European Court of Human Rights

 

 

SECOND SECTION

CASE OF MĂTĂSARU v. THE REPUBLIC OF MOLDOVA

(Application no. 53098/17)

 

 

 

 

 

JUDGMENT

STRASBOURG

30 November 2021

 

 

 

This judgment is final but it may be subject to editorial revision.

In the case of Mătăsaru v. the Republic of Moldova,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Carlo Ranzoni, President,
          Valeriu Griţco,
          Marko Bošnjak, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 53098/17) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Anatol Mătăsaru (“the applicant”), on 15 July 2017;

the decision to give notice to the Moldovan Government (“the Government”) of the complaints concerning Articles 5 § 1 and 10 of the Convention and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 9 November 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  This case concerns the applicant’s arrest and detention for three days followed by his conviction for organising a one person protest in front of the Anticorruption Prosecutor’s Office involving a toilet seat and simulation of using it.

THE FACTS

2.  The applicant was born in 1970 and lives in Chișinău. He was represented by Mr V. Vieru, a lawyer practising in Chișinău.

3.  The Government were represented by their Agent, Mr O. Rotari.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  The 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 Mătăsaru and Saviţchi v. Moldova, no. 38281/08, 2 November 2010). He has made a tradition of staging each year during the professional holiday of the prosecutors or the police protests involving live animals, sculptures, caricatures and masks (see Mătăsaru and Saviţchi, cited above, and Mătăsaru v. the Republic of Moldova, nos. 69714/16 and 71685/16, 15 January 2019). His protests were usually very colourful and shocking and attracted much attention from the media.

6.  On 28 January 2016, the professional holiday of prosecutors in Moldova, the applicant conducted a one person demonstration in front of the Anticorruption Prosecutor’s Office. According to him, the aim was to protest against the lack of action of the Office in respect of a complaint lodged by him about an alleged bribe requested from him by officials from the Chișinău Mayor’s Office. In his explanation given to a journalist before the protest, he stated that his intention had been to stage a performance based on the saying “să mă cac în el/ea de...”, which translates as “makes me want to shit on it” and which is said to express a severe form of frustration or abandonment of hope in respect of something which is really bad.

7.  At 10.20 a.m. he entered the building of the Anticorruption Prosecutor’s Office holding a camera in one hand and approached the duty officer in the lobby of the institution, telling him: “I wanted to take a shit in the Prosecutor’s Office, may I take a shit in the Prosecutor’s Office”?! After receiving a negative answer, he said: “Then I will do it outside”. He then went to his car, which was parked in front of the building, and took out a toilet seat and a large sculpture of a pile of excrement with a small white flag on top of it. He placed both items on the stairs of the building, pulled down his trousers and underpants, which according to the applicant were part of the decor, and sat on the seat, pretending to be using it. While sitting on the toilet seat with his trousers around his ankles and his underpants around his knees, he was holding a banner with the inscription “Protest” and blew a whistle. The duty officer came out of the building and inquired as to what was going on. The applicant explained to him that he was holding a protest, at which the duty officer attempted to convince him to stop his actions and to leave the premises, but without any success. He then went back into the building and called the police. The applicant’s performance lasted for some ten minutes and was filmed by two journalists on the ground and by a drone in the air operated by someone else. No private parts of the applicant’s body are visible in the video footage of the event. The police arrived after the applicant had already left the scene of his protest.

8.  The next day, on 29 January 2016, at noon, a group of some ten police officers went to the applicant’s house and arrested him. He was placed in detention for seventy-two hours on suspicion of having committed the offence of hooliganism provided for by Article 287 of the Criminal Code. The minutes of his arrest stated as reasons for his detention the fact that he was suspected of having committed an offence by having protested in a vulgar manner in front of the Anticorruption Prosecutor’s Office. He had also addressed wanton words to the duty officer after which he had taken off his trousers and underpants and sat on a toilet seat in a public place. In view of his personality and background, the applicant was considered likely to abscond, hinder the investigation or reoffend.

9.  Prior to the expiry of the seventy-two hours of detention, the prosecutor in charge of the case applied to the competent district court to have the applicant remanded in custody for a period of thirty days.

10.  On 1 February 2016 the Buiucani District Court dismissed the prosecutor’s application for the applicant’s remand in custody. It found, inter alia, that there were no relevant and sufficient reasons to believe that the applicant would abscond, reoffend or hinder the investigation. The applicant was released on the same day, but about twenty minutes after the expiry of the seventy-two hours provided for by law. The prosecutor appealed against this decision. However, on 11 February 2016 the Chișinău Court of Appeal dismissed his appeal.

