Report: Freedom of Assembly in the Transnistrian Region of the Republic of Moldova

Capacity Building for and Promotion of Human Rights and Democratic Institutions in the Transnistria Region of Moldova

REPORT Freedom of assembly in the Transnistrian region of the Republic of Moldova.

Object of constitutional regulation and influence of external factors.

Chisinau - 2012

Author: Alexandru Postica Edition coordinators Pavel Postica Ion Manole

PROMO–LEX Association 11/41Dumitru Riscanu St, Chisinau, Moldova Tel./fax: 00 373 22 450024 E-mail: info@promolex.md www.promolex.md Address for correspondence: C.P. 89, MD-2012 Chişinău, Moldova Center of Resources for Human Rights – CREDO 95A Al. Hâjdău St, Chisinau, MoldovaTel: 00 373 22 212816 Fax: 00 373 22 225257 E-mail: credo@credo.md www.credo.md

This project is funded by the European Union EU Delegation to Moldova Tel: 00 373 22 505210 Fax: 00 373 22 272622

The contents of the report reflects the views and opinions of the author and in no way reflect the official opinion of the donor organization.

CONTENTS

Summary ................................................................................................... 4

Introduction............................................................................................... 5

1. Freedom of assembly as object of constitutional regulation in the Republic of Moldova................................................................................ 6

2. Legal norms applicable to the Transnistrian region of the Republic of Moldova..................................................................................................... 8 2.1 Status of the region in the constitutional framework 2.2 Observations on the non-enforcement of the national legislation in the Transnistrian region

3. Correspondence of principles on assemblies regulated in the national legislation with those applied in the Eastern region.............................12 3.1 3.2 3.3 3.4

proportionality; non-discrimination; legality; presumption in favour of holding assemblies

4. Analysis of results................................................................................... 18

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SUMMARY The goal of this survey is to analyze the enforcement of the constitutional provisions of the Republic of Moldova as regards assemblies in the Transnistrian region. Labelling the eastern region of the Republic of Moldova as separatist and uncontrolled drives away any talks on a special status that may be assigned to this region. As a matter of fact, this status has been functioning for years. The lack of lawful representatives of the population from the region is a problem, since the quality of leader of the present representatives is disputable as they are not elected in a democratic and transparent manner. Regardless of the current situation in the eastern part of the Republic of Moldova, nobody has excluded the region from the Republic of Moldova either territorially or constitutionally, and nobody has cancelled everyone’s obligation to observe the national legislation and to bear responsibility for the committed violations and transgressions. Accordingly, it should be taken into account that the observance of human rights on this territory is everybody’s task, and the fact that the Transnistrian region is not under the control of the Republic of Moldova should prompt us to find solutions in order to protect these rights.

Within the limits of the laws regulating the settlement of the Transnistrian issue, special attention should be paid to the fulfilment of the civil and political rights of this region’s residents, which are guaranteed by the Republic of Moldova and the international acts and treaties to which the Republic of Moldova is party. The survey is based on an analysis of the constitutional regulations on assemblies of the Republic of Moldova and the mechanism for fulfilling them in the region. To carry out the investigation, the authors used elements of the legislation compared with the legislation of the Russian Federation, as well as its compatibility with the provisions of the fundamental international documents.

They also used conclusions by international rapporteurs and organizations dealing with the issue. The research comes to point out problems in the fulfilment of the right to freedom of assembly in the region and, as a result, to create mechanisms and put forward solutions to guarantee these rights. It is beyond doubts that the right to assembly is a fundamental one in the category of political rights, just like the right to freedom of expression. The study will contribute to drawing conclusions and forming opinions for researchers, representatives of civil society and central and local public authorities.

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INTRODUCTION This report is a research on the implementation of the principle of free assemblies in the Transnistrian region of the Republic of Moldova. The research is topical taking into account the fact that the principles of rights of another state – the Russian Federation, which has an overwhelming influence on the region – are implemented in the eastern districts of the Republic of Moldova.

Accordingly, the goal of this research is to draw the attention of the national and international community to the risks posed by the existence of two legislations on the sovereign territory of the Republic of Moldova, which are incompatible in many respects – the legislation of the Republic of Moldova and the one of the Russian Federation.

Although formally some provisions of the special law regulating assemblies passed by the Parliament of the Republic of Moldova are taken over by the so-called legislation of the Transnistrian region, this does not hinder the self-proclaimed leaders from taking actions to impede assemblies, imposing bureaucratic barriers in this respect. We should point out the socalled process of adjusting the region's legislation to the legislation of the Russian Federation.

The evolution of the right to freedom of assembly in the Russian Federation shows that one of the most important civil and political rights has been continuously degrading.

This report does not claim to be an exhaustive study because its authors had limited access to statistics and other public policy programmes of the separatist leaders, and the "official" sources do not provide a full image. Accordingly, the research was based on reports by international bodies, on the legislation and comments to the norms of the Russian Federation and of the Republic of Moldova, as well as on an analysis of the provisions of the local documents adopted by the breakaway leaders that regulate certain assembly-related sectors.

As the United Nations Special Rapporteur on assembly issues, Maina Kiai1 said, the right to freedom of assembly serves as a vehicle to many other civil, economic, social and political rights2. This right is an essential part of democracy and ensures people's right to express their political opinions, to be involved in more social, cultural and artistic events, to join unions and associations, to choose their leaders who should represent their interests and to call them to account, etc. Accordingly, the rights to freedom of speech and assembly should be guaranteed if one wants to settle the Transnistrian issue and democratize the eastern region.

To this end, the constitutional authorities, as well as those who actually manage this territory should assume the obligation to respect the human rights and freedoms.

The research comes to continue an analysis of the formal provisions of the so-called legislation of the Transnistrian region. Nevertheless, its goal does not reside in producing a comprehensive analysis of the so-called local legislation. The goal of this study is to present arguments in favour of avoiding the involvement of external factors in the norms of conduct in the region to the actors involved in the Transnistrian conflict settlement, and to point out the need to adjust all the norms of conduct in the region to the constitutional norms of the Republic of Moldova. The study is carried out within the project "Promoting democratic values and the observance of human rights in the Transnistrian region of the Republic of Moldova, and building capacities of the institutional actors involved in the process", which is financed by the European Union Delegation.

1 2

Mr. Maina Kiai, the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association.

Report of the special rapporteur on the right to assembly, published on 21.05.2012, A/HRC/20/27.

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Chapter 1 FREEDOM OF ASSEMBLY AS OBJECT OF CONSTITUTIONAL REGULATION Article 20 of the Universal Declaration of Human Rights (1948)3, as well as Article 21 of the International Covenant on Civil and Political Rights (1966) 4 guarantee that "every person has the right to peaceful assembly and association", and that "the right to peaceful assembly is recognized". According to Article 21 of the international covenant, "no restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others".

These principles are stipulated by the Constitution of the Republic of Moldova too5.

Thus, according to Article 32 of the Fundamental Law of the Republic of Moldova (hereinafter referred to as Constitution), the freedom of thinking, of opinion, as well as the freedom of expression through words, image or other means possible are guaranteed for every person. The fundamental freedom of peaceful assemblies is obviously associated with the freedom of expression.

As a component part of the right to freedom of speech, the freedom of assembly is protected separately. Thus, according to Article 40 of the Constitution of the Republic of Moldova, rallies, demonstrations, processions and any other kind of assemblies shall be organized only peacefully without any weapons whatsoever. Although the Constitution does not require a special law regulating this right, since the proclamation of independence, the Parliament twice adopted legislative acts regulating the way of organizing and holding assemblies. Thus, the first legislative act – the Law on the organization and holding of assemblies - was adopted in 19956 and was implemented during 13 years.

The deficiencies of this law were noticed inclusively after the European Court of Human Rights delivered a series of rulings condemning the Republic of Moldova (see the rulings in the cases Hyde Park 2, 3, 4, 5, 6, PPCD, Secareanu, Rosca vs. Moldova).

Consequently, the Moldovan lawmakers passed a new law on 22.02.2008 – the Law on assemblies7.

This legislative document provides a clear definition of the notion of "assembly".

According to Article 3 of the law, "assembly" means "temporary and deliberate presence of a group of people gathered together in order to express an idea or attitude". But the temporary gathering of a group of people is not always intended to express some ideas or attitudes.

Accordingly, not every gathering of people in public space is regarded as assembly.

At the same time, the new law approaches the notion in a generalized manner, offering a brief classification of assemblies: assemblies with a low number of people, spontaneous

3 4 5 6 7

Adopted by the UN General Assembly on10 December 1948. The Republic of Moldova joined the Universal Declaration of Human Rights by Parliament’s Decision No 217 of 28.07.1990, published on 30.08.1990.

The International Covenant on Civil and Political Rights which the Republic of Moldova ratified by Parliament’s Decision No 217 of 28.07.1990, published on 30.08.1990.

Constitution of the Republic of Moldova, adopted on 29.07.1994, published in Monitorul Oficial No 1/1994 of 18.08.1994; Law on the organization and holding of assemblies No 560 of 21.07.1995 published on 02.11.1995.

Law on assemblies No 26 of 22.02.2008, published on 22.04.2008.

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assemblies and simultaneous assemblies. This classification allows for a regulation distinct from the general one8.

An assembly with a low number of people means an assembly attended by less than 50 people. A spontaneous assembly means an assembly that was initiated and developed as a direct and prompt reaction to events in society and which, from the viewpoint of participants, cannot be postponed taking into account the topicality of events. Ultimately, the notion of simultaneous assemblies covers the situations when several organizers hold assemblies on the same venue and at the same time. It is worth mentioning that simultaneous assemblies do not include counter rallies, which come as a reaction to ongoing or forthcoming assemblies.

The assemblies with a low number of participants and the spontaneous assemblies are not subjected to such preliminary procedures as the submission of a request to the city hall/mayoralty where the assembly takes place. The UN special rapporteur welcomed this aspect as a practice worth being taken over by other states. The rapporteur noted that it was not necessary to inform the local authorities about the holding of assemblies with a low number of people and spontaneous assemblies9. This approach fits into the ODIHR comments10 that notifications should be submitted only for large-scale rallies and rallies that might disturb the road traffic.

