Last Updated on October 3, 2020 by LawEuro
SECOND SECTION
DECISION
Application no. 44743/08
Anatol MĂTĂSARU
against the Republic of Moldova
The European Court of Human Rights (Second Section), sitting on 21 January 2020 as a Chamber composed of:
Robert Spano, President,
Valeriu Griţco,
Egidijus Kūris,
Ivana Jelić,
Arnfinn Bårdsen,
Darian Pavli,
Saadet Yüksel, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 22 August 2008,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Anatol Mătăsaru, is a Moldovan national who was born in 1970 and lives in Chişinău. He was represented before the Court by Mr A. Postică, a lawyer practising in Chişinău.
2. The Moldovan Government (“the Government”) were represented by their Agent, Mr O. Rotari.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
A. Events of 25 April 2008
4. On 24 April 2008 the applicant was authorised by the Chişinău municipality to display publicly, on several streets in the centre of Chişinău, between 24 April and 2 May 2008, caricatures criticizing alleged corruption in the Moldovan law-enforcement agencies. The caricatures were printed, with the agreement of the relevant artists, from the internet site of Transparency International Moldova. The municipality ordered the General Police Commissariat to ensure that public order was observed during the display, and the relevant municipal service to ensure, if necessary, that the area was cleaned up after the display was finished.
5. At 7.30 a.m. on 25 April 2008 the applicant put up fifty-four sheets of paper with caricatures on them for public display, fixing them with adhesive tape. The prints were displayed in front of the Centru sector city hall in such a way as not to block the entrance.
6. At 8 a.m. a road traffic police officer asked the applicant to follow him to his car to fill in a report on an alleged administrative offence of parking in an unauthorised place. While the applicant was in discussion with the officer, several persons – allegedly from the Scut Special Forces Battalion – tore down all the drawings and took them away.
7. At 9 a.m. the applicant put up sixty more prints with similar content on Bănulescu Bodoni Street, within the perimeter specified in the Chişinău municipality’s authorisation, in front of the Government building. He also put up a copy of the municipality’s authorisation.
8. At 10 a.m. he put up forty more prints in the park opposite the Government building.
9. At 12 noon he put up fifty more prints on Bulgară street, in central Chişinău, within the perimeter specified in the Chişinău municipality’s authorisation.
10. At 12.30 p.m. the applicant was called by an observer from the Organization for Security and Cooperation in Europe (OSCE), who notified him that his display in front of the Government building had been destroyed by several plain-clothes police officers.
11. While he was still standing next to his newest display, on Bulgară street, the applicant witnessed its destruction by several plain-clothed officers.
12. At 4 p.m. the last display, in the park opposite the Government building, was also destroyed by the police.
13. Some of the events were photographed or recorded on video. One television programme showed a person tearing up the prints in front of the Government building. The prints appeared to be firmly attached with duct tape, and the person made a visible effort to tear them off the wall. When a police officer stationed in the immediate vicinity was asked by the applicant and the reporter about the reasons for the actions described above, he replied that it was not he who had destroyed the prints, and immediately drove away. Before doing so he addressed the applicant by name. The reporters also said that the police had been responsible for tearing down other displays put up by the applicant on the same day and that the first exhibition had been destroyed just five minutes after being set up.
B. Events of 1 May 2008
14. On 1 May 2008 the applicant continued his protest by displaying for public view caricatures criticizing alleged corruption in the Moldovan law‑enforcement agencies. At 9 a.m. he attached 100 prints to a wall opposite the Government building.
15. At 11.25 a.m. Mr I.V., the head of Chişinău road traffic police, approached the applicant and asked him to accompany him to Buiucani police station. The applicant put his video camera into his car, but was then allegedly hit twice and ordered to bring his camera along. He had to comply. In the meantime, the display was being torn up by police officers.
16. The applicant was subsequently taken to a police car and placed in a detention cell at Buiucani police station. All his belongings were taken away from him, including the video camera. According to the detention records at the police station, the applicant was placed in detention at 12 noon and released at 2 p.m. the same day.
17. At 2 p.m. on 1 May 2008 the applicant was given a copy of the decision to fine him for an administrative offence under Article 150 of the Code of Administrative Offences. According to the applicant, he was not released until 4 p.m. At 4.20 p.m. his belongings were returned to him. All the material filmed during his protest in the morning had been deleted from the video-cassette, and the camera appeared to have been damaged. The applicant asked for an expert to assess the condition of the camera at the time it was returned to him. When that request was rejected, he refused to take the camera back. The police officer later claimed that the camera had had no battery power and could not have been used at the police station. The applicant could pick up his camera from the police station at any time.
18. On 23 September 2008 the Buiucani District Court quashed the administrative sanction imposed on the applicant on 1 May 2008. The court referred to the authorisation issued by the municipality, which mentioned the obligation of the relevant municipal sevice to ensure that the protest area was cleaned up. It appears from the materials submitted by the parties that no appeal was lodged against that decision, which therefore became final.
C. Civil proceedings initiated by the applicant
19. On 4 September 2008 the applicant lodged a civil action against the Ministry of Finance and the Ministry of Internal Affairs, claiming compensation for his unlawful arrest and detention, as well as for the interruption of his protests and the damage to his camera and the caricatures. He relied, inter alia, on Articles 5, 8 and 11 of the Convention.
20. On 2 November 2011 the Supreme Court of Justice gave a final ruling in the case, finding that the applicant’s rights guaranteed by Articles 5, 8 and 11 had been breached. The court awarded the applicant some 1,300 euros (EUR) for non-pecuniary damage, plus pecuniary damage of some EUR 500 to cover the cost of the destroyed caricatures and video camera.
D. Relevant facts concerning the friendly-settlement proceedings before the Court
21. On 17 April 2009 the Court gave the respondent Government notice of the present application and asked questions concerning a possible breach of Article 11 of the Convention.
22. By letter of 5 October 2009 the Court forwarded a copy of the Government’s observations to the applicant and invited him to comment on them. The letter also contained instructions concerning the post-communication procedure and the friendly-settlement procedure. The relevant part of the letter read as follows:
“I should be grateful if you would indicate by the above-mentioned date the applicant’s position regarding a friendly settlement of the case, and any proposals he may wish to make. If the parties are interested in reaching a settlement, I would be prepared to make a suggestion for an appropriate arrangement. Having regard to the requirement of strict confidentiality under Rule 62 § 2 of the Rules of Court, anysubmissions or proposals in this respect should be set out in a separate document, the contents of which must not be referred to in any submissions made in the context of the contentious proceedings.”
23. In 2011 the Court adjourned the case and addressed to the parties further questions concerning a possible violation of Article 10 of the Convention.
24. By letter dated 13 May 2019 the Government informed the Court that they were interested in reaching a friendly settlement with the applicant in the present case and requested the Registry’s assistance for that purpose.
25. By letter of 17 May 2019 the Court sent the parties draft declarations containing the terms of a possible friendly settlement.
26. In their letter dated 24 June 2019, the Government submitted that the applicant had not respected the confidentiality of the friendly-settlement procedure because he had disclosed to the media the contents of the Registry’s friendly-settlement proposal. In support of their allegations, the Government enclosed a copy of an article from the news website www.anticoruptie.md dated 22 May 2019 containing such details from the Registry’s friendly-settlement proposal as the exact amounts of compensation for non-pecuniary damage and for costs and expenses.
COMPLAINTS
27. The applicant complained under Article 5 of the Convention that he had been arrested unlawfully and had been detained for more than three hours at the police station without any reason.
28. He also complained under Article 13 that he had no effective remedy in respect of his complaint under Article 5 of the Convention.
29. He further complained under Article 13 that he had no effective remedy in respect of the alleged breach of his rights under Article 8 of the Convention.
30. Lastly, the applicant complained that the actions by the police had violated his rights guaranteed under Articles 10 and 11 of the Convention.
THE LAW
31. The Government argued that, by disclosing the contents of the Court’s friendly-settlement proposal to the media, the applicant had breached the confidentiality of the negotiations, in contravention of Article 39 § 2 of the Convention and Rule 62 § 2 of the Rules of Court, which read as follows:
Article 39 of the Convention
“1. At any stage of the proceedings, the Court may place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the Protocols thereto.