11.  In the meantime, the applicant lodged a criminal complaint against the actions of the persons who had ordered his detention on 29 January 2016, arguing that his detention had been abusive and unlawful. However, his complaint was finally dismissed by a decision of the Chișinău Court of Appeal of 18 January 2017.

12.  On 20 March 2018 the Buicani District Court examined the merits of the criminal charge against the applicant and decided to discontinue the proceedings because the actions committed by him were not so serious as to constitute a criminal offence under the Criminal Code. The court considered that the simulation of defecation in a public place and the wanton words addressed to the duty officer affected public order and morality and were offensive to the Anticorruption Prosecutor’s Office. The court recalled the Court’s case-law according to which there is a public interest in judges and prosecutors enjoying public confidence and that it might, therefore, be necessary to protect them from unjustified attacks. The court considered that there was no justification for the applicant’s criticism of the Anticorruption Prosecutor’s Office and found him guilty of having committed the misdemeanour provided for by Article 354 of the Code of Minor Offences. At the same time, the court discontinued the proceedings against him due to the expiry of the legal time-limit for liability under the Code of Minor Offences. Before reaching its decision, the court heard the applicant and several witnesses, among whom was the duty officer who was in the lobby of the Anticorruption Prosecutor’s Office on the day of the applicant’s protest. He stated inter alia that he did not consider that the applicant’s actions had violated any of his rights and that he did not consider himself a victim of the applicant’s actions. He also stated that he had not seen any private parts of the applicant’s body and expressed the view that the word “shit” employed by him was a licentious word. He also stated that it was possible that the noise made by the applicant had perturbed those around him. He also submitted that he had not allowed the applicant to enter the building because there was no public toilet there.

13.  Both the applicant and the prosecutor appealed against the above judgment, but later the prosecutor withdrew the appeal. The withdrawal was motivated by the adoption by the Court of a judgment in a similar case, Mătăsaru v. the Republic of Moldova (cited above).

14.  By a final judgment of the Supreme Court of Justice of 26 June 2019 the solution adopted by the Buiucani District Court on 20 March 2018 was upheld.

RELEVANT LEGAL FRAMEWORK

15.  The relevant provisions of the Criminal Code, as in force at the material time, read as follows:

Article 287. Hooliganism

(1)  Hooliganism, meaning deliberate actions grossly violating public order, involving violence or threats of violence or resistance to authorities’ 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.

(2)  The same deed committed by:

a)  a person who had previously committed an act of hooliganism;

b)  two or more persons

shall be punished by a fine in the amount of 400 [8,000 MDL] to 1000 [20,000 MDL] conventional units or by imprisonment of up to 5 years; ...

16.  The relevant provisions of the Code of Minor Offences, as in force at the material time, read as follows:

Article 354. Petty hooliganism

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 tranquillity 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.

17.  The relevant provisions of the Code of Criminal Procedure read as follows:

Article 166. Reasons for arresting a person suspected of having committed a criminal offence

(1)  The investigation body has the right to arrest a person if there is a reasonable suspicion that he or she committed an offence punishable with imprisonment of more than one year, only in the following cases:

1)  if the person is apprehended in flagrante delicto;

2)  if a witness or the victim indicate that this very person has committed the offence;

3)  if obvious traces of the offence are found on the suspect’s body or clothes, or in his or her house or car;

...

(5)  The arrest of a person in the conditions of the present article cannot last longer than 72 hours.

...

(7)  A person arrested within the conditions of the present article shall be brought as soon as possible, but before the expiry of the time limit indicated in paragraph (5) ..., before an investigation judge in order for the latter to decide on the matter of his or her remand in custody or release ...

18.  The relevant provisions of Law No. 1545 on compensation for damage caused by the illegal acts of the criminal investigation organs, prosecution and courts have been set out in Sarban v. Moldova, no. 3456/05, § 54, 4 October 2005.

THE LAW

I.         ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

19.  The applicant complained that his detention and his being found guilty of a minor offence for the protest of 28 January 2016 amounted to a breach of his right to freedom of expression guaranteed by Article 10 of the Convention, which reads as follows:

“1.  Everyone 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.

2.  The 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.”

A.    Admissibility

20.  The Government submitted that the prosecutor’s withdrawal of his appeal against the judgment of 20 March 2018 (see paragraph 12 above) and the requalification of the actions imputed to the applicant from a criminal offence to a misdemeanour amounted to the dropping of criminal charges against him and to an acknowledgement of the infringement of his rights. The applicant was therefore entitled to initiate proceedings under Law No. 1545 and claim compensation from the State. Since he had not done so, he had failed to exhaust domestic remedies and his application should be dismissed for non-exhaustion of domestic remedies.

