CEDH · CASELAW;CLIN;ENG — 14 février 2006

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Moldova - 28793/02 Judgment 14.2.2006 [Section IV] Article 11 Article 11-1 Freedom of association Temporary ban on a political party on account of unauthorised gatherings: violation   Facts : The applicant is an opposition political party, the Christian Democratic People's Party (CDPP). As a sign of protest against a government proposal to make the study of Russian compulsory in schools, it informed the Municipal Council of its intention of holding a meeting with its voters in front of the seat of the Government. The Municipal Council initially granted authorisation for the meeting at another location, but subsequently suspended this decision awaiting the official position of Parliament as to which law was to apply to the gathering. In the meantime, the party's voters held a number of meetings without having complied with formalities. The Ministry of Justice required a halt to the meetings and, after giving the applicant party a warning, imposed a one-month ban on the party for having breached several pieces of legislation. The ban was imposed on the basis of the Law on Parties and other Socio-Political Organisations. The Ministry of Justice also found that the gatherings by the CDPP were demonstrations which fell within the scope of the Assemblies Law, and hence could only have been carried out upon authorisation. Following an inquiry by the Council of Europe Secretary General and the approaching local elections, the Ministry of Justice lifted the ban and authorised the party to restart its activity. Despite the lifting of the ban, the applicant party challenged the measure in the courts. The Court of Appeal dismissed the applicant's action, finding that the meetings of voters had transformed into demonstrations which required an authorisation. It also found that the demonstrations had blocked public roads and that the participation of minors in them was in breach of several laws. The Supreme Court of Justice found that the sanction imposed on the party had not been disproportionate. In another set of proceedings undertaken by the Government seeking a declaration that the demonstrations had been illegal, the Supreme Court of Justice ruled in favour of the Government and effectively declared the gatherings illegal. Law : Article 11 – It was not disputed that the imposition of a temporary ban on the applicant party's activities had amounted to an interference. As to whether the interference had been prescribed by law and pursued a legitimate aim, the Court decided not to examine these questions in view of the conclusions it reached on the “necessity of the interference in a democratic society”. Given the essential role played by political parties in the proper functioning of democracy, interferences with their rights under Article 11 must be construed strictly; only convincing and compelling reasons can justify restrictions on such parties' freedom of association. In the present case, the ban on the CDPP's activities (which was an opposition party) was imposed as a result of the gatherings it had organised in protest against the Government's plans to make the study of Russian compulsory for school children. Given the public interest and topicality of this issue at the time, the Court considered that the State's margin of appreciation was correspondingly narrowed, and that only very compelling reasons would have justified the interference with the CDPP's rights. The authorities and courts had relied on three main grounds in justifying the temporary ban. Firstly, the lack of authorisation for the gatherings as required by the Assemblies Law. However, it should be borne in mind that this legislation was initially considered unclear and not applied by the Municipal Council. It was thus questionable that non-compliance with it could justify such a serious measure as a temporary ban. Even assuming that the legislation was clear, the Court was not convinced that failure to comply with it, which was generally punishable with an administrative fine, could justify a temporary ban on the activities of an opposition party. As regards the presence of children at the gatherings, it had not been established by the domestic courts that they were there as a result of any action or policy of the applicant party. Moreover, since the gatherings were held in a public place where everyone could attend, the Court considered it was rather a matter of personal choice for parents to allow their children to attend those gathering or not, and would appear contrary to both the parents' and children's' freedom of assembly to prevent them from attending such events, which it should be recalled were a protest against a Government policy on schooling. Accordingly, this was not a sufficient reason for the ban. As to the third ground for the ban, that some statements at the gatherings amounted to calls to public violence, the Court was not persuaded that the singing of a fairly mild student song could be interpreted as an incitement to violence; this had not been explained either by the authorities or the courts. Consequently, it could not be considered either as a relevant and sufficient reason. Since the CDPP's gatherings were entirely peaceful, there were no calls to violent overthrow of the Government or any other encroachment on the principles of pluralism and democracy, it cannot be reasonably said that the measure applied to it was proportionate to the aim pursued and that it met a “pressing social need”. The fact that the ban was temporary was not of decisive importance, as such a ban could also have a “chilling effect” on the Party's freedom to exercise its freedom of expression and to pursue its political goals, in particular on the eve of local elections. The Court noted with satisfaction the lifting of the ban following the enquiry by the Secretary General under Article 52 of the Convention. Even so, the temporary ban had not been based on relevant and sufficient reasons. Conclusion : violation (six votes to one). Article 10 – The Court found that there was no separate issue under this complaint. Article 41 – The Court made an award in respect of costs and expenses.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes