Case no 28793/02
42. The applicant party complained that the temporary ban in issue had violated its right to freedom of peaceful assembly and association as guaranteed by Article 11 of the Convention ...
A. Applicability of Article 11
43. As a preliminary point, the Government raised the question of the applicability of Article 11 to the present case. In their observations they confined themselves to submitting that it did not apply because the gatherings organised by the CDPP had not been peaceful and had not been authorised in accordance with the law.
44. The applicant party disagreed and pointed out that in the video of the gatherings submitted by the Government there were no signs of violence.
45. The Court first notes that the Government have failed to substantiate their allegations of violence. The domestic courts examined twice the issue of the legality of the CDPP's gatherings (see the proceedings which ended with the final judgments of the Supreme Court of Justice of 15 March 2002 and 17 May 2002) and never found them to have been violent. Lastly, it appears from the video submitted by the Government that the gatherings were peaceful.
46. It follows that the Government's objection must be dismissed.
B. Compliance with Article 11
1. Whether there was interference
47. The parties agreed that the imposition of a temporary ban on the applicant party's activities amounted to interference with the CDPP's rights guaranteed by Article 11. That view is shared by the Court.
2. Whether the interference was justified
48. Such interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 and was “necessary in a democratic society” for the achievement of those aims.
(a) “Prescribed by law”
49. The Court notes that the Ministry of Justice imposed a temporary ban on the CDPP's activities on the basis of section 29 of the Parties and other Socio-Political Organisations Act (see paragraph 37 above).
50. It follows from that provision, inter alia, that the Ministry of Justice was entitled to impose a ban on the CDPP's activities if the party failed to comply with the official warning of 14 January 2002.
51. The warning letter of 14 January 2002 stated that the CDPP had failed to observe the terms of the authorisation issued by the Municipal Council on 3 January 2002 (see paragraph 12 above) and had held unauthorised demonstrations on 9, 10, 11 and 13 January 2002. It requested explanations and ordered the cessation of acts which were “incompatible with the Constitution and with the legislation of Moldova”.
52. Only in its decision of 18 January 2002 imposing a temporary ban on the CDPP's activities (see paragraph 18 above) did the Ministry of Justice rely on new grounds such as the involvement of children in street action, calls to public violence and acts undermining the constitutional order (see paragraphs 22-23 above).
53. The applicant party was not, therefore, informed in the warning letter of all the acts imputed to it, which reduced its ability to foresee all the consequences which might ensue if it continued to hold meetings. This in itself might be sufficient basis for the conclusion that the impugned measures were not “prescribed by law”. However, the Court does not consider it necessary to decide this issue having regard to its conclusions set out below.
(b) Legitimate aim
54. The Government did not make any particular submissions in this respect and the applicant party argued that the interference did not pursue any legitimate aim. The Court, for the reasons set out below, does not consider it necessary to decide this point either.
(c) “Necessary in a democratic society”
(α) General principles
62. The Court reiterates that, notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11. That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy (see United Communist Party of Turkey and Others v. Turkey, 30 January 1998, §§ 42-43, Reports of Judgments and Decisions 1998-I).
63. Not only is political democracy a fundamental feature of the European public order, but the Convention was designed to promote and maintain the ideals and values of a democratic society. Democracy, the Court has stressed, is the only political model contemplated in the Convention and the only one compatible with it. By virtue of the wording of the second paragraph of Article 11, and likewise of Articles 8, 9 and 10 of the Convention, the only necessity capable of justifying an interference with any of the rights enshrined in those Articles is one that must claim to spring from a “democratic society” (see, for instance, United Communist Party of Turkey and Others, cited above, §§ 43-45).
64. Referring to the hallmarks of a “democratic society”, the Court has attached particular importance to pluralism, tolerance and broadmindedness. In that context, it has held that, although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position (see Young, James and Webster v. the United Kingdom, 13 August 1981, § 63, Series A no. 44, and Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 112, ECHR 1999-III).
65. It follows that the limits of permissible criticism are wider with regard to the government than in relation to a private citizen, or even a politician. In a democratic system, the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the press and public opinion. Furthermore, the dominant position the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media (see Castells v. Spain, 23 April 1992, § 46, Series A no. 236).
66. In Informationsverein Lentia and Others v. Austria (24 November 1993, Series A no. 276), the Court described the State as the ultimate guarantor of the principle of pluralism (§ 38). In the political sphere, that responsibility means that the State is under the obligation, among others, to hold, in accordance with Article 3 of Protocol No. 1, free elections at reasonable intervals by secret ballot under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. Such expression is inconceivable without the participation of a plurality of political parties representing the different shades of opinion to be found within a country's population. By relaying this range of opinion, not only within political institutions but also – with the help of the media – at all levels of social life, political parties make an irreplaceable contribution to political debate, which is at the very core of the concept of a democratic society (see Lingens v. Austria, 8 July 1986, § 42, Series A no. 103).
67. While freedom of expression is important for everybody, it is especially so for an elected representative of the people. He represents his electorate, draws attention to their preoccupations and defends their interests. Accordingly, interferences with the freedom of expression of an opposition member of parliament call for the closest scrutiny on the part of the Court (see Castells, cited above, § 42).
68. In view of the essential role played by political parties in the proper functioning of democracy, the exceptions set out in Article 11 are, where political parties are concerned, to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties' freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the Contracting States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision (see Socialist Party and Others v. Turkey, 25 May 1998, § 50, Reports 1998-III). It therefore follows that the Court must scrutinise very carefully the necessity for imposing a ban on a parliamentary political party's activities, even a ban of fairly short duration.
69. Freedom of association and political debate is not absolute, however, and it must be accepted that where an association, through its activities or the intentions it has expressly or by implication declared in its programme, jeopardises the State's institutions or the rights and freedoms of others, Article 11 does not deprive the State of the power to protect those institutions and persons. It is for the Court to give a final ruling on the compatibility of such measures with the freedom of expression enshrined in Article 10 (see, mutatis mutandis, Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216).
70. When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they have delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, mutatis mutandis, Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298).
(ß) Application of the above principles to the present case
71. The Court notes that at the material time the CDPP was a minority parliamentary opposition party with approximately ten per cent of the seats in Parliament, while the majority Communist Party had approximately seventy per cent of the seats. The ban was imposed on the applicant party's activities as a result of gatherings it had organised in order to express its disagreement with and protest against the government's plans to make the study of Russian compulsory for schoolchildren, at that time the subject of a heated debate within Moldovan society. Given the public interest in free expression in these circumstances and the fact that the applicant party was an opposition parliamentary political party, the Court considers 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 right to freedom of expression and assembly (see paragraph 68 above).
72. The Ministry of Justice, and later the domestic courts, in justifying the temporary ban on the CDPP's activities, relied on three main grounds: that the CDPP had not obtained authorisation for its gatherings in accordance with the Assemblies Act; that children had been present at its gatherings; and that some statements made at the gatherings amounted to calls to public violence.
73. As far as the first ground is concerned, the Court notes that there was a dispute as to the applicability of the provisions of the Assemblies Act to the CDPP's gatherings. The Municipal Council, which was the only authority empowered to issue authorisations under that law, considered the legislation unclear and refused to apply it to the CDPP until Parliament had given its official interpretation (see paragraph 13 above). Hence, it would appear questionable whether non-compliance with the legislation in those circumstances would justify such a serious measure as a temporary ban. However, even assuming that the legislation was clear, the Court is not convinced that the failure to comply with that legislation, which otherwise was punishable with an administrative fine of MDL 180-450 (EUR 16-40) (see paragraph 41 above), could be considered as a relevant and sufficient reason for imposing a temporary ban on the activities of an opposition party.
74. Where the presence of children is concerned, the Court notes that it has not been established by the domestic courts that they were there as a result of any action or policy on the part of the applicant party. Since the gatherings were held in a public place anyone, including children, could attend. Moreover, in the Court's view, it was rather a matter of personal choice for the parents to decide whether to allow their children to attend those gatherings and it would appear to be contrary to the parents' and children's freedom of assembly to prevent them from attending such events which, it must be recalled, were to protest against government policy on schooling. Accordingly, the Court is not satisfied that this reason was relevant and sufficient.
75. As to the third ground for the ban, the Court is not persuaded that the singing of a fairly mild student song could reasonably be interpreted as a call to public violence. Neither the Ministry of Justice nor the domestic courts have attempted to explain how the impugned line from the chorus of the song amounted to a call for violence. Consequently, this reason cannot be considered as relevant and sufficient either.
76. The Court reiterates that only very serious breaches such as those which endanger political pluralism or fundamental democratic principles could justify a ban on the activities of a political party. Since the CDPP's gatherings were entirely peaceful, there were no calls to violent overthrowing of the government or any other acts undermining the principles of pluralism and democracy, it cannot reasonably be said that the measure applied was proportionate to the aim pursued and that it met a “pressing social need”.
77. The temporary nature of the ban is not of decisive importance in considering the proportionality of the measure, since even a temporary ban could reasonably be said to have a “chilling effect” on the party's right to exercise its freedom of expression and to pursue its political goals, the more so since it was imposed on the eve of the local elections.
78. The Court has noted with satisfaction the readiness of the Moldovan authorities to lift the ban following instigation of the inquiry by the Secretary General under Article 52 of the Convention (see paragraph 25 above). Even so, the Court finds that the temporary ban on the CDPP's activities was not based on relevant and sufficient reasons and was not necessary in a democratic society. Accordingly, there has been a violation of Article 11 of the Convention.