AS TO THE ADMISSIBILITY OF
Application no. 28793/02
by CHRISTIAN DEMOCRATIC PEOPLE'S PARTY
The European Court of Human Rights (Fourth Section), sitting on 22 March 2005 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr J. Borrego Borrego,
Mr J. Šikuta, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 8 July 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, The Christian Democratic People's Party (hereinafter “CDPP”), is an oposition Parliamentary political party from the Republic of Moldova. It was represented before the Court by Mr Vitalie Nagacevschi and Mr Vladislav Gribincea acting on behalf of the “Lawyers for Human Rights”, a non-governmental organisation based in Chişinău. The respondent Government were represented by Mr V. Pârlog, their Agent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
Towards the end of 2001 the Government of Moldova made public its intention to make compulsory the study of the Russian language in schools for children aged seven and over.
The above initiative generated vehement criticism from the opposition and heated public debate.
On 26 December 2001, the Parliamentary faction of the CDPP informed the Municipal Council about its intention to hold a meeting with its voters on 9 January 2002, in the Square of the Great National Assembly, in front of the seat of the Government. It declared that the meeting with the voters would concern the introduction of the compulsory study of Russian in schools and it relied on Article 22 of the Law on the Status of Deputies (see below), which, according to the CDPP, did not impose on the Members of Parliament any obligation to obtain prior authorisation for meetings with their voters.
2. Decisions of the Municipal Council
By a decision of 3 January 2002 the Municipal Council classified the gathering to be held on 9 January 2002 as a “demonstration” within the meaning of Articles 4, 8, 12 and 13 of the Law on the Organisation and Conduct of Assemblies (see below) and authorised the Parliamentary faction of the CDPP to hold it in the Square of the National Opera. It did not give any reasons for the change of location.
Later, on 23 January 2002, the Municipal Council addressed a letter to the Ministry of Justice, informing it that there was a discrepancy between the provisions of the Law on the Status of Deputies and those of the Law on the Organisation and Conduct of Assemblies and that it did not know which to apply. It stated inter alia that there were many renowned lawyers who supported the idea that the CDPP Deputies had the right to hold meetings with their voters in the Square of the Great National Assembly in accordance with the provisions of Sections 22 and 23 of the Law on the Status of Deputies without needing any authorisation. It cited in that respect the opinion of an Ombudsman who considered that since Article 23 of the Law on the Status of Deputies proclaimed the deputies' right to demand cessation of a breach of law on the spot, the CDPP deputies were entitled to demand the cessation of the alleged violations related to the introduction of compulsory study of Russian in front of the Government building because it was also the seat of the Ministry of Education. Accordingly, the Municipal Council requested the Ministry of Justice to ask the Parliament for an official interpretation of the legislation in question.
On 26 January 2002 the Municipal Council issued a decision which stated inter alia:
“while the provisions of the domestic legislation are contradictory in respect of the demonstrations organised by the CDPP and the opinions of the specialists in law are contradictory, while bearing in mind the great social impact of a possible decision regarding the matter and the consequences it might entail, the Municipal Council has formally addressed the Ministry of Justice with a request to ask the Parliament for an official and urgent interpretation of the pertinent legislation.... The Municipal Council's decision of 3 January 2002 is suspended until the official interpretation by the Parliament.”
3. Gatherings held by the CDPP deputies
In the meantime, on 9 January 2002, the Parliamentary faction of the CDPP held a gathering in the Square of the Great National Assembly, in front of the headquarters of the Government. It also held gatherings on 11, 13, 15, 16 and 17 January 2002.
4. Warning letter issued by the Ministry of Justice and the CDPP's reply to it
On 14 January 2002, the Ministry of Justice issued an official warning to the CDPP in accordance with Article 27 of the Law on Parties and other Socio-Political Organisations. It stated inter alia that the CDPP had breached the provisions of Article 6 of the Law on Organisation and Conduct of Assemblies by organising demonstrations in the Great National Assembly Square on 9, 10, 11 and 13 January 2002 in breach of the Municipal Council's authorisation to organise a demonstration only on 9 January 2002 in the Square of the National Opera. It called for an immediate halt to the actions, which it considered to be illegal and unconstitutional and which it claimed were not meetings with voters in the sense of the Law on the Status of Deputies, but demonstrations falling under the Law on the Organisation and Conduct of Assemblies. It asked the CDPP for a written explanation within three days and warned that if it failed to comply with the warning, the Ministry would put a temporary ban (suspendarea activităţii) on the Party in accordance with Article 29 of the Law on Parties and other Socio-Political Organisations (see below).
On 17 January 2002 the President of the CDPP wrote to the Ministry of Justice a letter in which he stated that the gatherings were not organised by the CDPP but by members of its Parliamentary faction, and that therefore it was not the responsibility of the Party that should have been called into question but that of the Deputies. He also relied on Article 22 of the Law on the Status of Deputies, stating that it was a special law, applicable to meetings between Deputies and voters, while the Law on the Organisation and Conduct of Assemblies was a general law. He finally submitted that an eventual ban on the Party would amount to a political measure taken by the Communist Party in order to repress the opposition.
5. The temporary ban imposed on the CDPP
On 18 January 2002 the Ministry of Justice issued a decision by which it imposed a one month ban on the CDPP, in accordance with Article 29 of the Law on Parties and other Socio-Political Organisations.
The measure was imposed for the CDPP's organisation of unauthorised demonstrations on 9, 10, 11, 13, 15, 16 and 17 January 2002.
The Ministry of Justice dismissed the CDPP Leader's argument that it was not the Party's responsibility. It stated inter alia that the gatherings organised by the CDPP on the above dates were in fact demonstrations, marches and manifestations and were therefore within the field of the Law on the Organisation and Conduct of Assemblies and not within that of the Law on the Status of Deputies as the CDPP claimed.
According to the decision, the CDPP had breached the provisions of Articles 5, 6, 7, 8, 9 and 11 of the Law on the Organisation and Conduct of Assemblies by not obtaining a prior authorisation to conduct demonstrations from the Municipal Council and by blocking the public roads.
The participation of minors in the CDPP demonstrations was in breach of Article 15 of the International Convention on the Rights of the Child, Article 13 (3) of the Law on the Protection of Children, and Article 56 (g) of the Law on Education (see below).
The CDPP's actions also disclosed a violation of Articles 27 and 29 of the Law on Parties and other Socio-Political Organisations (see below); of Aricles 15 (1) and (2) of the Law on the Status of Deputies and of Article 32 of the Constitution (see below). The use of such slogans as “I would rather be dead than a communist” (mai bine mort decât comunist) could be interpreted as a call to public violence and as an encroachment on the legal and constitutional order.
6. Proceedings against the ban of the Party and the lifting of the ban
On 24 January 2002 the CDPP challenged the decision of the Ministry of Justice arguing inter alia that the gatherings were meetings with the voters within the scope of the Law on the Status of Deputies and not assemblies falling within the scope of the Law on the Organisation and Conduct of Assemblies.
On 8 February 2002 the Ministry of Justice issued a decision by which it lifted the temporary ban imposed on the CDPP. It stressed that the CDPP had breached all the laws mentioned in the decision of 18 January 2002 and that the temporary ban had been necessary and justified. However, due to the inquiry made by the Secretary General of the Council of Europe under Article 52 of the Convention, and due to the approaching local elections, the CDPP should be authorised to restart its activity. The decision of 8 February 2002 did not annul, however, the decision of 18 January 2002.
On 7 March 2002 the Court of Appeal found in favour of the Ministry of Justice and ruled that the decision of 18 January 2002 was legal. It dismissed the CDPP's argument that the Party could not be held liable for the actions of its members, namely, of the Parliamentary faction of CDPP. It found that the gatherings organised by the CDPP were in fact demonstrations, meetings and marches which fell under the provisions of the Law on the Organisation and Conduct of Assemblies and not meetings with voters. Even assuming that the gatherings were intended as meetings with voters, they had been gradually transformed into demonstrations. Accordingly, the CDPP needed an authorisation in order to organise them. It also stated that as a result of the demonstrations, the public transport company had suffered losses of 12,133 Moldovan Lei (MDL) (the equivalent of EUR 1,050 at the time). The participation of minors in the demonstrations organised by the CDPP had been in breach of the International Convention on the Rights of the Child, the Law on the Protection of Children and the Law on Education.
The CDPP lodged an appeal against this decision with the Supreme Court of Justice relying inter alia on Articles 10 and 11 of the Convention.
