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FOURTH
SECTION
CASE OF
HYDE PARK AND OTHERS v. MOLDOVA (no. 2)
(Application
no. 45094/06)
JUDGMENT
STRASBOURG
31 March
2009
FINAL
30/06/2009
This
judgment may be subject to editorial revision.
In the case of Hyde Park and Others v. Moldova (no. 2),
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ledi
Bianku,
Mihai
Poalelungi,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 10 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33482/06) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Hyde Park (a former non-governmental
organisation) and five Moldovan nationals, Mr Gheorghe Lupuşoru,
Mr Anatol Hristea-Stan, Ms Mariana Gălescu,
Ms Alina Didilică and Mr Oleg
Brega (“the applicants”) on 25
August 2006. On 2 June 2008 the non-governmental organisation Hyde
Park ceased to exist. Its successor, the Hyde Park unincorporated
association, expressed its intention to pursue the application before
the Court.
- The
applicants were represented by Mr A. Postică,
a lawyer practising in Chişinău, and a member of the
non-governmental organisation Promo-Lex. The Moldovan Government
(“the Government”) were represented by their Agent, Mr
Vladimir Grosu.
- The
applicants alleged, in particular, a breach of their right to freedom
of assembly and to a fair trial.
- On
4 April 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- 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: Gheorghe Lupuşoru, Anatol
Hristea-Stan, Mariana Gălescu, Alina
Didilică and Oleg Brega who were born
in 1969, 1953, 1982, 1978 and 1973 respectively and live in Chişinău,
Chişinău, Chişinău, Cazangic and Pepeni
respectively.
- On
26 September 2005 Hyde Park applied to the Chişinău
Municipal Council for authorisation to hold a peaceful rally in the
Stefan cel Mare Park in Chişinău on 14 October 2005, in
support of freedom of speech.
- On 7 October 2005 the Chişinău Municipal
Council rejected the application on the ground that on the same date
a number of events were planned in the city centre, including in the
Stefan cel Mare Park, as it was a day of public holiday. This
decision was sent by mail to Hyde Park on 10 October and was
received by it on 12 October 2005.
- On
12 October 2005 the first applicant challenged the refusal in court
and argued, inter alia, that it was unlawful and contrary to
Article 11 of the Convention. It also asked that the case be examined
urgently.
- On 2 December 2005 the Chişinău Court of
Appeal dismissed the applicants’ action while finding that the
Municipal Council had lawfully rejected its application. The court
considered that since other events were scheduled to take place in
the park on that day, such as exhibitions, sports events, concerts
and other demonstrations, Hyde Park’s rally might hinder those
events and endanger public order. Moreover, the application to the
Municipal Council had been signed by the president of Hyde Park and
there was no evidence in the case file that the council of Hyde Park
had approved it.
- Hyde
Park appealed against this judgment and argued that the judgment
breached its members’ right to freedom of assembly as
guaranteed by Article 11 of the Convention and was also contrary to
the provisions of the Assemblies Act. There was no evidence that the
rally would endanger public order.
- On
3 May 2006 the Supreme Court of Justice dismissed the first
applicants’ appeal on points of law while reiterating that
authorising Hyde Park’s rally at the same time as the other
cultural and sports demonstrations in the park ran the risk of
resulting in violent clashes and thus endangered public order.
II. RELEVANT DOMESTIC LAW
- The relevant provisions of the Assemblies Act of 21
June 1995 read as follows:
“Section 6
(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.
Section 7
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.
Section 8
(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.
Section 11
(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.”
Section 12
(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.
Section 14
(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...
Section 15
(1) The organiser of the assembly can
challenge in the administrative courts the refusal of the local
government.”
THE LAW
- The
applicants complained that the proceedings were not fair within the
meaning of Article 6 § 1 because the courts failed to give
relevant and sufficient reasons in their judgments. The relevant part
of Article 6 § 1 reads as follows:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. ...”
- The applicants also complained that the refusal to
authorise their protest violated their right to freedom of peaceful
assembly as guaranteed by Article 11 of the Convention, which
provides:
“1. Everyone has the right to freedom
of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime,
for the protection of health or morals or for the protection of the
rights and freedoms of others. This Article shall not prevent the
imposition of lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the administration
of the State.”
I. ADMISSIBILITY OF THE CASE
- The
Court notes that after the lodging of the present application Hyde
Park underwent transformation in that it ceased to exist as a
registered non-governmental organisation and re-emerged as an
unincorporated association (see paragraph 1 above). It has not been
disputed that the new Hyde Park is entitled to pursue the application
and the Court sees no reason to hold otherwise (see, mutatis
mutandis, David v. Moldova, no. 41578/05, § 28,
27 November 2007). Moreover, the Court considers that Hyde Park’s
capacity to pursue the proceedings is not affected by the fact that
it is unincorporated (see, mutatis mutandis, Christians against
Racism and Fascism v. the United Kingdom, no. 8440/78, Commission
decision of 16 July 1980, Decisions and Reports 21, p. 138).
- The
Court considers that the present application raises questions of fact
and law which are sufficiently serious for their determination to
depend on an examination of the merits, and that no grounds for
declaring it inadmissible have been established. The Court therefore
declares the application admissible. In accordance with its decision
to apply Article 29 § 3 of the Convention (see
paragraph 4 above), the Court will immediately consider its merits.
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
- 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 has been an interference with the
applicants’ right guaranteed by Article 11 of the Convention.
However, that interference was prescribed by law, namely by 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 on 14 October 2005 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 7 October 2005 (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 relied 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 practical 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, United Communist Party of Turkey and
Others v. Turkey, 30 January 1998, § 47, Reports of
Judgments and Decisions 1998 I).
- Turning
to the circumstances of the present case, the Court observes that the
Municipality rejected Hyde Park’s application to hold a protest
demonstration planned for 14 October 2005 on the grounds that other
events were scheduled to take place in the Stefan cel Mare Park. 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. There was no suggestion that
the park in which the assembly was to take place was too small to
accommodate all the various events planned there. Moreover, there was
never any suggestion that the organisers intended to disrupt public
order or to seek a confrontation with the authorities or other groups
meeting in the park on the day in question. Rather their intention
was to hold a peaceful rally in support of freedom of speech.
Therefore, the Court can only conclude that the Municipality’s
refusal to authorise the demonstration did not respond to a pressing
social need.
- It
is true that new reasons for rejecting Hyde Park’s application
to hold an assembly were given by the courts during the subsequent
judicial proceedings. However, sections 11 and 12 of the Assemblies
Act give exclusive authority to the local authorities to authorise or
not assemblies. The law does not provide, and the Government did not
argue the contrary, that other State authorities such as the courts
were entitled under the Assemblies Act to exercise this duty in their
own name or on behalf of the local authorities. Moreover, the Court
can but note that those reasons were adopted in decisions given by
the courts long after the date planned for the demonstrations. For
that reason the Court considers that the judicial proceedings
following the Municipality’s decision rejecting Hyde Park’s
application for holding an assembly and the reasons given by the
courts for upholding that decision must be disregarded.
- 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.
III. alleged violation of Article 6 § 1 of the
Convention
- The
applicants also alleged a violation of Article 6 § 1 of the
Convention, arguing that the proceedings had been unfair because the
domestic courts failed to give reasoned judgments. 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.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed 4,000 euros (EUR) for Hyde Park and EUR 500
for each individual applicant in respect of moral damage.
- The
Government disagreed and argued that the amount was excessive and
unsubstantiated.
- The
Court awards EUR 3,000 to Hyde Park. The award in favour of Hyde Park
should be paid to the applicants’ representative, Mr A.
Postică, to be held and managed on behalf of Hyde Park. In so
far as the claims by the individual applicants are concerned, the
Court does not consider these to be justified in the present case and
therefore dismisses them.
B. Costs and expenses
- The
applicant also claimed EUR 1,300 for the costs and expenses incurred
before the Court.
- The
Government contested the amount and argued that it was excessive.
- The
Court awards EUR 1,000 for costs and expenses. This sum should be
paid to the applicants’ representative, Mr A. Postică.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares admissible the application;
2. Holds that there has been a violation of Article 11 of the
Convention;
- Holds that there is no need to examine
separately the complaint under Article 6 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, the
following amounts to be converted into the currency of the respondent
State at the rate applicable on the date of settlement:
(i) EUR
3,000 (three thousand euros) in respect of non-pecuniary damage, to
be paid to the applicants’ representative, Mr A. Postică,
to be held and managed on behalf of Hyde Park;
(ii) EUR
1,000 (one thousand euros) in respect of costs and expenses to be
paid to Hyde Park’s representative, Mr A. Postică;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 31 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
