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- Year: 2009
- Language: English
- Document Type: International Court Case
- Topic: Assembly and Protest,Defending Civil Society
CASE OF HYDE PARK AND OTHERS v. MOLDOVA ( no . 2)
(Application no. 45094/06)
31 March 2009
This judgment may be subject to editorial revision. C O N SEIL
D E L’EU R O PE
C O U N C IL
O F EU R O PE
C O U R EU R O PÉEN N E D ES D RO ITS D E L’H O M M E
EU R O PEA N CO U RT O F H U M A N R IG H TS
HYDE PARK AND OTHERS v. MOLDOVA (no. 2) JUDGMENT 1
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 ju dgme nt, which was adopted on that date:
1. 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 -gover nmental organisation)
and five Moldovan nationals, Mr Gheorghe Lupu şoru, Mr Anatol Hristea –
Stan, Ms Mariana G ălescu, Ms Alina Didili că 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.
2. The applicants we re represented by Mr A. Postic ă, a lawyer practising
in Chişinău, and a mem ber of the non -governmental organisation Promo –
Lex. The Moldovan Government (“the Government”) were represented by
their Agent, Mr Vladimir Grosu .
3. The applicant s alleged, in particular, a breach of their right to freedom
of asse mbly and to a fair trial .
4. 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 tim e as its admi ssibility (Article 29
§ 3 of the Convention ).
2 HYDE PARK AND OTHERS v. MOLDOVA (no. 2) JUDGMENT
I. THE CIRCUMSTANCES OF THE CASE
5. At the time of the events giving rise to the application, Hyde Park (the
first applicant) was registered with the Moldovan Ministry of Jus tice 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 St ate. 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 ne wspaper, 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 als o 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:
Gheorghe Lupu şoru, Anatol Hristea -Stan, Mariana G ălescu, Alina Didili că
and Oleg Brega who were born in 1969, 1953, 1982, 1978 and 1973
respectively and live in Chişinău, Chişinău, Chişinău, Cazangic and Pepeni
7. On 2 6 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.
8. On 7 October 2005 the C hişinău 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.
9. 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.
10 . 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 tha t 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
HYDE PARK AND OTHERS v. MOLDOVA (no. 2) JUDGMENT 3
those events and endanger public order. Moreover, the application to the
Munici pal 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
11 . 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
12 . On 3 May 2 006 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
II. RELEVANT DOMEST IC LAW
13 . The relevant provisions of t he Assemblies Act of 21 June 1995 read
(1) Assemblies shall be conducted peacefully, without any sort of w eapon s, 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 lif e 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
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
4 HYDE PARK AND OTHERS v. MOLDOVA (no. 2) JUDGMENT
authorities, the local authorities , prosecutors ’ office s, the courts or companies with
(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
(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
(4) Free access to the premises of the institutions listed in subsection (3) shall be
(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 ti me 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 fo r the sound conduct of the assembly;
(g) the services the organiser of the assembly asks the Municipal Council to
(3) If the situation so requires, the Municipal Council may alter certain aspects of
the prior notification with the agreement of t he 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 .
HYDE PARK AND OTHERS v. MOLDOVA (no. 2) JUDGMENT 5
(2) When the prior notification is considered at an ordinary or ex traordinary
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 rejectin g the application for holding an assembly shall be reasoned
and presented in writing. It shall contain reasons for refusing to issue the
(1) The organiser of the assembly can challenge in the administrative courts the
refusal of the local government. ”
14 . The applicant s 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
“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 tri bunal established by law. …”
15 . The applicant s also complain ed 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 a nd 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.”
6 HYDE PARK AND OTHERS v. MOLDOVA (no. 2) JUDGMENT
I. ADMISSIBILITY OF THE CASE
16 . 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 abov e). 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 Report s 21, p. 138).
17 . 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 declarin g 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. ALLEGE D VIOLATION OF ARTICLE 11 OF THE CONVENTION
18 . The applicant s 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.
19 . 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.
20 . 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 w ill entail a violation of Article 1 1 unless it is
“prescribed by law”, has an aim or aims that are legitimate under pa ragraph
2 of the Article and is “necessary in a democratic society” to achieve such
aim or aims.
21 . In so far as the lawfulness of the interference is concerned, t he 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
HYDE PARK AND OTHERS v. MOLDOVA (no. 2) JUDGMENT 7
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 w ould 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 ind issociable 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).
22 . 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) .
23 . 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
Con vention 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 s econd 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).
24 . Referring to the hallmar ks 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 ).
25 . 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
8 HYDE PARK AND OTHERS v. MOLDOVA (no. 2) JUDGMENT
ascertain ing 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).
26 . 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 i n 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 ac commodate 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.
27 . 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, s ections 11 and 12 of the Assemblies Act give
exclusive authority to the local authorities to a uthorise 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 au thorities. 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 th at decision must be disregarded .
28 . Bearing in mind the above circumstances, the Court concludes that
the inter ference did not correspond to a pressing social need and thus that it
HYDE PARK AND OTHERS v. MOLDOVA (no. 2) JUDGMENT 9
was not necessary in a democratic society. Accordingly, there has been a
violation of Article 1 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
29 . The applicant s 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 do es
not raise a separate issue from that examined under Article 1 1 above , the
Court does not consider it necessary to examine it separately.
IV . APPLICATION OF ARTICLE 41 OF THE CONVENTION
30 . Article 41 of the Convention provides:
“If the Court finds th at 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 part y.”
31 . The applicant s claimed 4,000 euros (EUR) for Hyde Park and
EUR 500 for each individual applicant in respect of moral damage .
32 . The Government disagreed and argued that the amount was
ex cessive and unsubstantiated.
33 . The Court awards EUR 3,000 to Hyde Park . Th e 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 the se to
be justified in the present case and therefore dismisses them .
B. Costs and expenses
34 . The applicant also claimed EUR 1,30 0 for the costs and expenses
incurred before the Court.
35 . The Government contested the amount and argued that it was
36 . The Court awards EUR 1,000 for costs and expenses. This sum
should be pa id to the applicants ’ representative, Mr A. Postic ă.
10 HYDE PARK AND OTHERS v. MOLDOVA (no. 2) JUDGMENT
C. Default interest
37 . 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 b e added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares admissible the application;
2. Holds that there has been a violation of Article 11 of the Convention;
3. Holds that there is no need to examine separately the complaint under
Article 6 of the Convention;
(a) that the respondent State is to pay the applicant s, 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 3,00 0 ( 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 p lus three percentage points;
5. 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
Regis trar President