On 17 May 2002 a panel of the Supreme Court of Justice delivered its judgment by which it dismissed the appeal lodged by the CDPP. It endorsed the arguments of the Court of Appeal and found inter alia that since the demonstrations organised by the CDPP had been illegal, the sanction imposed on it was not disproportionate. It also stated that in any event the decision of the Ministry of Justice did not have any negative effects on the CDPP since it was not enforced, the CDPP's accounts were not frozen and the Party could continue its activity unhindered.
7. Proceedings by the Government to declare the gatherings held by the CDPP illegal and to order their halt
As regards the request of 23 January 2002 addressed to the Ministry of Justice by the Municipality for the interpretation of the law, the Ministry of Justice did not reply to it and did not address any request to the Parliament. However, on 21 February 2002 the Government lodged an application with the Supreme Court of Justice asking it, inter alia, to declare illegal the demonstrations organised by CDPP and to order their cessation.
On 25 February 2002 the Supreme Court of Justice ruled in favour of the Government and declared the gatherings illegal. It stated, inter alia, that
“Even if one could admit that the CDPP had the initial intention to hold meetings with its voters, those meetings were later transformed into demonstrations, marches, processions and picketing which fall under the provisions of the Law on the Organisation and Conduct of Assemblies. In these conditions, the leaders of the CDPP had to comply with the provisions of the Law on the Organisation and Conduct of Assemblies...”
The applicants appealed.
On 15 March 2002 the Supreme Court of Justice dismissed the appeal and the judgment of 25 February 2002 became final.
8. Video submitted by the Government
The Government submitted a video with images of gatherings held by the CDPP deputies on 15, 16, 17 and 18 January 2002. The gatherings were held in the Square of the Great National Assembly, in a pedestrian area, in front of the Government building. The number of participants appeared to be several hundred and included people of different ages varying from school children to pensioners. According to the time displayed on the images the gatherings commenced at around 1 p.m. and lasted for about two hours. Different personalities made speeches critical of the ruling Communist Party, the Government and its policy. Music was played and some participants danced. It appears from the video that the traffic was not disturbed as a result of the gatherings held on those dates and no signs of violence can be seen.
The applicant's representative in his comments on the video stated that it demonstrated the peaceful character of the gatherings.
B. Relevant domestic law
The Constitution of the Republic of Moldova
(3) The contestation and defamation of the State and of the people, incitement to war of aggression, to hatred on ethnic, racial or religious grounds, incitement to discrimination, to territorial separatism, to public violence, as well as other encroachments on the constitutional order are forbidden and are punishable under the law.
The Law on the Status of Deputies
(1) A deputy is obliged strictly to observe the Constitution, the laws and the rules of moral and ethics.
(2) A deputy has the duty to be dependable, to contribute by his own example to the consolidation of the State discipline, to the fulfilment of civil obligations, to the enforcement of human rights and to the observance of the law.
(3) Cases of breach of the rules of ethics by deputies should be examined by the Parliamentary Commission on law, appointments and immunity.
Article 22 (3) in force at the material time
“Local authorities should provide the deputy with all necessary assistance for the organisation of his work with voters. They should put at his disposal accommodation for meetings with them.”
On 26 July 2002 Article 22(3) was amended as follows:
“Local authorities are obliged to provide the deputy with the necessary assistance for the organisation of his work with voters. For this purpose, they [the local authorities] should ensure access to buildings or other public places, provide equipment and any necessary information and should inform voters in good time about the place and the time of the meeting with the deputy.”
On 26 July 2002 a new Article was introduced, Article 22/1:
Deputies have the right to organise demonstrations, manifestations, meetings, processions and other peaceful gatherings in accordance with the Law on the Conduct and Organisation of Assemblies.
(1) A deputy, in his quality as the representative of the supreme legislative power, has the right to demand on the spot the cessation of a breach of law...
The Law on the Organisation and Conduct of Assemblies
Assemblies may be conducted only after having been declared by the organisers to the local councils.
(1) “Assemblies must be conducted peacefully, without any sort of weapon, while guaranteeing 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 public order and the physical integrity and life of persons or their property.”
On 26 July 2002 the following provision was added to the Article:
(2) The involvement of students in unauthorised assemblies by their educators or by other persons from their schools shall be forbidden.
Assemblies shall be interrupted in the following circumstances:
a) denial and defamation of the State and of the people;
b) incitement to war of aggression, to hatred on ethnic, racial or religious grounds;
c) incitement to discrimination, to territorial separatism, to public violence;
d) encroachment on the constitutional order.
“(1) Assemblies can be conducted in squares, streets, parks and in other public places from cities, towns and villages, as well as in public buildings.
(2) It is forbidden to conduct an assembly in the buildings of the public authorities, of the local administration, of the prosecutor's office, of the courts or of companies with armed security.
(3) It is forbidden to conduct assemblies:
a) at a distance closer than fifty metres from the building of the Parliament, the residence of the President of Moldova, the seat of the Government, the Constitutional Court and the Supreme Court of Justice;
b) at a distance closer than 25 metres from the buildings of the central administration authority, of the local public administration, courts, prosecutor's offices, police, prisons and social rehabilitation institutions, military objects, railway stations, airports, hospitals, companies which use dangerous equipment and machines or diplomatic institutions.
(4) Free access to the premises of the institutions enumerated at paragraph (3) must be guaranteed.
(5) The local public administration authorities may, if the organisers agree, establish places or buildings for permanent assemblies.”
“The time of the assembly is to be established by the organiser and the local council of the city, town or village.”
“(1) Not later than 15 days prior to the date of the assembly, the organiser shall deposit with the Municipal Council a declaration, a specimen of which is set out in the annex which forms an integral part of this Law.
(2) The prior declaration must indicate:
(a) the designation 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 place 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 which 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 declaration with the agreement of the organiser of the assembly.”
“(2) When the prior declaration is considered at an ordinary or extraordinary meeting of the Municipal Council, the discussion shall deal with the form, timetable, place and other conditions for the conduct of the assembly and the decision taken shall be adjusted to the specific situation.”
The Law on Parties and other Socio-Political Organisations
“...In the event that breaches of the Statute or of the Law are discovered in the activities of a party or a socio-political organisation, the Ministry of Justice shall warn in writing its leaders, demanding the elimination of the irregularities within a preset time limit.“
“The Ministry of Justice shall impose a temporary ban on the activities of a party or socio-political organisation in the event that it breaches the provisions of the Constitution or those of the present law, or does not comply with the demands of a warning.
On 21 November 2003, this paragraph was amended as follows:
'The Ministry of Justice shall impose a temporary ban on the activities of a Party or socio-political organisation in case it breaches the provisions of the Constitution.'
In this case, the Ministry of Justice will inform in writing the party's leadership about the legal irregularities which have taken place and will set a time limit for their elimination.
During the electoral campaigns the activity of parties and other socio-political organisations can be suspended only by the Supreme Court of Justice.
During the temporary ban, it is forbidden for the party to use mass media to create propaganda and agitation, to carry out bank operations or other operations in respect of its assets, as well as to participate in elections.
After elimination of all the legal irregularities, the party shall inform the Ministry of Justice, which within a five-day time limit will lift the temporary ban.
The activity of the party or of other socio-political organisation can be suspended for a period up to six months. If the legal irregularities are not eliminated the activity can be suspended for a period of one year.”
The Convention on the Rights of the Child of 20 November 1989
“1. States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly.
2. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”
Law on the Protection of Children
“(1) Children have the right to associate in non-government organisations in accordance with the law.
(2) The State must provide children's non-government organisations with financial support, put at their disposal buildings and give them fiscal incentives.
(3) The involvement of children in politics and their association in political parties is forbidden.”
The Law on Education
“It is the duty of educators:
g) not to involve children in street actions (meetings, demonstrations, picketings, etc.).”
The Code of Administrative Offences
“(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 180 and 450.”
On 26 July 2002 the following provision was added to the Code:
“(7) The involvement of children in unauthorised assemblies shall be punishable by a fine of between MDL 180 and 360.”
1. The applicant complains under Article 6 § 1 of the Convention that it did not have a fair trial and that the proceedings were unreasonably long.
2. The applicant complains under Article 10 of the Convention that it was sanctioned for exercising its right to freedom of expression during the meetings.
3. The applicant complains under Article 11 of the Convention that it was sanctioned for exercising its right to freedom of assembly in order to protest against the policy of the Government. It also states that the temporary ban violated its freedom of association.
4. The applicant complains under Article 1 of Protocol No. 1 to the Convention that during the ban it was precluded from making use of its property and bank accounts.