Defining the main principles of holding assemblies is another important element. The provisions of the law shall be enforced namely by strengthening these principles. Thus, Article 4 of the law defines the principles of: proportionality, non-discrimination, lawfulness and presumption in favour of holding assemblies. The observance of these principles will contribute to avoiding cases of abuse on the part of the authorities against the organizers and participants in peaceful assemblies.

As regards forbidden assemblies, Article 8 of the law comprises a comprehensive list of reasons for prohibiting an assembly, particularly: assemblies whose goal is to instil to aggression, to national, racial, ethnic or religious hatred; incite to discrimination of public violence; undermine national security of the territorial integrity of the country; commit crimes, violate public order, organize mass turmoil, breach public morals, the rights and freedoms of other people or those that endanger their lives and health.

It is important to mention that assemblies may be forbidden only on the basis of court rulings. The court ruling is pronounced in the event that the prohibition is the last action and that other kinds of measures shall not be allowed.11

8 Please see Article 11 and Article 12 of the Law No 26-XVI of 22.02.2008; 9 Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, paragraph 28, A/HRC/20/27, 21.05.2012.

10 Guidelines on Freedom of Peaceful Assembly, p. 63, ODIHR, OSCE. 11 Guidelines on Freedom of Peaceful Assembly, p. 59.

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Chapter 2.

LEGAL NORMS APPLICABLE TO THEAPPLICABLE TO THE TRANSNISTRIAN REGION OF THE REPUBLIC OF MOLDOVA 2.1 Status of the region within the constitutional framework We deem it unfair to discuss the legal system applicable to the eastern region of the Republic of Moldova without reviewing in several theses the conditions in which this entity was created and has existed.

Thus, the beginning of the self-proclaimed Moldovan Transnistrian republic goes back to the collapse of the USSR. In the early 1990s, groups of pro-Russian separatists organized a breakaway regime having all the attributes of a state. The relations of coordination with and subordination to the lawful bodies based in capital Chisinau were completely ceased once military attacks started in the spring of 1992. To put an end to the military operations, the Russian Federation and Moldova signed a ceasefire agreement on 21.07.1992.

The Organization for Security and Cooperation in Europe jointly with the Russian Federation and Ukraine attempted to mediate the conflict between the Republic of Moldova and the breakaway region. Also, the Joint Control Commission was set up to monitor the observance of the 1992 ceasefire agreement. In September 2005, the USA and the European Union were invited to join the negotiations as observers.

In spite of the talks held over the past 20 years, the sides failed to ensure the observance of the rights of people residing in the region. The residents of the Transnistrian region are kept out of the political life of the sovereign state. They cannot participate freely in the free elections held all over the Republic of Moldova. Although the separatist regime has bodies similar to the ones of a state, no country has ever recognized the sovereignty and independence of the region. According to topic-related reports, the authentic civil and political reports are not truly respected.

Requests to assign wide autonomy to the separatist region did not facilitate an efficient cooperation with the constitutional authorities of the Republic of Moldova. The selfproclaimed leaders have defied the provisions of the Constitution and of the national legislation. The so-called spying files instituted in 2010 against a number of people condemned for alleged cooperation with the security bodies from Chisinau are an eloquent example in this respect. Actually the Tiraspol administration wanted to prove that they were not set to respect the constitutional legislation, on the one hand, and to instil fear in people, on the other hand. Notwithstanding this, the negotiating process saw some progress, the most important one being the release of the so-called political prisoners.

Thus, despite the financial and political support of the Russian Federation 12, the involvement of the international community in the situation of human rights, at the end of the day, prompted the local administration to stop violating certain rights.

The Tiraspol administration has been promoting an aggressive policy, reasoning it by the fact that the Republic of Moldova has been subjecting the region to sanctions and putting pressure on it, and that their right to self-determination is violated. But the situation is quite the opposite. The national legislation provides for a string of guarantees and rights for the 12 Please see the ruling on the case Catan and Others (§§ 78 to 82, 85 and 86) and the ruling on the case Ivantoc versus Moldova and Russia (paragraph 116).

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population from the left bank of the Dniester River. According to Article 110 paragraph 1 of the Constitution of the Republic of Moldova, the territory of the Republic of Moldova is administratively divided into villages, cities, districts and the autonomous territorial entity of Gagauzia. The populated areas from the left bank of the Dniester River may be assigned special forms of autonomy in line with the special status adopted by an organic law.

At the same time, according to the Law on the main provisions of the special legal status of the populated areas from the left bank of the Dniester (Transnistria) 13, the negotiating process will focus on the joint elaboration and adoption of the organic Law of the Republic of Moldova on the special legal status of Transnistria as soon as the demilitarization conditions stipulated in the Parliament Decision No 117-XVI of 10 June 2005 are met, in particular the fulfilment by the Russian Federation of the commitments assumed at the OSCE Summit in Istanbul (1999) as regards the complete, urgent and transparent pullout of its troops and armament from the territory of the Republic of Moldova, and subsequently, the creation of a system of democratically elected government in Transnistria.

So, the Moldovan Parliament conditioned the assigning of the autonomy status to the eastern region on the fulfilment of the international commitments assumed by a third state – the Russian Federation. At the same time, the Parliament did not rule out the possibility for the new lawmaking body of the region to adopt laws of local importance and other regulations within its remit. It is important to say that these documents should not run counter to the constitutional legislation.

The lawfulness of the leaders of the Transnistrian region is questioned because of the doubtful existence of a democratic and transparent procedure of empowering them to represent a part of the population and to adopt documents. Should this conflict be settled, the situation created will make it possible for the so-called parliament of the autonomy to be assigned the right to adopt certain documents of local importance. In this context, we do not rule out that there will be attempts to put in practice the same norms of conduct adopted over these years, most of which are essentially in breach of the national legislation. Therefore, it is necessary to prevent the implementation of certain acts that are clearly in breach of the national legislation.

2.2 Observations on the non-enforcement of the national legislation in the Transnistrian region There are several reasons for the non-enforcement of the legislation of the Republic of Moldova in the breakaway region, with the political reasons predominating. Over the past 20 years, the idea that the Republic of Moldova is an aggressor state has been promoted in the region. Accordingly, all relations with the Republic of Moldova were to be rejected, let alone the enforcement of the national legislation in the region.

In the meantime, the emphasis was laid on the idea of the region’s unification with the Russian Federation. Thus, the Transnistrian leaders displayed their full commitment to the values promoted in the Russian society and copied the Russian management model, excepting the administrative territorial organization. In particular, they adjusted the practices of managing money collected by the local administrations, the juridical and law system. It is no secret that most public servants, on the basis of cooperation accords, participate in 13 Law on the main provisions of the special legal status of the the populated areas from the left bank of the Dneister (Transnistria) No 173 of 22.07.2005 published on 29.07.2005.

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traineeships and courses organized in the Russian Federation.

In order to ensure the legislative harmonization with Russia, separatist leader Igor Smirnov on 10 August 2006 passed a decree approving a decision on the creation of an interdepartmental working group in charge of the harmonization of the so-called legislation of the region with the one of the Russian Federation. Subsequently, on 26.06.2007, a concept on the harmonization of the local norms with the legislation of the Russian Federation was adopted on the basis of that decree.

The leaders of the region explained the need for this concept by the results of the socalled referendum on the region’s accession to the Russian Federation which took place on 17.09.2006. It should be said that nobody recognized the referendum as legal, and therefore its results cannot be viewed as authentic display of people’s will. The Tiraspol leader’s decree said that the harmonization does not mean unification given the different status of the form of government and the different budgetary systems. Initially, the Transnistrian leaders proposed that all the branches of the law of general principles should be harmonized and that Russia’s law bodies should be introduced in the local system.

The so-called harmonization of the region’s legislation with the one of the Russian Federation was planned in order to identify all divergences and distinctions, as well as to implement the legislative standards and to assess the quality and topicality of the legislative documents of the Russian Federation.

It is worth mentioning that every legislative document submitted for consideration to the so-called Transnistrian parliament should be backed by a report on its compliance with a similar document of the Russian Federation. The document is not subjected to examination if it is not accompanied by such a report14.

An example of the use of the harmonization process dates back to 2009, when the initiative of those 17, promoted by the current Transnistrian leader, Yevgeniy Shevchuk, which was aimed at amending the so-called constitution of the region in order to cut the powers of the vice president of the region, was bitterly criticized by former leader Igor Smirnov. Back then the region’s supreme soviet had problems because of the alleged defiance of the mechanism for putting forward draft amendments, in particular because of the lack of a report demonstrating compliance with the harmonization process15.

The harmonization plan does not provide for amending and adapting the framework for exercising the civil and political rights, but it does not rule out the possibility of adjusting it to the legislation of the Russian Federation, particularly now that the legislation on assemblies of the Russian Federation has been amended so as to increase the fines imposed on participants in unauthorized rallies (that did not observe the notification procedure). The amendments to the Russian legislation were passed on 5 June 2012 and the Federation Council approved them on 6 June 2012. On 20 June 2012 already, the Russian president promulgated the amendments. Thus, the fines for participation in unauthorized rallies were increased from 1,000 roubles to 300,000 roubles, that is, from about 22 euros to 6,800 euros. Moreover, the amendments set significant fines for holding assemblies others but those mentioned in the authorization and prohibit the organizers from holding other assemblies in the future. These fines equal those set for such grave offences as electoral vote rigging, for instance.

The international community expressed its stance on these amendments, describing 14 “Law on the organization and holding of assemblies”, adopted on 05 December 2002 by the “parliament of the Transnistrian Moldovan republic”, http://zakon-pmr.com/DetailDoc.aspx?document=61204 15 http://www.e-democracy.md/files/guvernare-democratie-04-ru.pdf

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them as inadequate and encroaching on the democratic principles stipulated in the Constitution of the Russian Federation, the European Convention on Human Rights and the International Convention on Civil and Political Rights, as well as the commitments assumed towards the OSCE16. United Nations High Commissioner for Human Rights Navi Pillay expressed concern about the adoption by the Russian Federation of documents curtailing the civil and political rights. She urged the Russian Federation to make sure that its legislation meets the international standards in the field17.

Taking into account the benefits that such amendments offer to authoritarian regimes, we do not rule out that the Tiraspol administration may be tempted to comply with the new trends of the Russian state to which it aspires. It should be highlighted that in certain cases, the breakaway leaders often restricted the right to assembly by directly intimidating the participants. In other cases, counter-rallies were organized in order to disrupt peaceful rallies.

Another problem resides in the lack of an independent justice system, which is rather loyal to the regime’s leaders18.

Therefore, civil society should act firmly in order to prevent the approval of amendments of this kind on the territory that the constitutional authorities do not control.

16 http://www.freedomhouse.org/article/putin-must-reject-outrageous-penalties-peaceful-protest 17 http://www.ohchr.org/RU/Countries/ENACARegion/Pages/RUIndex.aspx, http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspxNewsID=12366&LangID=R 18 http://www.freedomhouse.org/report/freedom-world/2005/transnistria; http://www.freedomhouse.org/report/freedom-world/2007/transnistria

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Chapter 3.

CORRESPONDENCE OF PRINCIPLES ON ASSEMBLIES REGULATED IN THE NATIONAL LEGISLATION WITH THOSE APPLIED IN THE EASTERN REGION When we discuss about the application of national principles to assemblies in the Transnistrian region, we do not refer to the direct application of the law in this territory only, because this is, for the time being, a complicated issue due to the reasonings described above.

It is obvious that the application of the national law on the entire territory of the country is a difficult to achieve challenge, at least, for the following period of time. We consider that for the moment, a useful issue would be to analyse the correspondence of principles applicable in the territory with the national ones, in order to draw the attention to the problems faced by the population in the region when it is trying to organize an assembly.

According to article 21 of the International Covenant on Civil and Political Rights, the right to the free assembly is not an absolute one. At the same time, any restrictions can be introduced through clear directives of the legislative act and must be necessary in a democratic society, for the interest of the national security or public order, public health or moral protection, or observance of the right to assembly of other persons.

The Guidelines on assemblies, approved by the OSCE, provides for several principles that must be applied by the member states, some of these have been expressly stipulated in the national legislation. The goal of this analysis is to enhance the attention over the need for observing the principles provided for assemblies.

An analysis of the documents regulating assemblies, applied in the Eastern region of Moldova, by the so-called law enforcement bodies, reveals that even if some elements are analogical, the majority of principles provided by the national legislation cannot be applied anyhow19. The guidelines on assemblies reveal six principles that have to be applied. The national legislation of the Republic of Moldova ensures the observance of four of them.

3.1 Proportionality According to the national legislation, proportionality is a principle, based on which, when applying any restrictions to the freedom of assemblies, public authorities must observe the balance between the need for such a restriction in a democratic society and the fulfilment of the right to assemble.

The proportionality principle was widely described in the Court’s jurisprudence 20. In particular, the aspect whether the balance between the interests of the society and of the individual is observed will be considered.

The perception on how should it be in a democratic society depends on the level of its maturity. The more advanced the democracy is, the more equitably this principle will be applied. The application of this principle offers the certainty that the less restrictive measures will be preferred by the authorities. In this compartment we cannot speak about a democracy in the region, as it is rather about the authority of the regime. Therefore, a delimitation of the proportionality will be decided in an authoritarian way, without observing the principle of 19 „Law on the organization and holding of assemblies,” approved on 05 December 2002 by the „parliament of the Transnistrian Moldovan republic”, http://zakon-pmr.com/DetailDoc.aspx?document=60967 20 See the ECHR Decision on the case of Platform “Artze fur das Leben” v. Austria, (1998);

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democracy.

First of all, the principle of proportionally supposes in itself the exclusion of the routine restrictions, that would essentially affect the nature of the event. The application of the principle of proportionality in the region is also difficult because of the internal regulations that do not guarantee the free organization of certain types of assemblies.

According to the national legislation, no notification is required for the spontaneous meetings. Organisers could inform the local public administration authority through any possible means, in case an enhanced certainty of the assembly is sought. In any case, the administration is obliged to undertake all actions required for the good holding of spontaneous assemblies.

But in the Transnistrian region, spontaneous assemblies cannot be guaranteed and are, in fact, excluded by definition. This is due, first of all, to the obligation to submit a notification to the local public administration, from 15 to 10 days before the date of the meeting, which excludes the spontaneity of the meeting21. We have considered that there are situations, when following certain political or other nature events, the organization of a meeting in ten days cannot reach the expected target.

As it can be seen from this directive, it has been taken over from the Russian Federation’s Law on assemblies22. Organizers will have to choose between enduring the sanctions for not observing the term for submitting a notification or not holding the meeting.

The ECHR has established in its rulings that the decision to break the assembly just because of the fact that there was no preliminary notification, without any deviations of behaviour in participants’ actions, is an unproportional limitation of the right to freedom of assembly23. According to the case studies, a spontaneous meeting was dispersed by the socalled collaborators of the law enforcement bodies in the Transnistrian region during 2011.

Also, there was one case when after the spontaneous meeting, participants have been persecuted. The fact that the notification procedure has been broken was used as a reason for applying the dispersing measures of participants. Another challenge in the region is the organization of some simultaneous assemblies.

