Human Rights Report on Moldova: Freedom of assembly | Lawyer Moldova

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Monday, 25 March 2013

Human Rights Report on Moldova: Freedom of assembly

On numerous occasions, the ombudsmen enshrined the primacy of the freedom of expression and the freedom of assembly in the approaches that aimed the issue of observance of rights and fundamental freedoms . They occupy a distinct place in the work of the National Institution for the Protection of Human Rights – the Centre for Human Rights.

Complete and accurate awareness of the rights and freedoms is an imperative of time. This imperative requires extensive information on the institutional and the regulatory legal fund in the field. No doubt, the first step towards achieving these aspirations is to ensure the protection of rights and fundamental freedoms in a specific and effective manner, so that it could become a reality.

We note that according to international standards, the freedom of peaceful assembly and the freedom of expression belong to all people, not just to those who constitute the majority. Therefore, it is acceptable for a meeting to disturb certain people or groups of individuals regarding the propagated ideas or submitted claims. In this context, the concept of freedom suggests negative actions on behalf of the state, or failure to intervene in its citizens’ accomplishment of the freedom of assembly. Moreover, a genuine and effective peaceful assembly is not compatible with a simple non-interference duty of the state; yet, a positive duty is also present, the duty to ensure the peaceful conduct of a lawful demonstrations.

Therefore, relevant international obligations require not only negative but also positive duties from the states. These consist in the state’s adopting protective and security measures that would confer effectiveness and substance to the exercise of freedom of assembly. The Moldovan Law on Assembly No. 26 of 22/02/2008, which aims to guarantee the exercise by any person of the freedom of assembly in the manner stipulated in the Constitution of the Republic of Moldova and in international acts to which Moldova is party, states that anyone is free to actively participate in or to attend a meeting.

In these circumstances, imposing certain restrictions on the exercise of the constitutional right to assembly is a clear violation of a fundamental right enjoyed by everyone. Moreover, the limitation of exercising the right to freedom of speech and of assembly practically equals to a breach of the given fundamental right, which can be achieved only under Article 54, paragraph (2) of the Constitution.Consequently, achieving the fundamental right to expression and assembly, manifested by triggering a protest, cannot be subjected to any interference, given that it is within the limits prescribed by the law in force. Having carried out a comparative analysis of the situation in 2011 in this respect, as compared to the previous years, it was found that a greater number of community members perceive the meetings as a form of expression of opinions  and as an indispensable element of a genuine democracy, which requires active civic behaviour.

Although, both the Chisinau City Hall and the police bodies displayed more constructive attitudes towards the provision guaranteeing respect for the freedom of assembly, compared to previous years,there are some irregularities identified by the Centre for Human Rights. Thus, among the main issues highlighted by ombudsmen is the reduced interaction between the actors  involved in ensuring the realization of freedom of assembly and misapplication of the Law on assembly, in connection with a series of objective circumstances generated, including, by the level of preparedness of those involved.

The ombudsmen aimed at achieving in the first half of 2011, an evaluation on the implementation of the Law on Assemblies. Given that we cannot act alone, because the successful implementation of these actions depends, first of all, on the collaboration of competent institutions, we requested the support of local public administration authorities and of the courts  in providing relevant information for the period 2010 - April 2011. Thus, it was found that, compared to other cities, the municipality Chisinau recorded, during the reporting period, the greatest number of meetings , being followed by Balti, where 27 meetings were held, Orhei – 22 meetings, Soldanesti – 17 meetings, Gagauz ATU - 17 meetings and Criuleni - 15 meetings.

Although accurate estimation of the number of meetings, through sufficiently credible, consistent, complete and comparable statistical data turns out to be difficult, it was found  that in 2011, in the Republic of Moldova there were recorded 864 meetings compared to 707 in 2010 and 773 in 2009 . The information received by the Centre for Human Rights for the estimation of the degree of observance of the freedom of assembly indicates that some local PA authorities possess no data on the services requested by the organizers  under article 10, paragraph (4) of the Law on Assembly, no data about the observance of the organizer’s obligations to appoint the coordinator of the meeting and to inform the coordinator’s name to the local authorities . More importantly, LPA do not possess a clear mechanism for dealing with the situations when more notifications are submitted to organize concurrent meetings  or with the situations when several meetings  are planned for the same time; these notions are often confused. It was also noted that in most LPA the person who is in charge for managing the meetings is the Mayor, Deputy Mayor, and in some cases the lawyer, the Mayor ‘s councillor or the Public Relations specialist .

According to the submitted information in the reporting period, there were not reported situations in which the LPA representative asked the organizer to cease the assembly or to disperse the participants.  On the other hand, the Chisinau City Hall statement should be mentioned, which reads "the modification of the place, time, and day for the conduct of the meeting was requested only under article 5, paragraph (3) of the Law, aiming at a good organization of the planned meetings on behalf of State officials (summits, arrivals of official delegations from other states, organizing state holidays)". In this context, the ombudsmen noted the diversity of interpretations of the provisions of the Law on Assembly by several subjects, which highlights the lack of consolidated practices and traditions to guarantee freedom of assembly and, as a result, restrict its exercise . However, states are not only obliged to protect the right of peaceful assembly, but also to refrain from indirect and abusive restrictions to the exercise of this right by ensuring the effectiveness of this freedom.

Moreover, limiting the conduct of a meeting is an interference with the freedom of assembly and this cannot be justified unless they meet the requirements of article 11, paragraph 2 of the European Convention on Human Rights, and namely “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.”  In the same order of ideas, it is not by chance that the ombudsmen have raised concerns about the restrictions imposed by police officers on the freedom of assembly. On April 10, 2011, about 200 employees of the Ministry of Internal Affairs were supposed to protest against government reforms on the central square Piata Marii Adunari Nationale, but the event did not occur because the MIA employees had been warned by their superiors about the inadmissibility to exercise their right of assembly.

Moreover, under Article 10, paragraph 1 and Article 11 of the Convention, any person has the right to freedom of expression, freedom of peaceful assembly and freedom of association. Both the freedom of expression and the freedom of assembly know limits as well, that are dictated by the situation or the profession of the people. Given that the text of the Convention may be interpreted separately from its jurisprudence, the Court stated in several cases that any restriction shall be assessed depending on the circumstances. As such, some people have more responsibilities than others. These are civil servants, members of the armed forces and of the police. The made restrictions must be justified by exact circumstances and to be necessary for the remedy of the damage according to the situations presented in o Article 10, paragraph 2 and Article 11 of the Convention . In the case Rommelfanger (1989), the European Commission on Human Rights stated that the States have a positive obligation to ensure that the exercise of the freedom of expression by a state official is not subject to restrictions that would affect the content of this right. Even in the case when one accepts the existence of a category of state officials with special “duties and responsibilities", the restrictions on their right to freedom of expression must be examined under the same criteria that apply in determining interference in the freedom of expression of others.

Moreover, the content of any message that the organizers of the meetings want to express is not a reason to consider it outside the scope of Article 11. The Court declared that the freedom of assembly guaranteed by Article 11 shall be considered in the light of Article 10, protection of opinions and freedom to express them is one of the objectives of the freedom of assembly .
In case the restrictions of the exercise of the rights guaranteed by Article 11, paragraph 1 attack the members of the administration, they are not related to paragraph 2, but the second sentence of Article 11, paragraph 2. The sentence imposes any restriction on the exercise of the right of association or meeting only in terms of "legitimacy". The European Commission has defined this notion, deciding that in order  to be "legitimate", within the meaning of the second sentence of Article 11, paragraph 2, the restrictions should at least comply with the national law and be exempt from arbitrariness, i.e. they must have a very precise legal basis and be applied in accordance with this. In these circumstances, the elimination or imposition of certain restrictions to policemen, as a social class, from the exercise or the exercise of the constitutional right to assembly is a flagrant infringement of a fundamental right enjoyed by every citizen of the Republic of Moldova, including the policemen; citizens are equal before the law. In addition, the restriction of the right of freedom of expression and assembly for certain categories of citizens, does not mean deprivation of the contents of this right, but it is equivalent, practically, to a limitation of the given fundamental right, which cannot be exercised, as we noted above, in other way than under Article 54, paragraph (2) of the Constitution.

The national legislation in force, in particular the provisions of Article 362-370 of the Labour Code, governing the establishment of restrictions on enforcement officers, who secure public order, legal order and state security, on court judges, on employees of military units, organizations or institutions of the armed forces, only in regard to their participation in strikes, which should be a voluntary refusal of the employees to perform all or part of their work obligations, in order to solve the collective labour conflict broken out in accordance with the law in force. The protest that the employees of the Ministry of Internal Affairs followed to undertake should not be interpreted as a strike.Based on these concerns, the ombudsmen express their disagreement with imposing any limits, restrictions, pressures, conditions or restraints in the exercise of the right to freedom of expression and assembly of the policemen and call for the exclusion in the future of such practices that jeopardize the institution's image as a specialized body responsible for developing, promoting and implementing the state policy related to legality, public order, civil protection and the protection of citizens’ rights and freedoms.

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