I correctly predicted that there was a violation of human rights in PETRENCO v. THE REPUBLIC OF MOLDOVA and 6 other applications.

Judgment

SECOND SECTION
CASE OF PETRENCO AND OTHERS v. THE REPUBLIC OF MOLDOVA
(Applications nos. 6345/16, 52055/16, 52063/16, 52133/16, 52171/16, 52179/16 and 52189/16)

JUDGMENT
Art 5 § 1 • Unlawful detention • Accusations of participation in mass disorders not based on “reasonable suspicion”
Art 11 • Freedom of peaceful assembly • Unlawful imposition of prohibition on participating in public gatherings

STRASBOURG
14 September 2021

FINAL

14/12/2021

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Petrenco and Others v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Jon Fridrik Kjølbro, President, Carlo Ranzoni, Aleš Pejchal, Valeriu Griţco, Branko Lubarda, Marko Bošnjak, Saadet Yüksel, judges,and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the applications (nos. 6345/16, 52055/16, 52063/16, 52133/16, 52171/16, 52179/16 and 52189/16) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Moldovan nationals, Mr Grigore Petrenco, Alexandr Roșco, Mihail Amerberg, Oleg Buznea, Pavel Grigorciuc, Andrei Druzi and Vladimir Jurat (“the applicants”), on 28 January 2016, 27 August 2016, 27 August 2016, 27 August 2016, 27 August 2016, 27 August 2016 and 27 August 2016 respectively;
the decision to give notice of the applications to the Moldovan Government (“the Government”);
the parties’ observations;
Having deliberated in private on 24 August 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the applicants’ arrest and detention following a demonstration on criminal charges of participation in mass disorders and the imposition on them of a prohibition on participating in public gatherings after their release from pre-trial detention for some three years. THE FACTS
2. The applicants were born in 1980, 1986, 1986, 1990, 1989, 1974 and 1988 respectively and live in Chișinău, except for the first, fifth and sixth, who live in Baden-Baden, Cahul and Mereni respectively. The applicants were represented by Mr V. Vieru and Ms N. Hriplivîi, lawyers practising in Chișinău. 3. The Government were represented by their Agent, Mr O. Rotari. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicants are members and sympathisers of an extra‐parliamentary opposition party, “Casa noastră - Moldova” (Our home – Moldova) led by the first applicant, who at the time was also a member of the Moldovan delegation to the Parliamentary Assembly of the Council of Europe. 6. On Sunday 6 September 2015 another opposition political party organised a large anti-government rally in the central square of Chișinău in which the applicants and other sympathisers of their party participated. One of the resolutions of the rally was the demand for the immediate dismissal of the Prosecutor General, who was accused of being politically subordinated to Mr Vladimir Plahotniuc, the leader of the main governing party at the time. Immediately after that, a large group of persons led by the applicants marched towards the headquarters of the Prosecutor General’s Office to demand his resignation. 7. At approximately 2.15 p.m. the group approached the building of the Prosecutor General’s Office. In a video of the event which is part of the case‐file one can see several members of the group wearing black t-shirts with the inscription ПЛХ-ПНХ (the abbreviation in Russian of the words meaning “Fuck you Plahotniuc”) rushing on the steps of the building towards its entrance. The fifth applicant can be seen approaching one of the entrance doors and sitting right next to it while leaning against the door. Several police officers immediately lift him up and push him away from the entrance. Many more members of the group climb the steps and rush towards the entrance doors, being stopped and pushed back by police officers. In a matter of two-three minutes the demonstrators are pushed away from the entrance doors towards the lower part of the steps by a group of policemen outnumbering them. No violence is seen on the video footage apart from the pushing of the demonstrators by the police officers away from the entrance of the building and the former shouting different slogans such as “Rușine” (meaning “Shame on you”), “Plahotniuc la dubă” (meaning “Plahotniuc in prison”) and “Jos mafia” (“Down with the mafia”), whistling and drum beating. The police officers present in great numbers form a line in front of the demonstrators preventing them from climbing the steps toward the entrance of the building. The majority of the demonstrators stay on the pavement, the lawn and the road in front of the building, only several dozen being on the lower part of the steps. 8. After being pushed to the lower part of the stairs, at approximately 2.18 p.m. a group of approximately 15-20 demonstrators, including the applicants, sit on the steps at the feet of the police cordon and announce that they intend to instal tents and stay there until the resignation of the Prosecutor General. Later they stand up. 9. At approximately 2.23 p.m. a special forces unit wearing helmets and special anti-riot gear approach the demonstration. At 2.27 p.m. several demonstrators start installing tents on the pavement in front of the building. At 2.28 p.m. the police demand the demonstrators to vacate the premises and warn them that they will be removed by force in case of non-compliance. Since the demonstrators refuse to comply, at 2.29 p.m. the police forces start pushing them further away from the entrance of the building. One of the demonstrators wearing a black t-shirt is seen being arrested by two police officers behind the police cordon. Having been pushed to the pavement, the demonstrators again sit down at approximately 2.31 p.m., this time on the pavement. 10. Another video included in the case-file starts at 4.01 p.m. In it one can see many demonstrators scattered on the pavement, lawn and road in front of the Prosecutor General Office’s building. The steps of the building are occupied by the police and approximately ten tents are installed on the sidewalk in front of the steps. A group of demonstrators including some of the applicants are seen seated on the lower part of the steps and the first applicant shouts through a megaphone that this is a peaceful demonstration and that they have the constitutional right to peacefully protest. At 4.20 p.m. a representative of the Mayor’s Office approaches the persons sitting on the pavement and tells them that they are breaking the law by occupying the pavement and gives them five minutes to vacate it. The protesters retort that the pavement is public property and that they have the right to hold a peaceful protest on it. At 4.42 p.m. members of the special forces and the police start taking away the tents from the pavement. In spite of some protesters’ attempts to retain the tents, within two minutes all tents are taken away by the police. At 4.47 p.m. all the demonstrators are pushed away from both the steps, the pavement and the lawn in front of the building. At approximately 5 p.m. the demonstration came to an end. 11. All the applicants were arrested at approximately 4.39 p.m. and were taken to a police station. They were placed in detention for a period of seventy-two hours on suspicion of having committed the offence of participating in mass disorders provided for by Article 285 of the Criminal Code (see paragraph 22 below). On 8 September 2015 the applicants were formally charged with the offence of participating in mass disorders and the Rîşcani District Court ordered their remand in custody for a period of thirty days. The court decision ordering the applicants’ remand in custody stated that there was evidence and witness statements confirming the applicants’ active involvement in violence against the police, however without indicating which evidence and which witness statements. In their appeal the applicants argued that the criminal prosecution and their detention were politically motivated and that there was not one single piece of evidence confirming the alleged violence against the police during the demonstration of 6 September 2015. They also indicated that there were no medical documents supporting the accusation about violence against the police. The Court of Appeal dismissed the applicants’ appeal and their detention was later prolonged several times until 22 February 2016, when the Rîşcani District Court ordered their house arrest as a result of the involvement of numerous members of the Council of Europe’s Parliamentary Assembly. While under house arrest, the applicants were obliged to wear electronic bracelets. 12. The fourth applicant’s house arrest was changed to provisional release under judicial control on 4 April 2016. 13. The other applicants were also released under judicial control on 26 April 2016. On the same date the court ordered as one of many surety measures in respect of them the prohibition on participating in public gatherings, if there was a risk of the gathering degenerating into mass disorders. That measure was prolonged on many occasions by the Rîşcani District Court and all the applicants’ appeals against it were dismissed by the Court of Appeal by 12 March 2019. 14. On 28 June 2017 the Rîşcani District Court found the applicants guilty as charged and sentenced them to suspended sentences of three and four years’ imprisonment. 15. On 29 September 2017 the first applicant, who was in Germany, applied for asylum in that country. On 16 October 2017 the German authorities granted him refugee status on the grounds that in Moldova he was prosecuted for political reasons. 16. On 12 March 2019 a panel of three judges of the Chișinău Court of Appeal dismissed the applicants’ appeals against the judgment of 28 June 2017. One of the members of the panel, Judge S.B., made a dissenting opinion in which she stated inter alia that after having viewed the video footage included the case-file and having examined the other materials of the case she did not find any evidence of violence against the police during the demonstration of 6 September 2015. She saw a peaceful gathering of persons protesting against the Government and expressing their discontent with the policy of the Government. The event having taken place on a Sunday, it had not even hindered in any way the work of the Prosecutor General’s Office. Therefore, she expressed the opinion that the applicants should have been acquitted. 17. In June 2019, following a week of tensions between the authorities and the opposition, a peaceful overthrow of the Government took place in Moldova and the former leader of the ruling political party, Mr V. Plahotniuc, fled the country. 18. On 11 February 2020 the Supreme Court of Justice upheld the applicants’ appeal against the judgment of the Court of Appeal of 12 March 2019. It found inter alia that the applicants’ conviction had been based exclusively on the interpretation and description of the facts made by the prosecution without any attention having been paid to the position of the applicants and to the materials of the case-file. Therefore, the Supreme Court quashed the inferior court’s judgment and sent the case back to the Court of Appeal for a fresh examination. 19. On 20 July 2020, the Court of Appeal upheld the applicants’ appeal against the judgment of 28 July 2017, quashed it and sent the case for a fresh examination by the Rîşcani District Court. 20. The criminal case against the applicants is pending before the first instance court to date. RELEVANT LEGAL FRAMEWORK
21. Article 40 of the Constitution of the Republic of Moldova (on freedom of assembly) provides:
“All meetings, demonstrations, rallies, processions or any other assemblies are free, but they may be organised and take place only peacefully and without the use of weapons.”
22. Article 285 of the Criminal Code of the Republic of Moldova entitled “Mass disorders”, as in force at the material time, read as follows:
(1) Organizing or leading mass disorders involving violence against persons, pogroms, arson, damage to goods, the use of firearms or other objects used as weapons, and violent or armed resistance to representatives of authorities shall be punished by imprisonment for 4 to 8 years. (2) Active participation in the commission of actions set forth in paragraph (1) shall be punished by imprisonment for 3 to 7 years. (3) Calls for active, violent insubordination to the legitimate requests of the authorities’ representatives, and for participation in mass disorders and for the commission of acts of violence against persons shall be punished by a fine in the amount of 200 to 500 conventional units or by community service for 180 to 240 hours or by imprisonment for up to 2 years. 23. Article 191 of the Code of Criminal Procedure entitled “Provisional release under judicial control”, as in force at the material time, read as follows:
(1) The provisional release under judicial control of a person under preventive arrest, of a detainee or of a person in whose case an arrest request was filed, may be granted by the investigative judge or, as the case may be, the court and shall imply one or several of the obligations set forth in para. (3). (2) Provisional release under judicial control shall not be granted to a suspect/accused/defendant if he/she has convictions which remain in the criminal record for serious, especially serious or exceptionally serious crimes or if there are indications that he/she will commit another crime, will try to influence witnesses, will destroy sources of evidence or will evade justice. (3) The provisional release under judicial control of an arrestee shall imply one or several obligations as follow:
1) not to leave the place of his/her domicile other than under the conditions set by the investigative judge or, as the case may be, by the court;
2) to notify the criminal investigative body or, as the case may be, the court about any change of domicile;
3) not to appear in specifically determined places;
4) to appear whenever summoned by the criminal investigative body or, as the case may be, by the court;
5) not to contact specific persons;
6) not to commit any actions preventing the finding of the truth in criminal proceedings;
7) not to drive vehicles or not to practise a profession used by him/her in the commission of the crime;
8) to leave his/her passport with the investigating judge or the court. (4) The police in the territorial jurisdiction in which a suspect/accused/defendant temporarily released lives shall exert control over him/her meeting the obligations set by the court. (5) Judicial control over a temporarily released person may be cancelled, wholly or partially, for justifiable reasons and in the manner set for this measure. THE LAW
24. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. 25. The applicants complained under Article 5 § 1 of the Convention that their deprivation of liberty had not been based on a reasonable suspicion that they had committed an offence and that it was arbitrary and unlawful. Article 5 § 1 reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...”
26. They also complained that the courts ordering their detention and house arrest had not relied on relevant and sufficient grounds, and had not motivated properly their decisions as required by Article 5 §§ 3 and 4 of the Convention, which reads as follows:
“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
27. The Court notes that these complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible. 28. The applicants argued that the accusations against them had been invented and that there was no evidence to support the allegations that they had conducted a violent demonstration. 29. The Government disagreed and argued that the applicants’ remand in custody and house arrest had been lawful, based on a reasonable suspicion that they had committed an offence and necessary in view of the risks of absconding and hindering the investigation. 30. Article 5 of the Convention is, together with Articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of the individual, and as such its importance is paramount. Its key purpose is to prevent arbitrary or unjustified deprivations of liberty. Three strands of reasoning in particular may be identified as running through the Court’s case‐law: the exhaustive nature of the exceptions, which must be interpreted strictly, and which do not allow for the broad range of justifications under other provisions (Articles 8 to 11 of the Convention in particular); the repeated emphasis on the lawfulness of the detention, both procedural and substantive, requiring scrupulous adherence to the rule of law; and the importance of the promptness or speediness of the requisite judicial controls (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 84, ECHR 2016 (extracts), with further references). 31. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see, among many other authorities S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 74, 22 October 2018). 32. According to the Court’s case-law, house arrest is considered, in view of its degree and intensity, to amount to deprivation of liberty within the meaning of Article 5 of the Convention (Buzadji, cited above, § 104). 33. Turning to the facts of the present case, the Court considers that the applicants’ detention fell within the ambit of Article 5 § 1 (c) of the Convention, as it was imposed for the purpose of bringing them before the competent legal authority on suspicion of having committed an offence. 34. The Court notes next that the applicants were arrested and charged with the offence of participating in mass disorders, an offence which according to the text of Article 285 of the Criminal Code is described as consisting of engaging in “violence against persons, pogroms, arson, damage to goods, the use of firearms or other objects used as weapons, and violent or armed resistance to representatives of authorities” (see paragraph 22 above). 35. Having examined the videos of the demonstration of 6 September 2015 included in the case-file (see their detailed description in paragraphs 7‐10 above), the Court notes that the accusations concerning the applicants’ violent behaviour are wholly inconsistent with the footage contained in those videos. According to the video footage in question, the authenticity of which was not contested by the Government, the demonstration in general and the applicants in particular were peaceful at all times. It is true that the police used force to push the protesters away from the entrance of the building, but the latter did not present any violent or armed resistance and let themselves be moved away from the entrance of the building in a matter of 2-3 minutes (see paragraphs 7 and 8 above). 36. The Court notes that judge S.B. from the Court of Appeal also expressed the view that the demonstration had been peaceful in her dissenting opinion (see paragraph 16 above). It also notes the finding of the Supreme Court of Justice in its judgment of 11 February 2020 to the effect that in convicting the applicants, the lower courts relied exclusively on the presentation of the facts made by the prosecution and that they had not paid attention to the materials of the case (see paragraph 18 above). 37. In such circumstances, the Court cannot but find that the accusation of participating in mass disorders against the applicants was not based on a “reasonable suspicion” and therefore cannot be considered “lawful” and devoid of arbitrariness within the meaning of Article 5 § 1 of the Convention (see Brega v. Moldova, no. 52100/08, § 38, 20 April 2010). There has, accordingly, been a violation of Article 5 § 1 of the Convention. 38. In the light of the above, the Court does not consider it necessary to examine separately the complaints under Article 5 §§ 3 and 4 of the Convention. 39. All the applicants but the first one complained that the prohibition on participating in public gatherings applied to them on 26 April 2016 as a measure of surety amounted to a breach of their right to freedom of assembly as guaranteed by 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.”
40. The Court notes that the impugned measure was not applied to the fourth applicant – Mr Oleg Buznea. Therefore, the Court is satisfied that this applicant cannot claim to be a victim for the purposes of Article 34. It follows that this part of the application in respect of him is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention. 41. At the same time, the Court notes that the complaint in respect of the other applicants, except for the first one, is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 42. The applicants argued that the measure imposed on them on 26 April 2016 and prolonged until 12 March 2019 was not provided for by law and, therefore, was in breach of the Article 11 of the Convention. 43. The Government did not make any submissions in respect of the merits of this complaint. 44. It is undisputed between the parties, and the Court agrees, that the prohibition imposed on the applicants on participating in public gatherings amounted to an “interference by [a] public authority” with the applicants’ right to freedom of assembly under the first paragraph of Article 11. Such interference will entail a violation of Article 11 unless it is “prescribed by law”, has an aim or aims that are legitimate under paragraph 2 of that Article and is “necessary in a democratic society” to achieve such aim or aims. 45. In so far as the lawfulness of the above interference is concerned, no elements in the present case allow the Court to consider that there was a legal basis for limiting the applicants’ right to freedom of assembly. Indeed, Article 191 of the Code of Criminal Procedure (see paragraph 23 above) does not provide for such a surety measure and the Government did not indicate to any other domestic legal provisions which would allow such a measure being imposed on a person released pending trial. This being so, the Court concludes that the interference in question was not lawful under domestic law. This conclusion makes it unnecessary to examine whether the interference pursued a legitimate aim and whether it was necessary in a democratic society. 46. Accordingly, there has been a violation of Article 11 of the Convention. 47. The first applicant complained under Article 3 of the Convention about the poor conditions of his detention and under Article 13 of the Convention that he did not have effective remedies against the poor conditions of detention. 48. The Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had the opportunity to put matters right through their own legal system (see Balan v. Moldova (dec.), no. 44746/08, 24 January 2012). 49. The Court recalls that recently the Moldovan authorities created a new compensatory remedy against poor conditions of detention instituted by Law No. 163 of 20 July 2017, a remedy which the Court considered effective in Draniceru v. the Republic of Moldova, ((dec.), no. 31975/15, § 41, 12 February 2019). Since the first applicant failed to exhaust that remedy, his complaint under Article 3 of the Convention must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. At the same time, his complaint under Article 13 taken together with Article 3 must be declared inadmissible for being manifestly ill-founded pursuant to Article 35 §§ 3(a) and 4 of the Convention (see Talambuța v. the Republic of Moldova, (dec.), no. 23151/09, §§ 23‐24, 19 March 2019). 50. All but the first applicant also complained under Article 8 of the Convention that during their house arrest they were obliged to wear electronic bracelets. All but the first and the fourth applicants also complained under Article 13 that they did not have an effective remedy against the breach of their right under Article 11 of the Convention. However, having regard to the facts of the case, the submissions of the parties and its findings under Articles 5 and 11 of the Convention, the Court considers that it has examined the main legal questions raised in the present applications, and that it is not necessary to examine either the admissibility or the merits of the complaints under Article 8 and Article 13 taken together with Article 11 of the Convention (see Kaos‐GL v. Turkey, 450 no. 4982/07, § 65, 22 November 2016; Ghiulfer Predescu v. Romania, 451 no. 29751/09, § 67, 27 June 2017; Political Party “Patria” and Others v. the Republic of Moldova, nos. 5113/15 and 14 others, § 41, 4 August 2020). 51. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
52. The applicants claimed 15,000 euros (EUR) each in respect of non‐pecuniary damage. 53. The Government contested the amounts of non-pecuniary damage claimed by the applicants, alleging that they were excessive. 54. The Court considers that the applicants must have suffered stress and frustration as a result of the violations found and awards EUR 7,500 to the first applicant, EUR 7,500 to the fourth applicant and EUR 9,750 to each of other applicants in respect of non-pecuniary damage. 55. The applicants also claimed EUR 8,760 in respect of the costs and expenses incurred before the Court. 56. The Government considered this amount excessive. 57. Regard being had to the documents in its possession, the Court considers it reasonable to award EUR 4,000 jointly in respect of costs and expenses. 58. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to Mr Petrenco;
(ii) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to Mr Buznea;
(iii) EUR 9,750 (nine thousand seven hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to each of the other applicants;
(iv) EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicants jointly, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 14 September 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı, Jon Fridrik KjølbroDeputy Registrar President

SECOND SECTION
CASE OF PETRENCO AND OTHERS v. THE REPUBLIC OF MOLDOVA
(Applications nos. 6345/16, 52055/16, 52063/16, 52133/16, 52171/16, 52179/16 and 52189/16)

JUDGMENT
Art 5 § 1 • Unlawful detention • Accusations of participation in mass disorders not based on “reasonable suspicion”
Art 11 • Freedom of peaceful assembly • Unlawful imposition of prohibition on participating in public gatherings

STRASBOURG
14 September 2021

FINAL

14/12/2021

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. Art 5 § 1 • Unlawful detention • Accusations of participation in mass disorders not based on “reasonable suspicion”
Art 11 • Freedom of peaceful assembly • Unlawful imposition of prohibition on participating in public gatherings
In the case of Petrenco and Others v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Jon Fridrik Kjølbro, President, Carlo Ranzoni, Aleš Pejchal, Valeriu Griţco, Branko Lubarda, Marko Bošnjak, Saadet Yüksel, judges,and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the applications (nos. 6345/16, 52055/16, 52063/16, 52133/16, 52171/16, 52179/16 and 52189/16) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Moldovan nationals, Mr Grigore Petrenco, Alexandr Roșco, Mihail Amerberg, Oleg Buznea, Pavel Grigorciuc, Andrei Druzi and Vladimir Jurat (“the applicants”), on 28 January 2016, 27 August 2016, 27 August 2016, 27 August 2016, 27 August 2016, 27 August 2016 and 27 August 2016 respectively;
the decision to give notice of the applications to the Moldovan Government (“the Government”);
the parties’ observations;
Having deliberated in private on 24 August 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the applicants’ arrest and detention following a demonstration on criminal charges of participation in mass disorders and the imposition on them of a prohibition on participating in public gatherings after their release from pre-trial detention for some three years. THE FACTS
2. The applicants were born in 1980, 1986, 1986, 1990, 1989, 1974 and 1988 respectively and live in Chișinău, except for the first, fifth and sixth, who live in Baden-Baden, Cahul and Mereni respectively. The applicants were represented by Mr V. Vieru and Ms N. Hriplivîi, lawyers practising in Chișinău. 3. The Government were represented by their Agent, Mr O. Rotari. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicants are members and sympathisers of an extra‐parliamentary opposition party, “Casa noastră - Moldova” (Our home – Moldova) led by the first applicant, who at the time was also a member of the Moldovan delegation to the Parliamentary Assembly of the Council of Europe. 6. On Sunday 6 September 2015 another opposition political party organised a large anti-government rally in the central square of Chișinău in which the applicants and other sympathisers of their party participated. One of the resolutions of the rally was the demand for the immediate dismissal of the Prosecutor General, who was accused of being politically subordinated to Mr Vladimir Plahotniuc, the leader of the main governing party at the time. Immediately after that, a large group of persons led by the applicants marched towards the headquarters of the Prosecutor General’s Office to demand his resignation. 7. At approximately 2.15 p.m. the group approached the building of the Prosecutor General’s Office. In a video of the event which is part of the case‐file one can see several members of the group wearing black t-shirts with the inscription ПЛХ-ПНХ (the abbreviation in Russian of the words meaning “Fuck you Plahotniuc”) rushing on the steps of the building towards its entrance. The fifth applicant can be seen approaching one of the entrance doors and sitting right next to it while leaning against the door. Several police officers immediately lift him up and push him away from the entrance. Many more members of the group climb the steps and rush towards the entrance doors, being stopped and pushed back by police officers. In a matter of two-three minutes the demonstrators are pushed away from the entrance doors towards the lower part of the steps by a group of policemen outnumbering them. No violence is seen on the video footage apart from the pushing of the demonstrators by the police officers away from the entrance of the building and the former shouting different slogans such as “Rușine” (meaning “Shame on you”), “Plahotniuc la dubă” (meaning “Plahotniuc in prison”) and “Jos mafia” (“Down with the mafia”), whistling and drum beating. The police officers present in great numbers form a line in front of the demonstrators preventing them from climbing the steps toward the entrance of the building. The majority of the demonstrators stay on the pavement, the lawn and the road in front of the building, only several dozen being on the lower part of the steps. 8. After being pushed to the lower part of the stairs, at approximately 2.18 p.m. a group of approximately 15-20 demonstrators, including the applicants, sit on the steps at the feet of the police cordon and announce that they intend to instal tents and stay there until the resignation of the Prosecutor General. Later they stand up. 9. At approximately 2.23 p.m. a special forces unit wearing helmets and special anti-riot gear approach the demonstration. At 2.27 p.m. several demonstrators start installing tents on the pavement in front of the building. At 2.28 p.m. the police demand the demonstrators to vacate the premises and warn them that they will be removed by force in case of non-compliance. Since the demonstrators refuse to comply, at 2.29 p.m. the police forces start pushing them further away from the entrance of the building. One of the demonstrators wearing a black t-shirt is seen being arrested by two police officers behind the police cordon. Having been pushed to the pavement, the demonstrators again sit down at approximately 2.31 p.m., this time on the pavement. 10. Another video included in the case-file starts at 4.01 p.m. In it one can see many demonstrators scattered on the pavement, lawn and road in front of the Prosecutor General Office’s building. The steps of the building are occupied by the police and approximately ten tents are installed on the sidewalk in front of the steps. A group of demonstrators including some of the applicants are seen seated on the lower part of the steps and the first applicant shouts through a megaphone that this is a peaceful demonstration and that they have the constitutional right to peacefully protest. At 4.20 p.m. a representative of the Mayor’s Office approaches the persons sitting on the pavement and tells them that they are breaking the law by occupying the pavement and gives them five minutes to vacate it. The protesters retort that the pavement is public property and that they have the right to hold a peaceful protest on it. At 4.42 p.m. members of the special forces and the police start taking away the tents from the pavement. In spite of some protesters’ attempts to retain the tents, within two minutes all tents are taken away by the police. At 4.47 p.m. all the demonstrators are pushed away from both the steps, the pavement and the lawn in front of the building. At approximately 5 p.m. the demonstration came to an end. 11. All the applicants were arrested at approximately 4.39 p.m. and were taken to a police station. They were placed in detention for a period of seventy-two hours on suspicion of having committed the offence of participating in mass disorders provided for by Article 285 of the Criminal Code (see paragraph 22 below). On 8 September 2015 the applicants were formally charged with the offence of participating in mass disorders and the Rîşcani District Court ordered their remand in custody for a period of thirty days. The court decision ordering the applicants’ remand in custody stated that there was evidence and witness statements confirming the applicants’ active involvement in violence against the police, however without indicating which evidence and which witness statements. In their appeal the applicants argued that the criminal prosecution and their detention were politically motivated and that there was not one single piece of evidence confirming the alleged violence against the police during the demonstration of 6 September 2015. They also indicated that there were no medical documents supporting the accusation about violence against the police. The Court of Appeal dismissed the applicants’ appeal and their detention was later prolonged several times until 22 February 2016, when the Rîşcani District Court ordered their house arrest as a result of the involvement of numerous members of the Council of Europe’s Parliamentary Assembly. While under house arrest, the applicants were obliged to wear electronic bracelets. 12. The fourth applicant’s house arrest was changed to provisional release under judicial control on 4 April 2016. 13. The other applicants were also released under judicial control on 26 April 2016. On the same date the court ordered as one of many surety measures in respect of them the prohibition on participating in public gatherings, if there was a risk of the gathering degenerating into mass disorders. That measure was prolonged on many occasions by the Rîşcani District Court and all the applicants’ appeals against it were dismissed by the Court of Appeal by 12 March 2019. 14. On 28 June 2017 the Rîşcani District Court found the applicants guilty as charged and sentenced them to suspended sentences of three and four years’ imprisonment. 15. On 29 September 2017 the first applicant, who was in Germany, applied for asylum in that country. On 16 October 2017 the German authorities granted him refugee status on the grounds that in Moldova he was prosecuted for political reasons. 16. On 12 March 2019 a panel of three judges of the Chișinău Court of Appeal dismissed the applicants’ appeals against the judgment of 28 June 2017. One of the members of the panel, Judge S.B., made a dissenting opinion in which she stated inter alia that after having viewed the video footage included the case-file and having examined the other materials of the case she did not find any evidence of violence against the police during the demonstration of 6 September 2015. She saw a peaceful gathering of persons protesting against the Government and expressing their discontent with the policy of the Government. The event having taken place on a Sunday, it had not even hindered in any way the work of the Prosecutor General’s Office. Therefore, she expressed the opinion that the applicants should have been acquitted. 17. In June 2019, following a week of tensions between the authorities and the opposition, a peaceful overthrow of the Government took place in Moldova and the former leader of the ruling political party, Mr V. Plahotniuc, fled the country. 18. On 11 February 2020 the Supreme Court of Justice upheld the applicants’ appeal against the judgment of the Court of Appeal of 12 March 2019. It found inter alia that the applicants’ conviction had been based exclusively on the interpretation and description of the facts made by the prosecution without any attention having been paid to the position of the applicants and to the materials of the case-file. Therefore, the Supreme Court quashed the inferior court’s judgment and sent the case back to the Court of Appeal for a fresh examination. 19. On 20 July 2020, the Court of Appeal upheld the applicants’ appeal against the judgment of 28 July 2017, quashed it and sent the case for a fresh examination by the Rîşcani District Court. 20. The criminal case against the applicants is pending before the first instance court to date. RELEVANT LEGAL FRAMEWORK
21. Article 40 of the Constitution of the Republic of Moldova (on freedom of assembly) provides:
“All meetings, demonstrations, rallies, processions or any other assemblies are free, but they may be organised and take place only peacefully and without the use of weapons.”
22. Article 285 of the Criminal Code of the Republic of Moldova entitled “Mass disorders”, as in force at the material time, read as follows:
(1) Organizing or leading mass disorders involving violence against persons, pogroms, arson, damage to goods, the use of firearms or other objects used as weapons, and violent or armed resistance to representatives of authorities shall be punished by imprisonment for 4 to 8 years. (2) Active participation in the commission of actions set forth in paragraph (1) shall be punished by imprisonment for 3 to 7 years. (3) Calls for active, violent insubordination to the legitimate requests of the authorities’ representatives, and for participation in mass disorders and for the commission of acts of violence against persons shall be punished by a fine in the amount of 200 to 500 conventional units or by community service for 180 to 240 hours or by imprisonment for up to 2 years. 23. Article 191 of the Code of Criminal Procedure entitled “Provisional release under judicial control”, as in force at the material time, read as follows:
(1) The provisional release under judicial control of a person under preventive arrest, of a detainee or of a person in whose case an arrest request was filed, may be granted by the investigative judge or, as the case may be, the court and shall imply one or several of the obligations set forth in para. (3). (2) Provisional release under judicial control shall not be granted to a suspect/accused/defendant if he/she has convictions which remain in the criminal record for serious, especially serious or exceptionally serious crimes or if there are indications that he/she will commit another crime, will try to influence witnesses, will destroy sources of evidence or will evade justice. (3) The provisional release under judicial control of an arrestee shall imply one or several obligations as follow:
1) not to leave the place of his/her domicile other than under the conditions set by the investigative judge or, as the case may be, by the court;
2) to notify the criminal investigative body or, as the case may be, the court about any change of domicile;
3) not to appear in specifically determined places;
4) to appear whenever summoned by the criminal investigative body or, as the case may be, by the court;
5) not to contact specific persons;
6) not to commit any actions preventing the finding of the truth in criminal proceedings;
7) not to drive vehicles or not to practise a profession used by him/her in the commission of the crime;
8) to leave his/her passport with the investigating judge or the court. (4) The police in the territorial jurisdiction in which a suspect/accused/defendant temporarily released lives shall exert control over him/her meeting the obligations set by the court. (5) Judicial control over a temporarily released person may be cancelled, wholly or partially, for justifiable reasons and in the manner set for this measure. THE LAW
24. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. 25. The applicants complained under Article 5 § 1 of the Convention that their deprivation of liberty had not been based on a reasonable suspicion that they had committed an offence and that it was arbitrary and unlawful. Article 5 § 1 reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...”
26. They also complained that the courts ordering their detention and house arrest had not relied on relevant and sufficient grounds, and had not motivated properly their decisions as required by Article 5 §§ 3 and 4 of the Convention, which reads as follows:
“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
27. The Court notes that these complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible. 28. The applicants argued that the accusations against them had been invented and that there was no evidence to support the allegations that they had conducted a violent demonstration. 29. The Government disagreed and argued that the applicants’ remand in custody and house arrest had been lawful, based on a reasonable suspicion that they had committed an offence and necessary in view of the risks of absconding and hindering the investigation. 30. Article 5 of the Convention is, together with Articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of the individual, and as such its importance is paramount. Its key purpose is to prevent arbitrary or unjustified deprivations of liberty. Three strands of reasoning in particular may be identified as running through the Court’s case‐law: the exhaustive nature of the exceptions, which must be interpreted strictly, and which do not allow for the broad range of justifications under other provisions (Articles 8 to 11 of the Convention in particular); the repeated emphasis on the lawfulness of the detention, both procedural and substantive, requiring scrupulous adherence to the rule of law; and the importance of the promptness or speediness of the requisite judicial controls (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 84, ECHR 2016 (extracts), with further references). 31. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see, among many other authorities S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 74, 22 October 2018). 32. According to the Court’s case-law, house arrest is considered, in view of its degree and intensity, to amount to deprivation of liberty within the meaning of Article 5 of the Convention (Buzadji, cited above, § 104). 33. Turning to the facts of the present case, the Court considers that the applicants’ detention fell within the ambit of Article 5 § 1 (c) of the Convention, as it was imposed for the purpose of bringing them before the competent legal authority on suspicion of having committed an offence. 34. The Court notes next that the applicants were arrested and charged with the offence of participating in mass disorders, an offence which according to the text of Article 285 of the Criminal Code is described as consisting of engaging in “violence against persons, pogroms, arson, damage to goods, the use of firearms or other objects used as weapons, and violent or armed resistance to representatives of authorities” (see paragraph 22 above). 35. Having examined the videos of the demonstration of 6 September 2015 included in the case-file (see their detailed description in paragraphs 7‐10 above), the Court notes that the accusations concerning the applicants’ violent behaviour are wholly inconsistent with the footage contained in those videos. According to the video footage in question, the authenticity of which was not contested by the Government, the demonstration in general and the applicants in particular were peaceful at all times. It is true that the police used force to push the protesters away from the entrance of the building, but the latter did not present any violent or armed resistance and let themselves be moved away from the entrance of the building in a matter of 2-3 minutes (see paragraphs 7 and 8 above). 36. The Court notes that judge S.B. from the Court of Appeal also expressed the view that the demonstration had been peaceful in her dissenting opinion (see paragraph 16 above). It also notes the finding of the Supreme Court of Justice in its judgment of 11 February 2020 to the effect that in convicting the applicants, the lower courts relied exclusively on the presentation of the facts made by the prosecution and that they had not paid attention to the materials of the case (see paragraph 18 above). 37. In such circumstances, the Court cannot but find that the accusation of participating in mass disorders against the applicants was not based on a “reasonable suspicion” and therefore cannot be considered “lawful” and devoid of arbitrariness within the meaning of Article 5 § 1 of the Convention (see Brega v. Moldova, no. 52100/08, § 38, 20 April 2010). There has, accordingly, been a violation of Article 5 § 1 of the Convention. 38. In the light of the above, the Court does not consider it necessary to examine separately the complaints under Article 5 §§ 3 and 4 of the Convention. 39. All the applicants but the first one complained that the prohibition on participating in public gatherings applied to them on 26 April 2016 as a measure of surety amounted to a breach of their right to freedom of assembly as guaranteed by 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.”
40. The Court notes that the impugned measure was not applied to the fourth applicant – Mr Oleg Buznea. Therefore, the Court is satisfied that this applicant cannot claim to be a victim for the purposes of Article 34. It follows that this part of the application in respect of him is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention. 41. At the same time, the Court notes that the complaint in respect of the other applicants, except for the first one, is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 42. The applicants argued that the measure imposed on them on 26 April 2016 and prolonged until 12 March 2019 was not provided for by law and, therefore, was in breach of the Article 11 of the Convention. 43. The Government did not make any submissions in respect of the merits of this complaint. 44. It is undisputed between the parties, and the Court agrees, that the prohibition imposed on the applicants on participating in public gatherings amounted to an “interference by [a] public authority” with the applicants’ right to freedom of assembly under the first paragraph of Article 11. Such interference will entail a violation of Article 11 unless it is “prescribed by law”, has an aim or aims that are legitimate under paragraph 2 of that Article and is “necessary in a democratic society” to achieve such aim or aims. 45. In so far as the lawfulness of the above interference is concerned, no elements in the present case allow the Court to consider that there was a legal basis for limiting the applicants’ right to freedom of assembly. Indeed, Article 191 of the Code of Criminal Procedure (see paragraph 23 above) does not provide for such a surety measure and the Government did not indicate to any other domestic legal provisions which would allow such a measure being imposed on a person released pending trial. This being so, the Court concludes that the interference in question was not lawful under domestic law. This conclusion makes it unnecessary to examine whether the interference pursued a legitimate aim and whether it was necessary in a democratic society. 46. Accordingly, there has been a violation of Article 11 of the Convention. 47. The first applicant complained under Article 3 of the Convention about the poor conditions of his detention and under Article 13 of the Convention that he did not have effective remedies against the poor conditions of detention. 48. The Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had the opportunity to put matters right through their own legal system (see Balan v. Moldova (dec.), no. 44746/08, 24 January 2012). 49. The Court recalls that recently the Moldovan authorities created a new compensatory remedy against poor conditions of detention instituted by Law No. 163 of 20 July 2017, a remedy which the Court considered effective in Draniceru v. the Republic of Moldova, ((dec.), no. 31975/15, § 41, 12 February 2019). Since the first applicant failed to exhaust that remedy, his complaint under Article 3 of the Convention must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. At the same time, his complaint under Article 13 taken together with Article 3 must be declared inadmissible for being manifestly ill-founded pursuant to Article 35 §§ 3(a) and 4 of the Convention (see Talambuța v. the Republic of Moldova, (dec.), no. 23151/09, §§ 23‐24, 19 March 2019). 50. All but the first applicant also complained under Article 8 of the Convention that during their house arrest they were obliged to wear electronic bracelets. All but the first and the fourth applicants also complained under Article 13 that they did not have an effective remedy against the breach of their right under Article 11 of the Convention. However, having regard to the facts of the case, the submissions of the parties and its findings under Articles 5 and 11 of the Convention, the Court considers that it has examined the main legal questions raised in the present applications, and that it is not necessary to examine either the admissibility or the merits of the complaints under Article 8 and Article 13 taken together with Article 11 of the Convention (see Kaos‐GL v. Turkey, 450 no. 4982/07, § 65, 22 November 2016; Ghiulfer Predescu v. Romania, 451 no. 29751/09, § 67, 27 June 2017; Political Party “Patria” and Others v. the Republic of Moldova, nos. 5113/15 and 14 others, § 41, 4 August 2020). 51. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
52. The applicants claimed 15,000 euros (EUR) each in respect of non‐pecuniary damage. 53. The Government contested the amounts of non-pecuniary damage claimed by the applicants, alleging that they were excessive. 54. The Court considers that the applicants must have suffered stress and frustration as a result of the violations found and awards EUR 7,500 to the first applicant, EUR 7,500 to the fourth applicant and EUR 9,750 to each of other applicants in respect of non-pecuniary damage. 55. The applicants also claimed EUR 8,760 in respect of the costs and expenses incurred before the Court. 56. The Government considered this amount excessive. 57. Regard being had to the documents in its possession, the Court considers it reasonable to award EUR 4,000 jointly in respect of costs and expenses. 58. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to Mr Petrenco;
(ii) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to Mr Buznea;
(iii) EUR 9,750 (nine thousand seven hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to each of the other applicants;
(iv) EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicants jointly, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 14 September 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı, Jon Fridrik KjølbroDeputy Registrar President