21.  The applicant disagreed and argued that it was not open to him to initiate proceedings under Law No. 1545 because the charges against him had not been dropped but merely requalified under the provisions of the Code of Minor Offences and he had eventually been found guilty.

22.  The Court notes with the applicant that the conditions set out in Section 3 of Law No. 1545 have not been met because the applicant was found guilty, even if no punishment was imposed on him. Therefore, the remedy suggested by the Governent was not effective in the present case and their objection must be dismissed.

23.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

1.     The arguments of the parties

24.  The applicant submitted that the interference with his right to freedom of expression had not been prescribed by law and had not been necessary in a democratic society. He argued that in finding him guilty of a misdemeanour, the courts had failed to make a proportionality test. The fact that the Anticorruption Prosecutor’s Office is on the main street of Chișinău and that the applicant’s protest could be seen by many people was not a justification for the interference. The applicant also submitted that his detention for more than seventy-two hours had pursued the purpose of punishing him and hindering him from organising another protest the next day in front of the Prosecutor General’s Office, a protest which he had announced on his Facebook page.

25.  The Government disagreed and submitted that the interference had been prescribed by law, had pursued the legitimate aim of protecting morals and had been necessary in a democratic society. In so far as the necessity of the interference was concerned, the Government submitted that the least serious punishment had been applied to the applicant, namely his being found guilty of a misdemeanour without any sanction being applied. According to the Government, the courts took into consideration the fact that the applicant had made an indecent exhibition in a public place on the main street of Chișinău where he could be seen by many people, including by children. At the same time, they submitted that the dropping of the criminal charges against the applicant amounted to an acknowledgement of the infringement of his rights.

2.  The Court’s assessment

26.  The 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 “information” or “ideas” 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 “democratic society”.

27.  The 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 “dirty laundry of the nation”, amounted to a form of political expression (see Tatár and Fáber v. Hungary, no. 26005/08 and 26160/08, § 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, §§ 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. 17888/12, §§ 37-38, 30 October 2014).

28.  In Maria Alekhina and Others v. Russia (no. 38004/12, 17 July 2018) the Court examined the actions of the Pussy Riot punk band (who attempted to perform a song from the altar of Moscow’s Christ the Saviour Cathedral against Vladimir Putin and in response to the ongoing political process). It considered their actions, described by them as a “performance”, to constitute a mix of conduct and verbal expression which amounted to a form of artistic and political expression and that it was to be protected as such.

29.  It is not disputed in the present case that the applicant’s performance constituted an act of expression of his opinion about the activity of the Anticorruption Prosecutor’s Office and thus that it amounted to a form of speech covered by Article 10 of the Convention. It is similarly undisputed that there has been an interference with the applicant’s right to freedom of speech. Such interference will constitute a breach of Article 10 of the Convention 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.

30.  As regards the issue whether the interference in question was prescribed by law, in view of its findings below, the Court considers it unnecessary to decide it. Furthermore, the Court is prepared to accept that the interference in question pursued the legitimate aim of protecting morals.

31.  The test of whether the interference complained of was “necessary in a democratic society” requires it to determine whether it corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued, and whether the reasons given by the national authorities to justify it are relevant and sufficient. In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression, as protected by Article 10 of the Convention (for an analysis of the relevant principles in more detail, see Gündüz v. Turkey, no. 35071/97, § 38, ECHR 2003‑XI; Murphy v. Ireland, no. 44179/98, §§ 65-69, ECHR 2003‑IX (extracts), including the further references cited therein; Aydın Tatlav v. Turkey, no. 50692/99, §§ 22‑27, 2 May 2006; and Giniewski v. France, no. 64016/00, §§ 43-54, ECHR 2006‑I).

32.  The Court notes that the applicant was first charged with an offence provided for by the Criminal Code and placed in detention on that account only to be eventually found guilty of petty hooliganism. His being found guilty was based on the fact that during his protest in front of the Anticorruption Prosecutor’s Office he had used a licentious expression in addressing the duty officer (see paragraph 7 above) and because he had simulated defecation in a public place, thus offending the passers-by and insulting the institution of the Anticorruption Prosecutor’s Office.

33.  The Court notes that the applicant’s intention was to draw attention to problems in the activity of the Anticorruption Prosecutor’s Office, a topic which could be considered of public interest. The wanton words used by him in addressing the duty police officer were not intended to insult him but were part of his performance. Indeed, the duty police officer declared during the court proceedings that he did not feel insulted by the applicant’s words (see paragraph 12 above). The Court agrees that the performance executed by the applicant was very extravagant and could be considered shocking or disturbing to some. Nevertheless, nobody during the domestic proceedings and in the proceedings before the Court questioned the fact that it was a mere performance and that there was no indecent exposure on the applicant’s part. Moreover, the applicant’s performance was very short and only lasted for some ten minutes, the minimum time needed to have it recorded by the journalists present. He did not insult any prosecutor, but only took issue with the work of the institution. The goal sought by him when having recourse to such extravagant methods appears to have been achieving a strong media impact and he appears to have been successful in that respect.

34.  In view of the above, the Court considers that in the circumstances of the present case no justification no justification was provided for the interference with the applicant’s right to freedom of expression. The treatment applied to him, by its very nature, not only had negative repercussions on the applicant but it could also have a serious chilling effect on other persons and discourage them from exercising their freedom of expression and it did not correspond to the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. Thus, the interference with the applicant’s right to freedom of expression cannot be regarded as proportionate and the reasons provided cannot be regarded as sufficient. Consequently, it was not “necessary in a democratic society”.

35.  Accordingly, there has been a violation of Article 10 of the Convention.

II.      ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

36.  The applicant alleged that his detention between 29 January and 1 February 2016 had not been lawful, it had not been based on reasonable suspicion that he had committed an offence and had been arbitrary. The relevant parts of Article 5 § 1 of the Convention read as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”

A.         Admissibility

37.  For the reasons mentioned in paragraph 22 above the Court considers that this complaint is not inadmissible within the meaning of Article 35 § 3 of the Convention. It must therefore be declared admissible.

B.          Merits

1.                The arguments of the parties

38.  The applicant argued that there was no reasonable suspicion that he had committed the offence imputed to him and that the real goal of the prosecutors was to punish him for his protest and to prevent him from organising another protest announced by him for the next day. He submitted that the lack of reasonable suspicion, the unlawfulness and the arbitrariness of his detention was confirmed by the courts which decided that Article 287 of the Criminal Code was not applicable to the facts of the case and requalified the case under Article 354 of the Code of Minor Offences.

39.  The applicant also submitted that according to the provisions of Article 25 of the Constitution and the Code of Criminal Procedure, seventy-two hours was the maximum duration of detention without a judicial decision. However, in breach of those provisions, he had been detained for seventy-two hours and twenty minutes.

40.  The Government argued that there had been a reasonable suspicion that the applicant had committed the offence provided for by Article 287 of the Criminal Code. They also argued that there was a risk of his absconding.

2.  The Court’s assessment

41.  Article 5 of the Convention is, together with Articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of the individual, and as such its importance is paramount. Its key purpose is to prevent arbitrary or unjustified deprivations of liberty (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 84, ECHR 2016 (extracts), with further references).

42.  Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see, among other judgments, Creangă v. Romania [GC], no. 29226/03, § 84, 23 February 2012).

43.  Turning to the facts of the present case, the Court considers that the main issue to be determined is whether the applicant’s detention in the circumstances of the case was devoid of arbitrariness within the meaning of Article 5 § 1 of the Convention. The Court recalls at the outset its finding in paragraph 34 above that the applicant’s actions amounted to protected speech under Article 10 of the Convention and that there was no justification for the interference with the applicant’s right to freedom of expression. That finding is sufficient for holding that the applicant’s detention in such circumstances cannot be regarded as devoid of arbitrariness. The Court also notes that the applicant’s arrest was only possible because of the initial charge, which was later requalified, despite the lack of any violence or resistance, and that the applicant was arrested more than 24 hours later.

44.  In view of the above and taking into consideration its findings in respect of the applicant’s complaint under Article 10 of the Convention, the Court reaches the conclusion that the applicant’s detention for more than three days was arbitrary within the meaning of Article 5 § 1 of the Convention.

45.  There has accordingly been a violation of Article 5 § 1 of the Convention.

III.   APPLICATION OF ARTICLE 41 OF THE CONVENTION

46.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.    Damage

47.  The applicant claimed 18,000 euros (EUR) in respect of non‑pecuniary damage.

48.  The Government contested the amount of non-pecuniary damage claimed by the applicant, alleging that it was excessive.

49.  The Court considers that the applicant must have suffered stress and frustration as a result of the violations found and awards him EUR 5,850 in respect of non-pecuniary damage.

B.    Costs and expenses

50.  The applicant also claimed EUR 1,800 in respect of the costs and expenses incurred before the Court.

51.  The Government considered this amount excessive.

52.  Regard being had to the documents in its possession, the Court considers it reasonable to award the entire amount claimed for costs and expenses.

C.    Default interest

53.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 10 of the Convention;

3.      Holds that there has been a violation of Article 5 § 1 of the Convention;

4.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 5,850 (five thousand eight hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,800 (one thousand eight hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 30 November 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 {signature_p_2}

   Hasan Bakırcı                                                                      Carlo Ranzoni
Deputy Registrar                                                                       President