If we were to take as a basis the constitutional provisions, then we could say that when several applicants have submitted preliminary statements on the organization of some assemblies in the same venue and at the same time, the responsible body of the local public administration authority has to hold a meeting with the participation of all applicants, in order to find the right solution.

In such situations, the authority plays the role of a mediator and proposes the organization of assemblies in a simultaneous way, if the situation allows that. Organisers may change the conditions of assemblies for some organisers, as suggested by the authorities. In case no joint solution is found, the priority shall be given to the organizer who was the first to submit the preliminary statement. The authority does not have the mandate to modify the assembly organisation conditions. Also, if the space allows, the authority shall be obliged to ensure for each of the participants of camps the right to protest in the same venue.

21 “Law on the organisation and holding of assemblies,” approved on 05 December 2002 by the “parliament of the Transnistrian Moldovan republic.”

22 Law on assemblies of the Russian Federation, approved by the State Duma on 04 June 2004.

23 See the decision on the CASE OF BUKTA AND OTHERS v. HUNGARY, Application no. 25691/04 , Decision of 17 July 2007, paragraphs 36, 37.

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In the case of assemblies in the region, the organizer shall be informed that he cannot hold the assembly, because another organizer has submitted an application earlier. In this situation, there is no obligation stipulated to mediate the venue for holding the assembly together with the organizer of the first assembly. Hence, formally, the local administration could ban the assembly by handing over an information notice.

According to the opinion of the Venice Commission24on the legislation of the Russian Federation, which is similar to the one in the region, it was mentioned that if a notification for the organisation of several assemblies in the same venue and at the same time was submitted, the best efforts should be undertaken to hold them jointly to the maximum possible extent.

The interdiction of more than one assembly to be held in the same venue and at the same time is an unproportional measure.

The ECHR’s25 jurisprudence has highlighted the fact that where possible, authorities must undertake all measures to allow assemblies to be held. Hence, the local administration is obliged not only to record when and under what conditions the notification has been submitted, but also to mediate certain situations when assemblies are sought to be held in the same place and at the same time.

3.2 Non-discrimination The non-discrimination principle is a universal principle, according to which, the right to assemble is guaranteed to all persons, regardless of their race, colour, gender, language, religion, political or other nature visions, national or social origin, property, statute at birth or any other kind. When regulating the freedom of assemblies, authorities must not discriminate individuals or groups of individuals following these criteria.

This principle originates from the interpretation of article 26 of the Convention on the civil and political rights, and article 14 of the European Convention requesting the state to ensure the equal observance of rights for each individual. Any discrimination based on gender, race, colour, ethnic origin, language, religion, political options, as well as other criteria, has to be prohibited.

Unfortunately, we have to ascertain that norms on the organisation of assemblies in the Transnistrian region are discriminatory. Hence, these do not envisage as organizers foreign citizens and minors; similarly, public associations, parties, professional unions, religious cults that are not registered or whose activity has been suspended cannot be the initiators of public assemblies.

Hence, we see that like in the case of the Russian Federation’s legislation, the region’s legislation is prohibiting the organization of assemblies by persons who do not have the citizenship of the place. Unlike the legislation of the Russian Federation, this limitation, in the situation in which the region does not have a legal autonomy, is abusive. This region is not recognized as a subject of international relationships, therefore, the existence of the Transnistrian citizenship institution does not have any value. In general, the policy of assigning the so-called citizenship for a state that does not exist has to be treated as an action of self-isolation of the region’s leaders. In actual fact, any person, even the region’s residents, 24 http://www.venice.coe.int//docs/2012/CDL-AD%282012%29007-e.pdf, OPINION ON THE FEDERAL LAW NO. 54-FZ OF 19 JUNE 2004 ON ASSEMBLIES, MEETINGS, DEMONSTRATIONS, MARCHES AND PICKETING OF THE RUSSIAN FEDERATION 25 ECHR’s ruling on the Ollinger v Austria case

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who does not hold the so-called citizenship of the region, does not have the right to organize any assemblies. It should be mentioned that in the Transnistrian region there are many residents who do not have the so-called citizenship, given that they do not want to have any connections with the separatist regime, let alone the foreigners, who could organize assemblies in the region. Hence, the limitation envisages in fact all those who do not have any responsibility towards the regime.

The second category of persons who are limited in the organization of any assemblies in the region are the non-registered groups of persons, or the non-formal associations. Local norms ban the organization of assemblies even by the associations, whose activity has been suspended or are under the process of liquidation by decision of the region’s authority.

According to thematic reports on the freedom of association in the region, this freedom, too, is under strike. Hence, the local administration could isolate an association by placing it under the suspension process or, eventually, by refusing its registration and this will be enough to deprive it of the right to hold assemblies.

On the other hand, constitutional norms do expressly stipulate that any groups of persons have the right to hold public assemblies. The same is provided by the Best Practice Guidelines for assemblies, which specifies that the non-registered organizations must enjoy the same rights as the registered ones.

Minors in the region are also discriminated because of the introduction of the age limit as concerning the organization and holding the assembly. According to the constitutional norms of the Republic of Moldova, an organizer of an assembly can also be a minor from 14 years, provided that he/she is accompanied by a person with full legal capacity26. According to the norms of the region, a minor cannot be the organizer of an assembly. This limitation is contrary to the Conventions to which the Republic of Moldova is party. Hence, children, like adults, have rights and interests. The freedom of assemblies, in the way it is regulated, participates in the creation of visions and opinions in the society. In particular, art. 15 of the Convention on the Rights of the Child obliges the states that are parties to it, to recognise the rights of children to organize and hold public assemblies. In this respect, the member states can set up certain minim ages for minor children for the organization of assemblies. In the case of the Republic of Moldova, minors can organize assemblies from the age of 14 years.

In the Russian Federation, the census age is set up at 18 years, and for meetings and assemblies – 16 years. While in the region, even minors from 16 to 18 years do not have the right to organize assemblies, regardless of the organization form.

3.3 Legality Legality is a principle according to which only legal provisions can serve as grounded reasons for prohibiting assemblies or for limiting the freedom of assembly, with the public authorities being not entitled to question the opportunity of assemblies.

The legality principle implies that the public authorities shall consider statements about the organization of assemblies, but they shall not consider the opportunity of assemblies by any means; it also implies that, on a case-by-case basis, courts shall examine the goals and means of displaying attitudes in relations with legislation27. The practice of applying the 26 See art. 6 of the Law No 26-XVI, of 22 February 2008; 27 See Guidelines on Freedom of Peaceful Assembly, OSCE, ODIHR 2007;

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national law abrogated in 2008 proves that the authorities and courts were examining the opportunity of holding assemblies, and not legal aspects28. The fact that the national law in force encompasses this principle strengthens the rule of law and strengthens the certainty that any imposed restriction should have a formal basis within the law. The law must be precise enough for the organizers and participants in assemblies to be able to estimate whether their behaviour is in breach of the legality principle and what consequences such an unlawful behaviour might have.

Any interdiction should be stipulated in the law. The law itself must be sufficiently clear and precise and explain whether the actions are lawful or not and whether they will be sanctioned. In this respect, the local Transnistrian regulations impose certain restrictions on assemblies and rule out the possibility of holding assemblies between 23:00 and 7:00.

The region’s rules of holding assemblies rule out the possibility of implementing the principle of proportionality in cases when it is proposed that assemblies should be held near premises of the local administration bodies. So, the local provisions provide for a series of prohibitions which were stipulated before in the first national law too. Thus, until 2008, according to Article 8, it was forbidden to hold assemblies at a distance closer than 25 metres from the buildings of the central administration authority, of the local public administration, courts, prosecutor’s offices, police, prisons and social rehabilitation institutions, military objects, railway stations, airports, hospitals, companies which use dangerous equipment and machines or diplomatic institutions. Once the new law on assemblies was passed, the prohibition to hold assemblies at a certain distance from the headquarters of the official institutions was removed and it was specified that assemblies may take place at any venue provided that access to headquarters is not barred. The local regulations from the left bank of the Dniester explicitly prohibit holding assemblies in the above-mentioned conditions.

The local regulations also prohibit holding assemblies at night. Unlike these provisions, the national legislation, in particular Article 16 does not rule out the possibility of holding assemblies at night provided that sound amplifiers are not used. Assemblies that deliberately obstruct the traffic of public transport means are also forbidden in the region. This norm may be interpreted differently and does not guarantee that the administration will not intervene groundlessly. Every rally attended by a significant number of people may obstruct the road traffic; hence there is a risk that the administration will thwart large-scale assemblies under the pretext that they are in breach of the regulations.

According to the rules of the separatist region, should the local public administration object to the venue and time of assemblies, they should put forward proposals of changing the date of the assembly. In three days at the most, the organizers must inform the administration whether they accept the proposals of changing the venue and time indicated in the notification. It is not clear whether they will still have the right to assembly if they notify the administration, or whether the assembly will be regarded as unauthorized.

The above-mentioned deficiencies are fraught with the danger of sanctions. It should be emphasized that holding assemblies without prior notification is sanctioned in the form of fine or of a freedom-depriving sentence of 15 days, and in case of aggravations they may be sentenced to unpaid labour for community services from one to two months. When it comes to the legislation of the Russian Federation, fines are several hundreds of times higher than the ones provided for by the national legislation. Thus, in the event of harmonization of the

28 See ECHR ruling in the case Hyde Park&CO versus Moldova, NO 3, request No 45095/06;

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local legislation with the one of the Russian Federation, sanctions for eventual deviations may be significantly increased.

Unlike these sanctions envisaged by the so-called administrative violations code of the region, the national legislation is much more lenient, providing only for fines.

3.4 Presumption in favour of holding assemblies The presumption in favour of holding assemblies implies that while examining a prior notification on an assembly, the public authorities shall interpret any doubt in favour of exercising the right to assembly.

The presumption in favour of holding assemblies is implemented whenever the legality of assemblies is doubted. According to this principle, the authorities interpret any doubt in favour of the right to assembly. As a fundamental and basic right, the freedom of peaceful assembly should be enjoyed without regulations as much as possible. Anything not expressly forbidden in law should therefore be presumed to be permissible, and those wishing to assemble should not be required to obtain permission to do so.

