine could be deducted; - when the offender has failed to comply with the time limit set by a court for the payment of an administrative fine. A judgment by which an administrative fine is converted to imprisonment can be challenged before the hierarchically superior court. A person to whom such a measure is applied can always bring it to an end, by paying the administrative fine. The conversion cannot be made in respect of pregnant women, women who have children under twelve years of age, persons aged under eighteen and invalids of the first and second degree. As to the latter provision the parties submitted copies of seven recent judgments in which administrative fines have been converted into imprisonment, in some of which the conversion had been ordered in the absence of the offender and not in a public hearing. In one of them the conversion was made due to the offender’s failure to pay an administrative fine in time. At the same time the Government submitted copies of letters addressed to the Government Agent by presidents of thirteen courts in which it was stated that in the last two years their courts had converted administrative fines into imprisonment in twenty six cases. The circumstances that mitigate the administrative responsibility are: 1) repentance of the offender; 2) prevention by the offender of the negative effects of the offence and voluntary compensation for the damage caused; 3) committing the offence under influence of strong emotions or amidst difficult personal or family circumstances; 4) committing the offence as a minor; 5) committing the offence as a pregnant woman or as a woman who has a child aged under one year. The circumstances that aggravate the administrative responsibility are: 1) the continuation of illicit behaviour in spite of the demand to refrain from it, made by an authorised person; 2) the commission of a similar administrative offence for the second time within one year or the commission of an offence by a person who had earlier committed a criminal offence; 3) involving a minor in an activity contrary to CAO; 4) the commission of an offence by a group of people; 5) the commission of an offence during natural calamities...; 6) the commission of an offence while under influence of alcohol.... (2) The organisation and holding of an assembly without a prior declaration deposited with the Municipal Council or not authorised by it, and in breach of the conditions (manner, place, time) concerning the conduct of a meeting as 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 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 36 and 90. The hearing regarding an administrative offence shall be conducted in the presence of the suspect. If the suspect is absent, the hearing can take place only when it is proved that he or she was informed in due time about the place and the time of the hearing and if he or she did not submit any request for adjournment. A decision of the first instance court regarding an administrative offence may be challenged before the hierarchically superior court, by an application lodged by the interested person or by the prosecutor. When the parties have been informed in due time about the date of the hearing but do not appear, the appeal may be heard in their absence.... In examining a case regarding an administrative offence, the appeal instance may render one of the following decisions: 1) to leave the challenged decision unchanged and to reject the appeal application; 2) to quash the challenged decision and to order a re-examination by the first instance court; 3) to quash the challenged decision and to send the file to the investigation organs; 4) to quash the challenged decision and to stop the proceedings; 5) to change the administrative sanction and to mitigate the sanction imposed. The appeal instance may quash the challenged decision for the following reasons: when the first instance court committed procedural mistakes or when it applied the wrong law. A decision which is correct on its merits cannot be quashed for procedural reasons, except in the following circumstances: 1) the case was examined by a set of judges which was not composed in accordance with the law; 2) the decision was not signed by the judge who examined the case or it was signed by a judge who did not participate at the trial of the case; 3) the decision was not pronounced by the judge who examined the case; 4) there were no minutes of the hearing, contrary to the law; 5) the case was examined without an interpreter, contrary to the law. After examining the case, the appeal instance pronounces its decision. The decision does not have to contain any reasoning. If an offender does not pay the fine within the time provided for in Article 292 of the present Code, the amount of the fine shall be compulsorily deducted from his or her salary, pension, stipend or other income in accordance with the rules set in the Code of Civil Procedure. If the offender does not have an employment or if the deduction of the fine from the salary, pension, stipend or other income is not possible, the amount of the fine shall be recovered from the forced sale of his or her personal belongings or of his or her part of a co-ownership.... 23. The relevant provisions of the Code of Criminal Procedure in force at the material time read: The accused is called before the investigator by means of a summons. The summons is handed to the accused and the certificate confirming the date of the receipt is returned to the investigator. The summoning can also be done by telephone or by telegram. 24. The relevant provisions of the Code of Civil Procedure in force at the material time read: The court informs the parties to the proceedings about the date and the place of the hearing by means of a summons.... The summons is to be handed to the parties in due time, so that they have enough time to prepare for the hearing in front of the court. In any event, the summons should be handed to the defendant at least three days ahead of the hearing. 25. In a book entitled “The Procedure in Administrative Offence cases” by Sergiu Furdui (judge at the Supreme Court of Justice in Moldova), (Chişinău 2000), the author states the following: “The Code of Administrative Offences provides for a number of procedural measures such as: detention, body search, search of property, administrative arrest... The CAO provides for few procedural guarantees as it does not guarantee legal aid, presumption of innocence, etc. The CAO cases are heard by criminal sections of the courts.... Only the convicted person may pay the administrative fine... It is illegal for the fine be paid by somebody else”.