CASE OF HYDE PARK AND OTHERS v. MOLDOVA (Nos. 5 and 6)
Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 11;Pecuniary and non-pecuniary damage - awards
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
6. At the time of the events in question, Hyde Park was registered with the Moldovan Ministry of Justice as a non-governmental organisation lobbying, inter alia, for freedom of expression and the right to free assembly. In 2007 its members decided to discontinue registration on grounds of alleged pressure and intimidation from 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, arbitrary arrest of its members, attempts to shut down its newspaper and other such interferences. Several of the organisation's leaders requested political asylum in western countries and it was decided to continue the activity under the same name but without being registered with the State authorities. It was also decided that the new unincorporated association would become the former organisation's successor. After the striking of the organisation out of the Government's list of non-governmental organisations, on 2 June 2008, Hyde Park's activity continued on the basis of new articles of association and all the activities were carried on. The association continued editing its newspaper and its internet page and continued staging protests and demonstrations. 7. On 23 July 2007 Hyde Park applied to the Municipal Council of Chişinău for authorisation to stage a protest on 30 August 2007 in front of the Ministry of Internal Affairs and the Prosecutor General's Office against alleged acts of harassment of Hyde Park by those bodies. 8. On 20 August 2007 the Municipal Council authorised the protest, to be staged on 30 August 2007 in front of the building of the Ministry of Internal Affairs between 7.30 a.m. and 8.15 a.m. and in front of the Prosecutor General's Office between 8.15 a.m. and 9 a.m. at a distance of at least fifty metres from the buildings. 9. On 30 August 2007, at 7.30 a.m., the applicants started their protest in front of the Ministry of Internal Affairs but were immediately approached by a police officer who ordered them to stop the protest because the Municipality's authorisation had been challenged by the Prosecutor General's Office in court on 29 August 2007. The police officer argued that according to the Law on the Prosecutor's Office, the prosecutor's appeal against an administrative act suspended the latter's action until after a court examined it. The applicants refused to comply and argued that the authorisation was valid and that their protest was peaceful. They relied on the provisions of the Constitution of Moldova and on the Convention. Shortly thereafter a police van arrived and Mr Ghenadie Brega, Mr Oleg Brega, Mr Hristea-Stan and Mr Juraveli were arrested and taken to a police station where they were questioned. At approximately 9.30 a.m. they were released without explanation. They could not continue their protest because the time indicated in the authorisation had lapsed. 10. The same day a criminal complaint was lodged against the police officers who carried out the arrests; however, the complaint was dismissed by the head of the police station of the Centru District on 19 September 2007 on the ground that the authorisation contained numerous flaws such as a failure to indicate the exact place of the protest and the number of participants. 11. It appears that the Prosecutor Office's appeal against the Municipality's authorisation of 20 August 2007 has never been examined by the courts. 12. On 30 August 2007 Mr Juraveli, the vice-president of Hyde Park, applied to the Municipality for an authorisation to stage a protest in front of the Ministry of Internal Affairs and the Prosecutor's Office between 4 and 11 September 2007 against the allegedly abusive suppression of its peaceful protest of the same date. In the application he indicated that ten persons were to participate in the demonstration and gave his name and those of Mr Oleg Brega and Mr Hristea-Stan as those responsible for the conduct of the demonstration. 13. The Municipality did not adopt a decision in respect of the application before the first date of the planned demonstration, on 4 September 2007. Therefore, at 9 a.m. that day the applicants started their protest in front of the Ministry of Internal Affairs. At 9.25 a.m. Ghenadie Brega, Oleg Brega and a Hyde Park member who is not an applicant were arrested on the ground that the demonstration had not been authorised. They were taken to a police station where they were body searched and kept for approximately five hours. According to the applicants the police examined and made copies of their documents including personal letters. Two of them were placed in cages and later in cells. Later they were taken to the Centru District Court and, since the hearing was adjourned, they were released at 3 p.m. 14. On 21 September 2007 the Centru District Court examined the charges against the applicants. The applicants argued that since the Municipality had failed to examine their application for authorisation before the date of the demonstration, they had the right to hold the demonstration in accordance with section 12(5) of the Assemblies Act. Moreover, they submitted that they had been told by a representative of the local authorities that the Municipality did not have time to deal with their request and that they could hold their protest as planned. The court dismissed the applicants' submissions and found that they had breached the provision of section 11(1) of the Assemblies Act by failing to submit the application within fifteen days in advance of the planned assembly. According to the court, the protest should have been held on 14 September 2007 at the earliest. Ghenadie and Oleg Brega were found guilty of organising an unauthorised demonstration and fined 800 Moldovan lei (MDL) each (approximately 48 euros (EUR)). Another Hyde Park member who is not applicant in the present case was fined MDL 200. The applicants' appeal was dismissed by the Chişinău Court of Appeal on the same grounds on 23 October 2007. 15. In the meantime, on 7 September 2007, the Municipality examined the application of 30 August 2007 (see paragraph 12 above) and issued an authorisation to organise and stage a protest in front of the buildings of the Ministry of Internal Affairs and the Prosecutor General's Office between 8 and 11 September 2007 to Mr Juraveli. 16. In the morning of 10 September 2007 several members of Hyde Park started to protest in front of the buildings of the Ministry of Internal Affairs and the Prosecutor General's Office; however, several minutes later the police arrived and arrested three persons (Mr Juraveli, Mr Oleg Brega and Mr Hristea-Stan) on the ground that the authorisation did not contain the names of all the persons involved in the protest. The Government maintained that they had been detained for breach of the peace and for having shouted insults about the Minister for Internal Affairs. At the police station those arrested were questioned and searched. They were released after five hours. The applicants maintained that, while detained, they were not allowed to make any telephone calls or to contact a lawyer. 17. The police filed administrative proceedings against the arrested persons; however, on 21 September 2007 the Centru District Court decided to discontinue the proceedings. 18. On 5 September 2007, Mr Oleg Brega wrote to the Prosecutor General making a criminal complaint in respect of the actions of the police at the demonstrations of 30 August and 4 September. A further letter to that effect was sent on 10 January 2008. The applicants maintain that they did not receive an official response to either letter. 19. 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, of opinion, as well as freedom of expression in public through words, images or through other available means. (2) Freedom of expression shall not harm the honour or dignity of others or the right of others to have their own opinion. (3) The law prohibits and punishes the contestation 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 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, and they may be organised and take place only peacefully and without the use of weapons.” 20. 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 at 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. Section 19 Participants at 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.” 21. 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.” 22. 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.” 23. Article 14 of the Civil Code (on compensation for damage) provides that any person whose rights have been infringed may request full compensation in respect of the damage thus caused. 24. 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.