As reported by the Organization for Security and Cooperation in Europe, the word „need” does not mean absolutely necessary or mandatory, but neither can it have the flexibility of such words as “useful” or “convenient”: indeed, to limit these, there should be a major social need. When such a social need appears, the state should make sure that any restrictive measure falls into the limit accepted by democratic societies.

The Venice Commission analyzed the legislation of the Russian Federation and underlined that the law should guarantee the freedom of assembly and not only regulate the holding of public assemblies. If we analyze this opinion and compare it with the local norms, we will reach the conclusion that it does not comply with the fundamental criteria either, and that the enforcement of the national legislation, which is much more advanced, may be a solution for the population from the region.

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Chapter 4.

ANALYSIS OF RESULTS. CONCLUSIONS

According to the monitoring report on the freedom of assembly in the Republic of Moldova for 2011, about 60 assemblies were held in the Transnistrian region. Most of them, 44%, were held in Tiraspol, 24% - in Tighina, 14% - Dubasari; other localities, like Grigoriopol, Slobozia, Camenca or Ribnita – 18%.

Around 70% of them were festive meetings, for commemorating certain historical dates.

Also, three spontaneous assemblies were held, one of them resulting with the sanctioning of participants.

About 50% of assemblies were attended by less than 50 participants, and another 25% by up to 100 participants. Only two assemblies brought together between 500 and 1,000 persons. Ultimately, about 36% of assemblies lasted less than one hour, and the rest – from 1 through 3 hours. A few marches were the longest assemblies, from the time point of view29.

By comparing this number with the number of assemblies held in the rest of the country – 14,000 – we will notice a huge gap. This, we believe, could be explained, first of all, due to the quality of norms regulating the holding of assemblies in the region. It is not a secret that the population in the region is permanently intimidated, therefore it would not risk to hold any assemblies, where it would clearly present its objections and pretensions to the public administration. Looking at the proportion between the declared goals of assemblies, we will notice that more than 2/3 of assemblies were festive meetings, organized by the same local authorities. Or, this demonstrates that not the same principles on holding assemblies are applied across all the territory of the Republic of Moldova.

Therefore, it is necessary to conclude the following:  The freedom of assemblies, along with the freedom of expression in the region, is essential when the human rights issue is being discussed within negotiations. Ensuring and guaranteeing of these has to be promoted, first of all, for the fulfilment of other civil and political rights.  The breaking of assemblies must not turn into the habits of the so-called collaborators of the law enforcement bodies.  The alignment to the Russian Federation’s standards would create a too large and inadmissible gap as concerning the provision of human rights in the region.  The right to assemble must be observed to the maximum possible extent, regardless of provisions of local acts. Local administration in the region should be determined to apply standards and principles provided in the guidelines on holding assemblies approved by the OSCE.  Defenders of human rights should monitor the holding of assemblies in the Eastern region. Also, the independent mass-media has to be advised to participate in all events held in the region.

29 Monitoring report on the observance of the freedom of assembly in Moldova for the period January – December 2011, ECHR.

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SELECTIVE BIBLIOGRAPHY 1. Universal Declaration of Human Rights (1948); 2. International Covenant on Civil and Political Rights (1966); 3. European Convention for the Protection of Human Rights (1959), ratified through the Parliament Decision No 1298 or 24 July 1997; 4. The Constitution of the Republic of Moldova of 29 July 1994; 5. Civil Code of the Republic of Moldova No 1107 of 06 June 2002; 6. Criminal Code of the Republic of Moldova No 985 of 18 April 2002; 7. Contravention Code of the Republic of Moldova No 218 of 24 October 2008; 8. Law on the organization and holding of assemblies, No 560 of 21 July 1995 (abolished); 9. Law No 26 of 22 February 2008 on assemblies; 10. Law No 173 of 22 July 2005, on the basic provisions of the special legal statute of localities on the left bank of the Dniester River (Transnistria), 11. See the ECHR Decision on the case of Platform “Artze fur das Leben” v. Austria, (1998); 12. ECHR Ruling on the Brega and others v. Moldova case, No 61485/08; 13. ECHR Ruling on the Hyde Park and others v. Moldova case, No 3, demand No 45095/06; 14. Guidelines on Freedom of Peaceful Assembly, OSCE, ODIHR 2007; 15. Comparative survey on the observance of the right to freedom of assemblies in the Republic of Moldova, Chisinau, 2008; 16. Guidelines on the application of Article 10 of the ECHR; Council of Europe Directorate General of Human Rights, 2001; 17. Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, 21.05.2012, A/HRC/20/27.

18. Monitoring report on the observance of the freedom of assembly in Moldova for the period January – December 2011, ECHR. 19. Law on gatherings of the Russian Federation, approved by the State Duma on 04 June 2004.

20. OPINION ON THE FEDERAL LAW NO. 54-FZ OF 19 JUNE 2004 ON ASSEMBLIES, MEETINGS, DEMONSTRATIONS, MARCHES AND PICKETING OF THE RUSSIAN FEDERATION

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