SECOND SECTION<\/p>\n
CASE OF M\u0102T\u0102SARU v. THE REPUBLIC OF MOLDOVA
\n(Applications nos. 69714\/16 and 71685\/16)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n15 January 2019<\/p>\n
This judgment will become final in the circumstances set out in Article\u00a044 \u00a7\u00a02 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of M\u0103t\u0103saru v. the Republic of Moldova,<\/p>\n
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:<\/p>\n
Robert Spano, President,
\nPaul Lemmens,
\nLediBianku,
\nJulia Laffranque,
\nValeriuGri\u0163co,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m,
\nIvana Jeli\u0107, judges,
\nand Stanley Naismith, Section Registrar,<\/p>\n
Having deliberated in private on 4 December 2018,<\/p>\n
Delivers the following judgment, which was adopted on that date:<\/p>\n
PROCEDURE<\/p>\n
1.\u00a0\u00a0The case originated in two applications (nos.\u00a069714\/16 and 71685\/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 (\u201cthe Convention\u201d) by a Moldovan national, Mr AnatolM\u0103t\u0103saru (\u201cthe applicant\u201d), on 18 and 19 November 2016.<\/p>\n
2.\u00a0\u00a0The applicant was represented by Mr V. Gribincea and Mr D. Russu lawyers practising in Chi\u0219in\u0103u. The Moldovan Government (\u201cthe Government\u201d) were represented by their Agent, Mr O. Rotari.<\/p>\n
3.\u00a0\u00a0The applicant alleged, in particular, a breach of his right to freedom of expression guaranteed by Article 10 of the Convention.<\/p>\n
4.\u00a0\u00a0On 2 May 2017 the complaints concerning Articles 10 and 11 of the Convention were communicated to the Government and the remainder of application no.69714\/16 was declared inadmissible pursuant to Rule\u00a054 \u00a7\u00a03 of the Rules of Court.<\/p>\n
THE FACTS<\/p>\n
I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n
5.\u00a0\u00a0The applicant was born in 1970 and lives in Chi\u0219in\u0103u.<\/p>\n
6.\u00a0\u00a0The applicant has been involved in numerous protests against alleged acts of corruption and abuse committed by police officers, prosecutors and judges. He was himself the victim of police abuse, ill-treatment and prosecutorial inaction (see M\u0103t\u0103saru and Savi\u0163chi v.\u00a0Moldova, no.\u00a038281\/08, 2\u00a0November 2010). Each year during the professional holiday of the prosecutors or the police he stages protests involving live animals, toilets, caricaturesand masks.<\/p>\n
7.\u00a0\u00a0On 29 January 2013, the professional holiday of prosecutors in Moldova, the applicant conducted a one person demonstration in front of the Prosecutor General\u2019s Office. According to him, the aim of the protest was to draw public attention to the corruption and the control exercised by politicians over the Prosecutor General\u2019s Office. At 10 a.m. he started his protest by installing two large wooden sculptures on the stairs of the Prosecutor General\u2019s Office. The first sculpture represented anerect penis with a picture ofthe face of a high-ranking politician attached to its head. The sculpture had a white collar and a tie and measured two metres. The second sculpture represented a largevulva with pictures of several high\u2011ranking prosecutors between the labia. The applicant also inflated balloons in the form of male genitals and attached them to the nearby trees.<\/p>\n
8.\u00a0\u00a0The demonstration was observed from the beginning by several police officers and numerous journalists approached to interview the applicant. At 11\u00a0a.m. a police van approached, the sculptures were removedby police officersand the applicant was taken to a police station.<\/p>\n
9.\u00a0\u00a0Later the applicant was charged with the criminal offence of hooliganism. The criminal investigation was conducted by a department of the Prosecutor General\u2019s Office whose head\u2019s picture had been attached to the sculpture of the vulva.<\/p>\n
10.\u00a0\u00a0On 2 March 2015 the R\u00e2\u0219cani District Court found the applicant guilty as charged and sentenced him to two years\u2019 imprisonment. The sentence was suspended for a period of three years. In deciding on the sanction to be applied, the court took into consideration the fact that the applicant had previously been sanctioned with fines for similar deeds and that those sanctions had proved to be inefficient. The court considered that the applicant\u2019s deeds had been immoral because he had exposed obscene sculptures in a public place where they could be seen by anyone, including by children. The court based its findings on the statements of several prosecution witnesses who had stated that they had disliked the sculptures exposed by the applicant and had considered them to be indecent and obscene. The court also stated that assimilating public officials with genitals went beyond the acceptable limits of criticism in a democratic society and was therefore not an act protected under Article 10 of the Convention. Moreover, the accusationsmeant to be made by the applicant by means of his protest against the officials concerned lacked a factual basis and had been contrary to the principle of presumption of innocence.<\/p>\n
11.\u00a0\u00a0The applicant appealed against the above decision arguing, inter\u00a0alia, that it ran contrary to his rights guaranteed by Articles 10 and 11 of the Convention.<\/p>\n
12.\u00a0\u00a0On 2 November 2015 the Chi\u0219in\u0103u Court of Appeal dismissed the applicant\u2019s appeal.<\/p>\n
13.\u00a0\u00a0The applicant lodged an appeal on points of law with the Supreme Court of Justice in which he reiterated his position that his conviction had been contrary to the provisions of the Convention and stated that the sculptures had represented a form of artistic expression which was to be protected under Article 10 of the Convention. He reiterated that his protest had been against the corruption within the Prosecutor General\u2019s Office and among high-ranking politicians, a phenomenon which was universally known and did not need to be proved. He also argued that the sculptures exposed by him could not be considered obscene. In any event, at the time of his protest, children were normally at schools and kindergartens. The fact that some of the prosecution witnesses disliked what they saw was not sufficient to hold him responsible for a criminal offence. The applicant admitted that the form of the protest chosen by himhad beenstriking, however he considered this manner of protesting as the only way possible to make himself heard in a society which was oversaturated with subjects of discussion. The applicant finally submitted that the sanction applied to him had been disproportionately harsh and that it had had a chilling effect on him. He pointed to the fact that the first-instance court had admitted to having pursued the goal of discouraging his future involvement in protests. By the application of a suspended sentence, he had in fact been forced to abstain from organising further protests for a period of three years or risk being imprisoned.<\/p>\n
14.\u00a0\u00a0On 20 April 2016 the Supreme Court of Justice dismissed the applicant\u2019s appeal on points of law and upheld the judgments of the lower courts. The decision was notified to the applicant on 19 May 2016.<\/p>\n
II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n
15.\u00a0The relevant provisions of the Criminal Code, as in force at the material time, read as follows:<\/p>\n
Article 287. Hooliganism<\/p>\n
(1) Hooliganism, meaning deliberate actions grossly violating public order, involving violence or threats of violence or resistance to authorities\u2019 representatives or to other persons who suppress such actions as well as actions that by their content are distinguished by an excessive cynicism or impudence, shall be punished by a fine in the amount of 200 [4,000 MDL] to 700 [14,000 MDL] conventional units or by community service for 180 to 240 hours or by imprisonment for up to 3 years.<\/p>\n
16.\u00a0\u00a0The relevant provisions of the Code of Minor Offences, as in force at the material time, read as follows:<\/p>\n
Article 354. Petty hooliganism<\/p>\n
Petty hooliganism, that is, accosting an individual in an offensive manner in a public place or other similar actions that violate moral norms or that disturb public order or the tranquility of an individual shall be punished with a fine of 10 [200 MDL] to 50 conventional units [1000 MDL] or with unpaid community work for 20 to 60 hours.<\/p>\n
THE LAW<\/p>\n
I.\u00a0\u00a0JOINDER OF APPLICATIONS<\/p>\n
17.\u00a0\u00a0The Court notes that the subject matter of the applications (nos.\u00a069714\/16 and 71685\/16) is similar. It is therefore appropriate to join the cases, in application of Rule 42 of the Rules of Court.<\/p>\n
II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 10OF THE CONVENTION<\/p>\n
18.\u00a0\u00a0The applicant complained that his conviction in criminal proceedings for the protest of 29 January 2013 amounted to a breach of his right to freedom of expression guaranteed by Article 10of the Convention and his right to peaceful assembly guaranteed by Article 11 of the Convention. The Court considers that the applicant\u2019s complaint should be examined from the standpoint of Article 10 of the Convention alone, which reads as follows:<\/p>\n
\u201c1.\u00a0\u00a0Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.<\/p>\n
2.\u00a0\u00a0The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.\u201d<\/p>\n
A.\u00a0\u00a0Admissibility<\/p>\n
19.\u00a0\u00a0The Court notes that the applicationis not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n
B.\u00a0\u00a0Merits<\/p>\n
1.\u00a0\u00a0The arguments of the parties<\/p>\n
20.\u00a0\u00a0The applicant maintained that his criminal conviction for the protest of 29 January 2013 had amounted to an interference with his right to freedom of expression. He argued that the interference had not been prescribed by law because Article 287 of the Criminal Code had not been applicable to his situation and that it had not been necessary in a democratic society.<\/p>\n
21.\u00a0\u00a0His protest had concerned a matter of high public interest, namely corruption and abuse within the Prosecutor General\u2019s Office and political control over it. The protest had not been directed against any person in particular and the picture on one of the sculptures hadbeen intended to represent the political elite and on the other the Prosecutor General\u2019s Office. Nevertheless, no judge who had examined the case had taken into consideration the scope of the applicant\u2019s protest.<\/p>\n
22.\u00a0\u00a0There were no schools and kindergartens in the vicinity of the Prosecutor General\u2019s Office. In any event the protest had taken place at a time when children were at schools or kindergartens.<\/p>\n
23.\u00a0\u00a0The applicant argued that it had been open to the authorities to charge him with a less serious offence, namely with the offence of minor hooliganism provided for by Article 354 of the Code of Administrative Offences. According to the judicial practice of the domestic courts only serious offences involving violence were qualified as hooliganism under Article 287 of the Criminal Code. The rest were treated under Article 354 of the Code of Administrative Offences. The authorities had chosen to charge him with a criminal offence in order to silence him and discourage him from continuing his protests.When applying the provisions of Article 287 of the Criminal Code, the judges had chosen the harshest punishment possible, imprisonment.<\/p>\n
24.\u00a0\u00a0The Government submitted that the interference with the applicant\u2019s right to freedom of expression had been necessary because the sculptures exposed by him had been morally offensive to others. According to the Government, the sculptures had been placed close to a busy road where public transportation circulated and unwarned members of the public could see them. Moreover, there were schools and kindergartens in the vicinity and children could also be exposed to the applicant\u2019s obscene sculptures.<\/p>\n
25.\u00a0\u00a0The Government further submitted that the authorities had not banned the applicant\u2019s demonstration. The applicant had been allowed to hold his protest for approximately one hour, until it had becomeclear that due to its obscene nature itviolated public order.<\/p>\n
26.\u00a0\u00a0Besides the fact that the applicant had violated the norms of morally acceptable behaviour, he had also brought baseless accusations against public officials by having assimilated them to genitalia. For all the above reasons, it had been necessary for the authorities to put an end to the applicant\u2019s demonstration and to impose a sanction on him.<\/p>\n
27.\u00a0\u00a0As to the severity of the sanction, the Government argued that the sanction imposed on the applicant had not been too harsh. According to them, such a sanction had been necessary because the applicant had previously been convicted of similar offences and punished with a fine, a sanction which had not had the desired effect on the applicant\u2019s behaviour.<\/p>\n
2.\u00a0\u00a0The Court\u2019s assessment<\/p>\n
28.\u00a0\u00a0The Court reiterates that freedom of expression, as secured in paragraph 1 of Article 10 of the Convention, constitutes one of the essential foundations of a democratic society, indeed one of the basic conditions for its progress and for the self-fulfilment of the individual. Subject to paragraph 2, it is applicable not only to \u201cinformation\u201d or \u201cideas\u201d that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any section of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no \u201cdemocratic society\u201d.<\/p>\n
29.\u00a0\u00a0The Court has also held that opinions, apart from being capable of being expressed through the media of artistic work, can also be expressed through conduct. For example, it has considered that the public display of several items of dirty clothing for a short time near Parliament, which had been meant to represent the \u201cdirty laundry of the nation\u201d, amounted to a form of political expression (see Tat\u00e1r and F\u00e1ber v. Hungary, no. 26005\/08 and 26160\/08, \u00a7 36, 12 June 2012). Likewise, it has found that pouring paint on statues of Ataturk was an expressive act performed as a protest against the political regime at the time (see Murat Vural v. Turkey, no. 9540\/07, \u00a7\u00a7 54-56, 21 October 2014). Detaching a ribbon from a wreath laid by the President of Ukraine at a monument to a famous Ukrainian poet on Independence Day has also been regarded by the Court as a form of political expression (see Shvydka v. Ukraine, no.\u00a017888\/12, \u00a7\u00a7 37-38, 30 October 2014).<\/p>\n