A. The Government's objection
The Government submit that the applicant did not comply with the decision of the Ministry of Justice of 18 January 2002 and even continued to hold illegal demonstrations. The decision of the Ministry of Justice did not affect in any way the applicant's situation given that its bank accounts were not frozen and that it continued to have control over its assets. Accordingly, the temporary ban did not have any political or legal consequences and the applicant cannot pretend to be a victim within the meaning of Article 34 of the Convention. Moreover, the decision of the Ministry of Justice of 8 February 2002 which lifted the temporary ban had redressed the applicant's position, before the application was introduced with the Court. Accordingly even assuming that the CDPP was a victim, it lost this status after 8 February 2002.
The applicant argues that for the CDPP's qualification as a victim, it is not necessary that its members be arrested, its bank accounts frozen and its goods put under distraint. According to the applicant, the temporary ban had a different purpose, namely to intimidate and to discourage the members and the supporters of the Party from expressing freely their ideas and from exercising their freedom of assembly. It also had the purpose of defaming the Party. Accordingly, the applicant considers that it had the status of victim between 18 January 2002 and 8 February 2002.
The applicant further argues that it never lost this status because the decision of the Ministry of Justice of 18 January 2002 was never annulled. The decision of 8 February 2002 did not annul it, but merely allowed the CDPP to restart its activity without admitting any violation of its Convention rights and while reiterating the legality of the decision of 18 January 2002. Moreover, the decision of 8 February 2002 could not have had any effect since, according to Article 29 of the Law on Parties, only the Supreme Court of Justice could suspend the activity of political parties during an election campaign, and the campaign officially started on 5 February 2002.
In addition, the applicant submits that its complaints under Article 10 and Article 11 of the Convention are not limited to the decision of the Ministry of Justice of 18 January 2002, but also refer to the subsequent court proceedings which ended with the judgments of the Court of Appeal and of the Supreme Court of Justice of 7 March 2002 and of 17 May 2002 respectively.
The applicant concludes that since the State has neither acknowledged the existence of a breach nor afforded adequate redress, the CDPP had and continues to have the status of victim.
The Court reiterates that the word "victim" in Article 34 refers to the person directly affected by the act or omission at issue; and the existence of a violation is conceivable even in the absence of prejudice, prejudice being relevant only for the purposes of Article 41 (see, inter alia, Walston v. Norway, no. 37372/97, § 58, 3 June 2003; Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, § 66; Adolf v. Austria, judgment of 26 March 1982, Series A no. 49, § 37).
It is true that the applicant Party's accounts and assets were not frozen. Nevertheless, during the period of suspension the Party continuously ran the risk of having its accounts frozen and its assets seized. Moreover, it cannot be discounted that the suspension gave rise to a “chilling effect” on the Party's freedom to exercise its freedom of expression and to pursue its political goals.
As to the Government's submission that the applicant in any event lost its victim status after the ban was lifted on 8 February 2002, the Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, inter alia, Prodan v. Moldova, no. 49806/99, § 47, ECHR 2004-...; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). In the present case the Court notes that the national authorities have neither acknowledged an alleged breach of the applicant's Convention rights by the decision of the Ministry of Justice of 18 January 2002 nor have they afforded any redress for it. On the contrary, in its decision of 8 February 2002 the Ministry of Justice confirmed its legality, and later the Court of Appeal and the Supreme Court of Justice validated it by their judgments of 7 March 2002 and 17 May 2002 respectively.
In these circumstances, the Court considers that the applicant may claim to be a victim of a violation of Article 10 of the Convention and of Article 11 of the Convention.
B. Alleged violation of Articles 10 and 11 of the Convention
The applicant complains that the temporary ban violated its right to freedom of expression as guaranteed by Article 10 of the Convention and its right to freedom of peaceful assembly and association as guaranteed by Article 11 of the Convention.
The provisions invoked by the applicant provide as follows:
Article 10 of the Convention
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Article 11 of the Convention
“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.”
The Government argue that Article 11 is not applicable in the present case since the gatherings organised by the CDPP on 9, 10, 11, 13, 15, 16 and 17 January 2002 were not peaceful and were not authorised in accordance with the law.
The CDPP breached the provisions of Articles 5 and 6 of the Law on the Organisation and Conduct of Assemblies, Articles 13 and 15 of the Law on the Protection of Children and Article 56 of the Law on Education.
The gatherings organised by the CDPP could not be considered as meetings with voters since minors were involved in them and according to the Moldovan legislation minors cannot vote and accordingly cannot be considered as voters. Moreover, in accordance with Moldovan legislation the involvement of minors in political activities is considered to be illegal.
The measure was applied to the applicant also for its failure to observe the deadline to respond to the Ministry of Justice's official warning of 14 January 2002.
By a decision of the Municipal Council, the applicant was authorised to organise a gathering on 9 January 2002 in the Square of the National Opera, which is a public place because it is located at a distance of several hundred metres from the Square of Great National Assembly and from the seats of the Government, Presidency and Parliament of the Republic of Moldova. However, the applicant party did not comply with the decision of the Municipal Council. Moreover, the applicant has never challenged that decision in court.
The applicant Party never complied with the measure applied and it continued its activity and its prohibited gatherings. Accordingly, the Government did not abuse its margin of appreciation and imposed on the Party a legitimate sanction which was proportionate to the legitimate aim pursued.
According to the applicant the CDPP gatherings were entirely peaceful. Their peaceful character is confirmed by the video sent by the Government.
The applicant argues that there has been an interference with its rights guaranteed by Articles 10 and 11 of the Convention.
The interference was based on the Law on the Organisation and Conduct of Assemblies, on the International Convention on the Rights of the Child, on the Law on Education and on the Law on the Protection of Children. All the statues in question were accessible since they had been published in the Official Gazette. However they did not correspond to the “foreseeability” requirement.
The uncertainty as to the applicability of the Law on the Organisation and Conduct of Assemblies to the gatherings organised by the CDPP is proved by the fact that the Municipal Council did not know whether it was applicable or not and asked the Ministry of Justice to request an official interpretation from the Parliament. In such circumstances, the law cannot be considered as foreseeable.
As to Article 15 of the International Convention on the Rights of Child, it sets out the rights of children to freedom of assembly and association. Moreover Articles 12 and 13 of the Convention guarantee the children's right to freedom of expression. It also should be noted that being an international treaty, only signatory States could be responsible under its provisions but not political parties.
As to Article 13 of the Law on Education, the Government's interpretation of the term “political activity” is too extensive and it cannot be regarded as imposing an obligation not to allow children to take part in gatherings in which issues of vital interest to them are being discussed. Moreover, a total prohibition on the presence of minors at such meetings would be unjustifiable in a democratic society.
The Government's argument that the gatherings in question could not be considered as meetings with voters because there were minors involved is not valid, since the minors are potential voters. In any event, the children who came to the CDPP meetings were accompanying their parents and the Government should have sanctioned their parents and not the CDPP.
As to Article 56 of the Law on Education, it is addressed only to educators and political parties cannot be held responsible on its basis.
According to the applicant, the interference did not pursue any of the legitimate aims prescribed by Article 10 § 2 and Article 11 § 2 of the Convention and was not necessary in a democratic society.
The leader of the CDPP replied to the Ministry of Justice's official warning within the deadline set in the warning. Contrary to the findings of the Ministry of Justice in its decision of 18 January 2002, the language used at the CDPP gatherings could not be qualified as calls to public violence or as an encroachment on the legal and constitutional order. No arguments have been adduced as to the necessity to apply such a serious sanction. The Party's activity was suspended for a period of thirty days, during which period it risked the freezing of its accounts and the seizure of all of its assets. The Party did not have the right to use its newspapers and to create agitation. Any newspaper that published statements issued by the Party could have been shut down at the request of the Prosecutor General in accordance with Article 7 of the Law on Press.
The argument that the CDPP gatherings caused pecuniary damage to the Chişinău public transport company by blocking the roads is unfounded since that company has never claimed compensation from the CDPP.
In the light of the parties' observations, the Court considers that this part of the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.
C. Alleged violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention
In its initial application the applicant submitted complaints under Articles 6 § 1 and 1 of Protocol No. 1 to the Convention; however, in their observations on the admissibility it informed the Court that it did not want to pursue those complaints. Accordingly the Court will not examine them.
For these reasons, the Court
Declares admissible, by a majority, without prejudging the merits, the applicant's complaints concerning Article 10;
Declares unanimously admissible, without prejudging the merits, the applicant's complaints concerning Article 11 of the Convention;
Decides unanimously not to examine the applicant's complaints under Article 6 § 1 of the Convention and under Article 1 of Protocol No. 1 to the Convention.
Michael O'Boyle Nicolas Bratza
Christian Democratic People’s Party (1) v. MOLDOVA DECISION
CDPP (1) v. MOLDOVA DECISION