2. Proceedings conducted under paragraph 1 shall be confidential.”
Rule 62 § 2 of the Rules
(Friendly settlement)
“2. In accordance with Article 39 § 2 of the Convention, the friendly-settlement negotiations shall be confidential and without prejudice to the parties’ arguments in the contentious proceedings. No written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in the contentious proceedings.”
32. The applicant objected and argued that it had not been he who had disclosed the terms of the Registry’s friendly-settlement proposal, but the Government Agent himself. In particular, in a letter dated 15 July 2019, he argued that on 21 May 2019, he had been telephoned by the Government Agent and invited to the Ministry of Justice to discuss the terms of the friendly settlement. He submitted a copy of what appears to be a screenshot of his mobile telephone showing an incoming call at 10.44 a.m. on 21 May 2019 from the landline number of the Government Agent’s office. The applicant further submitted that he had gone to the meeting with his wife, J. S., who was a journalist. The meeting with the Agent had taken place in the hall of the Ministry of Justice, where the Agent had informed him of the terms of the Registry’s friendly-settlement proposal, including the amounts of money for non-pecuniary damage and costs and expenses. His wife had been nearby and had overheard the Agent’s statements. She had later written the impugned article.
33. The applicant also submitted an affidavit from his wife, who confirmed having accompanied him to the meeting with the Government Agent on 21 May 2019. She stated that her husband had met the Agent in the hall of the Ministry of Justice and that the latter had informed him that the Court had given the Government notice of his case and that they needed to take a decision concerning the friendly settlement. The Agent had then given her husband a letter and they had left. In the car she had asked to see the letter and her husband had given it to her. She had later written the impugned article on the basis of the contents of that letter.
34. In a letter dated 13 September 2019, the applicant changed his initial statements and submitted that it had been he who had called the Government Agent in May 2019. He also sent the Court a copy of a complaint lodged with the prosecutor’s office, in which he accused the Government Agent of abuse.
35. In reply to the above statements, the Government Agent submitted that he had never seen in person either the applicant or his wife and that their statements about the alleged meeting of 21 May 2019 were fictitious. The Agent also presented a copy of a document from Moldtelecom, the operator company of his office landline, containing details of all calls made from his office landline on 21 May 2019. It appears from the document that no calls were made to the applicant’s number on that day. The Government Agent also submitted an affidavit from the security agent who had been on duty in the hall of the Ministry of Justice on 21 May 2019, according to which the applicant (who is a well-known person in Moldova) had not been seen at the Ministry of Justice on that day. The Government invited the Court to declare the application inadmissible for abuse of the right of petition.
36. The Court reiterates that, under Article 39 § 2 of the Convention and Rule 62 § 2 of the Rules of Court, friendly-settlement negotiations are confidential. This rule is absolute and does not allow for an individual assessment of how much detail was disclosed (see Čapský and Jeschkeová v. the Czech Republic (just satisfaction), nos. 25784/09 and 36002/09, § 17, 9 February 2017 and Lesnina Veletrgovina d.o.o. v. the former Yugoslav Republic of Macedonia (dec.), no. 37619/04, 2 March 2010). Noting the importance of this principle, the Court further reiterates that it cannot be ruled out that a breach of the rule of confidentiality might, in certain circumstances, justify the conclusion that an application is inadmissible on the grounds of an abuse of the right of application (see, for example, Heldenburg v. the Czech Republic (just satisfaction), no. 65546/09, § 27, 9 February 2017).
37. Having regard to the facts as described above, in particular the statements of the applicant’s wife, who admitted to having learned about the details of the friendly settlement from the letter given to her by the applicant, the Court finds it established that it was the applicant who was at the origin of the disclosure to the media.
38. The Court further notes that the Court’s letter of 5 October 2009 (see paragraph 22 above) addressed to the applicant had made it clear that the nature of all friendly-settlement negotiations was strictly confidential. The applicant was therefore aware of this requirement and should have complied with it. The Court considers that the applicant has failed to advance any convincing reasons for not doing so.
39. In the Court’s view the applicant’s conduct therefore constitutes a breach of the rule of confidentiality, which must also be considered to be an abuse of the right of petition within the meaning of Article 35 § 3 (a). In these circumstances, the application must be rejected as abusive, pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 13 February 2020.
Stanley Naismith Robert Spano
Registrar President
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