PETRENCO proti Moldavsku

SECOND SECTION

DECISION

Application no. 12781/16
Grigore PETRENCO
against the Republic of Moldova

The European Court of Human Rights (Second Section), sitting on 11 January 2022 as a Committee composed of:

Egidijus Kūris, President,
Pauliine Koskelo,
Gilberto Felici, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above application lodged on 12 February 2016,

Having regard to the formal declarations accepting a friendly settlement of the case,

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

1. The applicant, Mr Grigore Petrenco, is a Moldovan national, who was born in 1980 and lives in Baden-Baden, in Germany. He was represented before the Court by Mr V. Vieru, a lawyer practising in Chișinău.

2. The Moldovan Government (“the Government”) were represented by their Agent, Mr O. Rotari.

1. The circumstances of the case

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

4. The applicant was the leader of an extra‑parliamentary opposition party at the time, “Casa noastră - Moldova” (Our home – Moldova) which in May 2015 decided to change its name into “Blocul roșu” (the Red block). On 20 July 2015, the applicant and two members of his political party held a press conference entitled “press conference of the party Casa noastră – Moldova (the Red Block)” in which they announced the intention to organise actions of protest against the increase of prices of electric energy and gas. They stated, inter alia, that the intention was not to make a one party event and invited others to join the protest.

5. On 22, 23 and 24 July 2015 the applicant, together with a group of members and supporters of his party, organised manifestations in Chișinău. On the latter date, the protesters first held a demonstration in front of the agency responsible for the regulation in the field of energetics and thereafter in front of a hotel belonging to Mr V. Plahotniuc, the leader of the main governing party at the relevant time. On the same day, at 8 p.m., the group of protesters led by the applicant changed the location of the protest in front of a block of flats in the centre of Chișinău where Mr V. Plahotniuc lived. In his address to the crowd, the applicant announced that the intention was to set up a camp of tents near the block of flats and not to let Mr Plahotniuc sleep and feel comfortable while the Moldovan people was struggling with the high prices for energy and gas.

6. After a confrontation with the police and a group of supporters of Mr V. Plahotniuc, the protesters were successful in setting up a tent camp. The protest continued day and night for seven days. During the day hours music was played through loudspeakers and different persons held speeches in front of the crowd.

7. On 27 July 2015 the Mayor of Chișinău lodged a court action against the applicant’s political party seeking the dispersal of the protest. He submitted in his application that approximately sixty persons participated at the protest which had not been duly notified to the local authorities as required by the law. The protest took place near a block of flats and created serious disturbance to its inhabitants. During one night only the police received five calls from the inhabitants complaining about the noise coming from the tents. Moreover, the camp of tents was not provided with toilets, a fact which created a sanitary hazard in the neighbourhood.

8. During the court proceedings the applicant submitted that the protest was not being organised by his political party but by a group of individuals and that the tents belonged to individuals and not to the political party. The political party’s lawyers also submitted that the party was not behind the protests because none of its leaders had expressly stated that the party had organised the protest. Also, no party flags or symbols were present at the tent camp.

9. In a judgment of 29 July 2015 the Buiucani District Court found that the protests organised between 22 and 24 July 2015 had been spontaneous in their nature and that, therefore, the requirement of the simplified manner of notification to the authorities, as provided by section 10 of the Law on public gatherings, was applicable. At the same time, the court noted that the organisers of the protest had set up tents and that, according to section 12 of the same law, a special notification for that purpose had to be filed with local authorities at least one day prior to the event. The court found that the organisers of the protest did not comply with any of the above obligations provided for by the law.

10. The court also found that the participants’ right to freedom of assembly had to be balanced against the right of other persons to respect for their private life. In particular, the rights of the inhabitants of the block of flats in front of which the non-stop protest was being held not to be disturbed. In this respect, the court noted that the inhabitants had called the police on numerous occasions to complain about the noise coming from the camp of tents during the night.

11. Finally, the court noted that the organisers of the protest did not provide the camp of tents with sanitary facilities which created a problem for the public health. The court therefore ordered the dispersal of the non-stop protest in front of the block of flats and the removal of the tents.

12. The applicant’s political party appealed against the above judgment and submitted that it had not organised the protest. It also argued that the authorities had no evidence which would reveal the identity of the organisers and the number of participants. Similarly, they had no evidence concerning the identity of the persons who had installed the tents.

13. The applicant participated at the hearing before the Chișinău Court of Appeal and argued that it was not the political party that had organised the protest but many individuals, including himself. He argued that no loudspeakers were used between 10 p.m. and 8 a.m. and no roads were blocked. The representative of the Mayor’s Office responded to the above arguments that during the first days of protest the protesters waved party flags.

14. On 31 July 2015 the Chișinău Court of Appeal dismissed the party’s appeal and upheld the judgment of the first instance court. On the same day, in the evening, the police removed the tents and dispersed the protest.

15. On 12 August 2015 the Supreme Court of Justice dismissed the appeal on points of law lodged by the applicant’s political party and upheld the judgments of the lower courts.

2. Relevant domestic law

16. Under section 10 of the Law on Public Gatherings of 22 February 2008 a public gathering must be notified in writing to the local administration five days in advance. The notification shall contain the identity of the organiser, the aim of the gathering, the time and place of the gathering and the approximate number of participants. Section 12 of the same law stipulates that the provisions concerning the written form, the five days’ time-limit and the approximate number of participants shall not apply to spontaneous demonstrations. The same section provides that no prior notification is necessary in the case of gatherings with a small number of participants. However, if the organisers request any kind of services from the local administration or intend to erect temporary constructions, they must lodge a written notification one day in advance.

17. According to section 14 (4) of the same law, if the local administration considers that a public gathering is going to be in breach of the law, it can apply to a court and seek its dispersal. An application to a court shall not suspend the public gathering concerned and the court seized with it shall examine it within three days.

18. According to section 21 of the same law, the failure to file a prior notification with the local authorities is not in itself a reason to put an end to the gathering.

COMPLAINTS

19. The applicant complains that the decision to put an end to the protest in front of the block of flats in where Mr Plahotniuc lived and to remove the camp of tents installed by the protesters amounted to a breach of his right to freedom of assembly guaranteed by Article 11 of the Convention.

20. The applicant also complains under Article 6 of the Convention that the proceedings leading to the dispersal of the protest and the removal of the camp of tents were not fair because the court decisions were not sufficiently motivated, the courts did not give answers to all the arguments adduced by the defendant and failed to hear witnesses.

THE LAW

21. The applicant submitted that the removal of the camp of tents and of the dispersal of the protest in front of Mr Plahotniuc’s home amounted to a breach of his rights under Article 11 of the Convention, which reads as follows:

“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.”

22. The Government argued that the organisers of the impugned protest had failed to submit a prior notification to the local authorities, as required by section 12 of the Law on Public Gatherings, and that their actions had disturbed the peace of the inhabitants of the nearby block of flats who had called the police many times during the night to complain about the noise. The Government submitted copies of several handwritten complaints lodged with the police by inhabitants of the block of flats in which they complained about the disturbance created by the protesters in the tents. In particular, all the persons concerned complained about the loud music and noise and argued that they could not open windows or rest because of the noise coming from the tents. One of them also complained about smell of human waste.

23. The applicant submitted that the interference with his right to freedom of assembly was not in pursuit of a legitimate aim and that it was not necessary in a democratic society. In particular, the applicant argued that the authorities had not relied on any evidence to prove that the protesters created disturbance or insalubrity. The protest took place on a public parking and not on private premises and no noise was made during the night.

24. The Court reiterates that the freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of its foundations (see Shmorgunov and Others v. Ukraine, nos. 15367/14 and 13 others, § 490, 21 January 2021). The Court has previously considered that notification, and even authorisation, procedures for a public event do not normally encroach upon the essence of the right under Article 11 of the Convention as long as the purpose of the procedure is to allow the authorities to take reasonable and appropriate measures in order to guarantee the smooth conduct of any assembly, meeting or other gathering (see Sergey Kuznetsov, cited above, § 42, and Rai and Evans v. the United Kingdom (dec.), nos. 26258/07 and 26255/07, 17 November 2009). Organisers of public gatherings should respect the rules governing that process by complying with the regulations in force.

25. While rules governing public assemblies, such as the system of prior notification, are essential for the smooth conduct of public events since they allow the authorities to minimise the disruption to traffic and take other safety measures, the Court emphasises that their enforcement cannot become an end in itself. In particular, where irregular demonstrators do not engage in acts of violence the Court has required that the public authorities show a certain degree of tolerance towards peaceful gatherings (see Berladir and Others v. Russia, no. 34202/06, § 38, 10 July 2012 and Bukta and Others v. Hungary, no. 25691/04, § 37, ECHR 2007-III).

26. Consequently, the absence of prior authorisation and the ensuing “unlawfulness” of the action do not give carte blanche to the authorities; they are still restricted by the proportionality requirement of Article 11.

27. Turning to the facts of the present case, the Court notes that it is undisputed that the interference with the applicant’s right to freedom of assembly was prescribed by law. The Court is ready to accept the Government’s submission that the interference in question pursued the legitimate aim of protecting the rights of others.

28. The Court notes that in their judgments the domestic courts held against the organisers of the protest given the fact that they had failed to comply with the notification procedure. However, the main argument retained by the courts was that the protest was held day and night in the immediate vicinity of a block of flats causing disturbance to its inhabitants and the sanitary hazard created the absence of sanitary facilities at the tent camp.

29. The Court notes from the outset that in the very beginning of the non‑stop protest in front of the block of flats, the applicant announced to the crowd that the plan was, inter alia, not to let Mr Plahotniuc sleep and feel comfortable. It was inevitable that such a plan would affect not only Mr Plahotniuc but also his neighbours and that they would complain to the police about the disturbance caused by the protest. Even though the case-file contains copies of numerous complaints lodged by the inhabitants of the block of flat with the police, the applicant expressed the view that no disturbance was caused. However, the Court considers that the holding of a non-stop protest under the windows of a block of flats would inevitably cause serious disturbance to its inhabitants.

30. The Court further notes that the protest was disbanded by the police in the evening of 31 July 2015, with the result that the demonstrators had had one week at their disposal to protest and manifest their views in front of Mr Plahotniuc’s home. In such circumstances, the Court finds that the interference with the applicant’s freedom of assembly does not appear to have been unreasonable. It is satisfied that the authorities showed the necessary tolerance towards the protest, although they had had no prior knowledge of the event.

31. Having regard to the foregoing considerations, the Court finds that the dispersal of the applicant’s protest and the removal of the tents were necessary in a democratic society and cannot be regarded as having been a disproportionate measure in order to achieve the legitimate aim pursued. Therefore, the Court rejects the complaint as being manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention.

32. The applicant complained that the proceedings before the domestic courts, as a result of which the dispersal of the protest was ordered, were not fair withing the meaning of Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

33. The applicant submitted that the proceedings were not fair because the domestic courts did not duly motivate their judgments, failed to give answers to all his arguments and refused to hear witnesses.

34. Having examined the domestic court judgments, the Court observes that they are duly motivated. Moreover, the applicant failed to explain which of his arguments were left unanswered by the courts and which witnesses they refused to hear. Nor did he explain the relevance of the evidence to be provided by those witnesses. In such circumstances, the Court considers this complaint to be manifestly ill-founded and rejects it in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 3 February 2022.

Hasan Bakırcı Egidijus Kūris
Deputy Registrar President