ZILIBERBERG v. MOLDOVA

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 61821/00
by Cristian ZILIBERBERG
against Moldova

The European Court of Human Rights (Fourth Section), sitting on 4 May 2004 as a Chamber composed of:

SirNicolas Bratza, President,
MrM. Pellonpää,
MrsV. Strážnická,
MrJ. Casadevall,
MrS. Pavlovschi,
MrJ. Borrego Borrego,
MrsE. Fura-Sandström, judges,

and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged on 10 August 2000,

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 FACTS

The applicant, Mr Cristian Ziliberberg, is a Moldovan national who was born in 1980 and lives in Chişinău. He was represented before the Court by Mr Serghei Ostaf, a lawyer from the Helsinki Committee of Human Rights.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is a student. On 18 April 2000, between 9.30 a.m. and 12.30 p.m., the applicant attended a demonstration against the decision of the Municipal Council to abolish urban transport privileges for students. The demonstration was not authorised in accordance with the law, and as appears from the statements of the parties, its organisers did not even apply for authorisation. The demonstration took place on the Great National Assembly Square in Chişinău. In the beginning it was peaceful, but later some of the demonstrators started to throw eggs and stones at the Municipality building and the police intervened.

Around 12.30 p.m. the applicant was arrested by the police on grounds of being an active participant in an unauthorised demonstration in breach of Article 174/1 § 4 of the Code of Administrative Offences (hereinafter referred to as the “CAO”). He was brought to the precinct police station an hour later. Between 1.30 p.m. and 7.00 p.m., he was detained in the police station and interrogated by several investigators. According to the applicant's representative, the applicant was not informed of any reasons for his arrest apart from his participation in an unauthorised assembly.

In his written statement given at the police station, the applicant mentioned, inter alia, that he had been arrested by the police when he and a journalist from the National Radio approached a group of policemen beating up a student. Since he had written on his forehead the word “STUDENT”, the police arrested him. He stated that he was an active participant but that he was not involved in violence.

On an unspecified date, the district police completed the administrative case file in connection with the offence committed by the applicant, mentioning inter alia that he had actively participated in an unauthorised meeting that had taken place in front of the building of the Municipal Council. The case was then referred to the competent district court.

Following an oral hearing on 19 April 2000, the Centru District Court imposed on the applicant an administrative fine of 36 Moldovan Lei (MDL) (the equivalent of EUR 3) provided for in Article 174/1 § 4 of the CAO. In its order, the court stated, inter alia, that the applicant had actively participated in a demonstration of students, which had been carried out without an authorisation from the Municipal Council, and that he had pleaded guilty to the administrative offence as charged.

On 28 April 2000 the applicant lodged an appeal against the above order. He argued that the fine had been unlawfully imposed on him and that the sanction was contrary to the freedom of assembly and to the right to strike guaranteed by Articles 40 and 45 of the Constitution. The appeal was heard by the Chişinău Regional Court on 4 May 2000 at 10 a.m.

According to the Government the summons for the hearing was sent on 2 May 2000 by regular post and should have arrived at its destination on 3 May 2000.

According to the applicant, it was sent on 3 May 2000 and was received by him after 10 a.m. on 4 May 2000.

On 5 May 2000, the applicant appeared before the Registry of the Chişinău Regional Court to inquire about his case. He was issued with a copy of the decision of the Chişinău Regional Court of 4 May 2000 dismissing his appeal and upholding the order of the District Court of 19 April 2000.

On 10 May 2000 the applicant filed a request for annulment (contestaţie în anulare) with the Regional Court against its decision of 4 May 2000, arguing that he had not been properly summoned and consequently did not have a fair trial. The court refused to register the request on the ground that the CAO did not provide for such a remedy. On 18 May and 22 June 2000 respectively, the court rejected the repeated requests lodged by the applicant and his lawyer.

On 18 May 2000, the applicant accompanied by a lawyer of the Helsinki Committee of Human Rights and by an advocate made another attempt to file a request for annulment with the Registry of the Chişinău Regional Court but the Registry refused to register it.

On 12 June 2000, following the bailiff's request, the applicant paid the fine provided for in the decision of 19 April 2000.

On 20 July 2000 the applicant learned from the Registry of the Chişinău Regional Court that a reply to his last request for annulment had been sent to him by post. On 10 August 2000 the applicant and his lawyers requested the Registry of the Chişinău Regional Court to provide them with a copy of the reply because to that date the applicant had not received it by post.

B.  Relevant domestic law

The Constitution of the Republic of Moldova
Article 40

“Meetings, demonstrations, gatherings, processions and any other assemblies are unhampered and may be organised and take place solely in a peaceful manner without any kind of weapons.”

The Law of 21 June 1995 on the organisation and conduct of assemblies
Article 5

“Assemblies must be conducted peacefully, without any sort of weapons, 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.”

Article 11

“(1)  No 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 good 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.”

Article 12

“(2)  When the prior declaration is considered at an ordinary or extraordinary meeting of the Municipal Council, the discussion shall deal with form, timetable, place and other conditions for the conduct of the assembly and the decision taken shall be adjusted to the specific situation.”

The Code of Administrative Offences
Article 1

The Code of Administrative Offences aims at the protection of the personality, the rights and the legal interests of the physical and moral person, property, the State and public order, as well as at finding, preventing and eliminating the consequences of administrative offences and at educating citizens in the spirit of respect for the law.

Article 12

Only persons who were 16 years old at the moment of the commission of an administrative offence can be held responsible.

Article 22

The administrative sanction is a measure of responsibility and is applied in order to educate the person who committed an administrative offence, as well as to deter any future similar acts by the perpetrator himself or by others.

Article 26

In case of intentional non-payment of a fine, the court may commute the sanction to imprisonment of ten days for every MDL 18, the maximum term being thirty days.

Article 174/1

(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 36 and 90.

Article 254

The hearing regarding an administrative offence shall be conducted in the presence of the suspect. If the suspect is absent, the hearing can take place only when it is proved that he or she was timeously informed about the place and the time of the hearing and if he or she did not submit any request for adjournment.

Article 281

A decision of the first instance court regarding an administrative offence may be challenged before the hierarchically superior court, by an application lodged by the interested person or by the prosecutor.

Article 282/3

When the parties have been informed in due time about the date of the hearing but do not appear, the appeal may be heard in their absence....

Article 282/5

In examining a case regarding an administrative offence, the cassation instance may render one of the following decisions:

1)          to leave the challenged decision unchanged and to reject the cassation application;

2)          to quash the challenged decision and to order a re-examination by the first instance court;

3)          to quash the challenged decision and to send the file to the investigation organs;

4)          to quash the challenged decision and to stop the proceedings;

5)          to change the administrative sanction and to mitigate the sanction imposed.

Article 282/6

The cassation instance may quash the challenged decision for the following reasons: when the first instance court committed procedural mistakes or when it applied the wrong law. A decision which is correct on its merits cannot be quashed for procedural reasons, except in the following circumstances:

1)         The case was examined by a set of judges which was not composed in accordance with the law;

2)         The decision was not signed by the judge who examined the case or it was signed by a judge who did not participate at the trial of the case;

3)         The decision was not pronounced by the judge who examined the case;

4)         There were no minutes of the hearing, contrary to the law;

5)         The case was examined without an interpreter, contrary to the law.

Article 282/7

After examining the case, the cassation instance pronounces its decision. The decision does not have to contain any reasoning.

The Code of Criminal Procedure in force between 24 March 1961 and 12 June 2003
Article 128

The accused is called before the investigator by means of a summons. The summons is handed to the accused and the certificate confirming the date of the receipt is returned to the investigator. The summoning can also be done by telephone or by telegram.

The Code of Civil Procedure in force between 26 December 1964 and 12 June 2003
Article 101

The court informs the parties to the proceedings about the date and the place of the hearing by means of a summons....

The summons is handed to the parties in due time, so that they have enough time to prepare for the hearing in front of the court. In any event, the summons should be handed to the defendant at least three days ahead of the hearing.

COMPLAINTS

1.  The applicant complains, under Article 11 of the Convention, that his arrest and the imposed administrative fine violated his right to freedom of peaceful assembly. He submits that the interference did not have a legitimate purpose, but rather aimed at suppressing his freedom of assembly. He maintains that his participation in the demonstration did not pose any threat to public order. He claims that the relevant provisions (Article 174/1 § 4 of the Code of Administrative Offences and Articles 5, 11 and 12 § 2 of the Law on organisation and conduct of assemblies) provide for an excessive restriction contrary to the provisions of paragraph 2 of Article 11 of the Convention and are not necessary in a democratic society.

2.  The applicant further complains, under Article 6 § 1 of the Convention, that the proceedings were not fair because he was not duly summonsed to attend the hearing on 4 May 2000 and was thereby prevented from participating in the hearing.

3.  The applicant finally complains, under Article 13 of the Convention in conjunction with Articles 6 § 1 and 11 of the Convention, that he was deprived of an effective remedy in respect of his complaints about the breaches of his right to a fair hearing and his right to freedom of assembly because of the refusal of the Chişinău Regional Court to entertain his request for annulment and to decide on the merits of his case.

THE LAW

1.  The applicant complains under Article 6 § 1 of the Convention that the proceedings were not fair because he was not duly summoned to attend the hearing on 4 May 2000 and was thereby prevented from participating in the hearing. Article 6 § 1 of the Convention reads as follows:

“1.  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....”

Applicability of Article 6

The parties are in dispute as to the applicability of Article 6 to the complaints. The applicant contends that the charges against him can be considered “criminal” for the purposes of Article 6 and the Government consider that they are “administrative”. The Government emphasise the necessity of keeping administrative offences independent of the criminal justice system, and they consider that they have drawn the dividing line between disciplinary and criminal charges in a manner consistent with Article 6.

However, it is not disputed that the applicability of Article 6 falls to be assessed on the basis of the three criteria outlined in the Engel judgment (Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, §§ 82 and 83).

The parties agree that the offence in question is classified as an “administrative offence” and is provided for in the Code of Administrative Offences.

The Government submit that it is not of a criminal nature since it is punished with a sanction which has an “educational” and a “preventive” purpose.

They further argue that the sanction provided by the Code of Administrative Offences for the offence in question varies between MDL 36 and 90 and that the minimum fine was imposed on the applicant. According to the Government, the fine constituted approximately ten percent of the average monthly salary in Moldova at the material time.

The applicant submits that in the French legal system offences of this kind are part of the Criminal Code.

He claims to have been detained by the police for five and a half hours on 18 April 2000, during which time he was interrogated by criminal investigators.

He further argues that, besides fines, the Code of Administrative Offences provides for procedural measures such as detention, corporal search, search of property and administrative arrest. The “administrative contraventions” are tried by penal sections of the courts.

If a fine is not paid, the sanction can be commuted to an administrative arrest of ten days for every MDL 18. The applicant argues that if he had not had the means to pay the fine, he would have been imprisoned for twenty days.

The applicant states that his monthly stipend as a student was MDL 50-60, depending on his academic performance, and that therefore the fine imposed on him constituted more than a half of his monthly income.

Compliance with Article 6

The applicant complains that he was not properly summonsed for the hearing of his appeal on 4 May 2000 before the Chişinău Regional Court and that he could not therefore be present.

According to the applicant, who refers to the postmarks on the envelope, a copy of which he has sent to the Court, the summons was sent on 3 May 2000 and reached him after the hearing that took place on 4 May 2000 at 10 a.m.

The Government do not agree with the applicant. According to them, the summons was sent on 2 May 2000 and should have reached the applicant on 3 May. In this respect the Government sent the Court a copy of the correspondence register of the Chişinău Regional Court, according to which the summons was sent to the applicant on 2 May 2004. The Government considers the postmarks on the envelope to be illegible.

In the light of the parties' observations, the Court considers that this part of the application, including the question of the applicability of Article 6, 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.

2.  The applicant complains that his prosecution and conviction for participating in an unauthorised demonstration violated his 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.”

The Government submit that the demonstration was not peaceful but violent, claiming that some participants threw stones and eggs at the Municipality building causing it damage in the amount of USD 95,340. According to them, the applicant was involved in violent activities. In support of this submission the Government have adduced a report made by a policeman on 18 April 2000. However, this report was not present in the case file during the domestic proceedings and the domestic courts did not rely on it.

According to the applicant, however, and to the submissions of several witnesses put forward by him, he was not involved in any violence.

No issue of a ban or a refusal to grant authorisation was raised by the applicant either in front of the domestic courts, or before this Court.

In so far as any issue could be raised under Article 11, concerning the failure properly to notify the applicant of the hearing before the Chişinău Regional Court, the Court will examine it under Article 6.

As to the applicant's complaint about being prosecuted for his participation in an unauthorised assembly, it should be examined in the present decision.

The Court observes at the outset that the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society. Thus, it should not be interpreted restrictively (see G. v. the Federal Republic of Germany, no. 13079/87, Commission decision of 6 March 1989, DR 60, p. 256; Rassemblement jurassien v. Switzerland, no. 8191/78, p. 93, cited above; and Milan Rai, Gill Almond and “Negotiate Now” v. the United Kingdom, no. 25522/94, Commission decision of 6 April 1995, DR 81-A, p. 146). As such this right covers both private meetings and meetings in public thoroughfares as well as static meetings and public processions; in addition, it can be exercised by individuals and those organising the assembly (Rassemblement jurassien v. Switzerland, cited above, p. 119; and Christians Against Racism and Fascism v. the United Kingdom, no. 8440/78, Commission decision of 16 July 1980, DR 21, p. 138, p. 148).

The Government argue that Article 11 does not apply in the present case because the demonstration was not peaceful. The Court notes an individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behaviour (see the Ezelin v. France, Comm. Report 14.12.1989, § 34, Eur. Court H. R., Series B 192). Although the demonstration gradually became violent, there is no indication that the applicant was himself involved in violence or that he had any violent intentions. The report provided by the Government, which allegedly was drawn up by a policeman on 18 April 2000, and according to which the applicant was violent, cannot be admitted by the Court for the reason that it was not part of the case file before the domestic courts. Accordingly, the Court concludes that Article 11 is applicable in the present case.

The Court further notes that the applicant was convicted for his participation in the demonstration. The Court reiterates that the term “restrictions” in paragraph 2 of Article 11 cannot be interpreted as excluding measures – such as punitive measures – taken not before or during but after a meeting (Ezelin v. France, judgment of 26 April 1991, Series A no. 202, § 39). The Court considers that there has undoubtedly been an interference with the applicant's freedom of assembly, within the meaning of Article 11 of the Convention. Such interference gives rise to a breach of this provision unless it can be shown that it was “prescribed by law”, pursued one or more legitimate aims as defined in paragraph 2, and was “necessary in a democratic society”.

The Court notes that the relevant legal provision on which the domestic courts based their judgments was Article 174(1) § 4 of the Code of Administrative Offences. The applicant contends that the provision is not sufficiently precise as to make the legal consequences of his actions foreseeable, as required by the Court's case-law. He alleges, in particular, that the provision does not adequately define what “active participation” is.

The Court reiterates that whilst certainty in the law is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see, for example, Rekvényi v. Hungary [GC], no. 25390/94, § 34, ECHR 1999-III).

In the instant case the Court does not consider that the provision in question is so vague as to render the consequences of the applicant's actions unforeseeable. The “active participation” in a demonstration might take so many forms that it might prove impossible to make an exhaustive list within a legal provision. It is therefore the duty of the courts to decide in every particular case what is “active participation” and what is not. Accordingly, the Court considers that the interference was “prescribed by law”.

The applicant claimed that the sanction did not pursue a legitimate aim.

The Government, on the other hand, submitted that its purpose was the "prevention of disorder".

It is apparent that Mr Ziliberberg incurred a punishment provided for by the Code of Administrative Offences. Article 1 provides that the Code aims inter alia at the protection of public order. The interference was therefore in pursuit of a legitimate aim, the "prevention of disorder".

The Court recalls the Ezelin judgment where it stated that “the freedom to take part in a peaceful assembly – in this instance a demonstration that had not been prohibited – is of such importance that it cannot be restricted in any way... so long as the person concerned does not himself commit any reprehensible act on such an occasion” (see the Ezelin judgment cited above, § 53).

The present case resembles the Ezelin case in that there were no reprehensible acts committed by the applicant. At the same time it is distinguishable in that the demonstration in the present case was not authorised in accordance with the law, as it was in the Ezelin case. The applicant does not dispute that the organisers of the demonstration did not apply for an authorisation.

As such the right to freedom of assembly covers both private meetings and meetings in public thoroughfares. Where the latter are concerned, their subjection to an authorisation procedure does not normally encroach upon the essence of the right. Such a procedure is in keeping with the requirements of Article 11 § 1, if only in order that the authorities may be in a position to ensure the peaceful nature of a meeting, and accordingly does not as such constitute interference with the exercise of the right (Rassemblement jurassien v. Switzerland, no. 8191/78, Commission decision of 10 October 1978, DR 17, p. 119).

The Court notes that the applicant admitted having actively participated in the demonstration in his written statement given to the police and during the proceedings before the Centru District Court.

As noted above, the requirement to obtain authorisation for a demonstration is not incompatible with Article 11 of the Convention. The Court considers that since States have the right to require authorisation, they must be able to apply sanctions to those who participate in demonstrations that do not comply with the requirement. The impossibility to impose such sanctions would render illusory the power of the State to require authorisation. It appears that in the present case, the State imposed a sanction on the applicant strictly for his failure to comply with the prohibition on participation in unauthorised demonstrations.

The Court further notes that the penalty imposed on the applicant was at the lower end of the scale of penalties given in Article 174(1) § 4. It appears to be heavy relative to applicant's revenue; however, it does not appear to be disproportionate to the legitimate aim pursued.

Accordingly, the Court concludes that the complaint under Article 11 of the Convention is manifestly ill-founded.

3.  The applicant argues that he has not had an effective remedy before a national authority in respect of the breaches of Articles 6 § 1 and 11 of the Convention and alleged a violation of Article 13, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

As the Court has consistently held (see, among other authorities, Powell and Rayner v. the United Kingdom, judgment of 12 February 1990, Series A no. 172, pp. 14-15, § 33, and Abdurrahman Orak v. Turkey, no. 31889/96, § 97, 14 February 2002), Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. Its effect is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. Article 13 is therefore applicable only in respect of grievances which can be regarded as arguable in terms of the Convention.

The Court has found above that the applicant's complaint under Article 11 is manifestly ill-founded as there is no appearance of a violation of that Article. For this reason the Court holds that the applicant did not have an arguable claim in respect of his right to assembly for the purposes of Article 13, which is therefore inapplicable to this case.

Having regard to its decision on Article 6 § 1, the Court considers that it is not necessary to examine the case under Article 13; this is because its requirements are less strict than, and are here absorbed by, those of Article 6 § 1 (see the Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, § 88).

It follows that the complaint under Article 13 of the Convention must be rejected in accordance with Article 35 §§3 and 4 of the Convention.

For these reasons, the Court

Declares, unanimously, admissible, without prejudging the merits, the applicant's complaint concerning Article 6, including the question of the applicability of that Article;

Declares, by a majority, the remainder of the application inadmissible.

Michael O'BoyleNicolas Bratza
RegistrarPresident

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