FOURTH SECTION
DECISION
Application no. 33238/06
by Corina FUSU
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 1 June 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 15 June 2006,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Corina Fusu, is a Moldovan national who was born in 1959 and lives in Chişinău. She was represented before the Court by Mr Dorin Chirtoacă, a lawyer and the Mayor of Chişinău. The Government were represented by their Agent, Mr Vladimir Grosu.
At the time of the events the applicant was a television journalist from the State Company “Teleradio-Moldova” (“TRM”), which, at the time, ran the only Moldovan public television channel and radio station with nationwide coverage.
In 2004, following numerous protests against censorship at TRM, the Government decided to transform the company into a public company.
On 26 July 2002 Parliament enacted Law no. 1320-XV on the Public Audiovisual Institution, “Teleradio-Moldova” (“TRM”), by which the State Company “Teleradio-Moldova” became a Public Company. According to the new law, the staff of the old State Company had to pass an examination in order to be employed at the new Public Company. An Examination Commission was appointed in May 2004.
All the staff sat the examination and most of the journalists who had protested against alleged censorship at “Teleradio-Moldova” failed to be confirmed in their posts.
On 27 July 2004 the journalists who had not been retained organised a press conference at which they contended that they had been dismissed for political reasons. A feature report about that press conference was scheduled for the 7 p.m. news bulletin. However, the President of TRM took the decision to broadcast a wildlife documentary instead.
On the same date, the President of TRM issued an order by which nineteen of the individuals who had taken part in the press conference were banned from entering TRM premises. The journalists and their supporters continued their protest outside the TRM building for several months.
On 28 and 29 July 2004 the Chişinău Municipality authorised non-stop protest actions in front of TRM and the erection of tents by the protesters. The organisers of the protest actions were the applicant and another person.
On 1 August 2004 approximately one thousand protesters were present in front of the TRM headquarters building. At approximately 2 p.m. they erected a tent. The police numbering approximately one hundred and fifty officers attempted to prevent the erection of the tent; however, the protesters opposed them, invoking the Municipality's authorisation.
At 4 p.m. two battalions numbering approximately three hundred police officers attacked the protesters with rubber batons. They entered the crowd and forcibly took the tent erected by the protesters. Numerous protesters were injured as a result of the attack and five persons, including one police officer, were hospitalised.
On 2 August 2004 the applicant lodged a complaint with the Chişinău Prosecutor's Office against the actions of the police. She requested the initiation of criminal proceedings against those who had breached the protesters' right to freedom of assembly and to physical integrity.
On 3 September 2004 the Prosecutor's Office informed the applicant that her complaint would not be examined because at the time of the events of 1 August 2004 the authorisations issued by the Chişinău Municipality on 28 and 29 July 2004 had been suspended by virtue of the Prosecutor's Office's court action of 30 July 2004 challenging their legality.
The applicant challenged the Prosecutor's refusal to initiate criminal proceedings before the investigating judge of the Rascani District Court and argued, inter alia, that nobody had informed the protesters at the time of the events of 1 August 2004 about the Prosecutor's court action challenging the legality of the Municipality's authorisations. In any event, the provision of the Law on the Office of Prosecutor which provided for the suspension of any administrative act by a mere challenge to it in court by a prosecutor had been unconstitutional.
On 14 February 2005 the Rascani District Court quashed the Prosecutor's Office's decision and ordered it to examine the applicant's complaint on the merits.
On 7 April 2005 the Chişinău Prosecutor's Office dismissed the applicant's complaint on the same grounds as on 3 September 2004.
The applicant contested again the Prosecutor's decision reiterating that the Prosecutor's Office did not inform the organisers of the protest about its court action. She also stated that the Deputy Mayor of Chişinău had also been present at the protest and that he had been unaware of the court action allegedly introduced by the Prosecutor's Office on 30 July 2004.
On 28 November 2005 the applicant's appeal was dismissed by the Rascani District Court on the ground that there had been a final decision in a similar case concerning the events of 1 August 2004.
COMPLAINTS
1. The applicant complained under Article 6 of the Convention that the proceedings which she attempted to have initiated against the police were unfair.
2. She also complained under Articles 10 and 11 of the Convention that her rights to freedom of speech and freedom of assembly had been breached.
3. The applicant finally complained under Article 13 of the Convention that she did not have an effective remedy against the decision dismissing her criminal complaint against the police.
THE LAW
On 31 December 2009 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the application. The Government acknowledged the breach of the applicant's right guaranteed by Article 11 of the Convention and undertook to pay the applicant the global sum of 3,000 euros (EUR). This sum would be payable within three months from the date of notification of the judgment taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertook to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
By letter of 23 March 2010 the applicant's representative reiterated his position that there had been a breach of Article 11 in the present case. He did not make any comments on the Government's proposal.
The Court notes that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court to strike a case out of its list in particular if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
Article 37 § 1 in fine includes the proviso that:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court also notes that under certain circumstances, it may strike out an application, or part thereof, under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. To this end, the Court will examine the declaration carefully in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI, and Melnic v. Moldova, no. 6923/03, §§ 22-25, 14 November 2006).
Having regard to the nature of the admissions contained in the Government's unilateral declaration and to the amount of compensation proposed by the Government, which is consistent with the amounts awarded in similar cases (see Roşca and Others v. Moldova, nos. 25230/02, 25203/02, 27642/02, 25234/02 and 25235/02, § 49, 27 March 2008; Russu v. Moldova, no. 7413/05, § 32, 13 November 2008), the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)) (see, for the relevant principles, Tahsin Acar, cited above, and Meriakri v. Moldova ((striking out), no. 53487/99, 1 March 2005)).
The Court notes that it has specified in a number of cases the nature and extent of the obligations which arise for the respondent State as regards the freedom of assembly (see, amongst many others, Christian Democratic People's Party v. Moldova (no. 2), no. 25196/04, 2 February 2010 and Hyde Park and Others v. Moldova, no. 33482/06, 31 March 2009).
In the light of all the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
Accordingly it should be struck out of the list.
In so far as the applicant's complaint under Article 10 of the Convention is concerned, the Court considers that it does not raise separate issues from those raised under Article 11 (see Christian Democratic People's Party v. Moldova, no. 28793/02, § 79, ECHR 2006‑II).
As to the complaints under Articles 6 and 13, the Court recalls that the Convention does not guarantee a right to secure the prosecution and conviction of a third party (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004‑I). Accordingly, these complains are incompatible ratione materiae with the provisions of the Convention and must be rejected under Article 35 §§ 3 and 4.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government's declaration in respect of the complaint under Article 11 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it relates to the above complaint;
Decides that it is not necessary to examine separately the complaint under Article 10 of the Convention;
Declares the remainder of the application inadmissible.
Fatoş AracıNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy