The International Human Rights Framework on the Right of Peaceful Assembly
Moldova is a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. 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 (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Moldova is also a state party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the state has violated their human rights as protected under the Covenant.
At regional level, Moldova is a state party to the 1950 European Convention on Human Rights (ECHR). Article 11 governs freedom of assembly and association:
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
On 19 March 2020, the Council of Europe received a note verbale from Moldova, dated the previous day, by which it informed the Council about the decision of the Parliament of the Republic of Moldova to declare a state of emergency on 17 March 2020 as a critical measure to stop the spread of COVID-19. The state of emergency has been instituted for a period of 60 days, from 17 March to 15 May 2020 throughout the territory of Moldova. The state of emergency included a prohibition on public meetings and gatherings and other mass events.
The Domestic Legal Framework on the Right of Peaceful Assembly
Article 40 of the 1994 Constitution of the Republic of Moldova stipulates that:
All meetings, demonstrations, rallies, processions or any other assemblies are free, and they may be organized and take place only peacefully and without the use of weapons.
However, under Article 54(1), the exercise of certain rights or freedoms "may be restricted only under the law and only as required in cases such as: the defence of national security, of public order, health or morals, of citizens rights and freedoms....". Paragraph 2 of Article 54, though, stipulates that: "The restrictions enforced must be in proportion to the situation that caused it, and may not affect the existence of that right or liberty."
The 2008 Law on Assemblies (as amended through 2014) governs assemblies in Moldova. Article 4 holds that the main principles of the Law are proportionality, non-discrimination, legality, and
the presumption in favour of organizing an assembly, according to which at the examination of a prior request to hold a meeting, any doubts will be interpreted by the public authorities in favour of exercising the right to assembly.
Under Article 10(1), any person intending to hold an assembly
shall notify in writing, by a prior declaration, the authority of local public administration from the respective territorial-administrative unit, with at least five days prior to the date of the assembly.
Article 16(1) stipulates that assemblies "shall be held only in a peaceful manner". Under paragraph 3, during the assembly, "it is forbidden to hold weapons, explosives, any other forbidden substances or other objects that can endanger people’s health or life".
Article 22 of the 2008 Law concerns the forced dispersal of an assembly:
(1) If the organiser of the assembly does not comply with the request of the representative of local public administration authority or is not able to cease the assembly, the representative in question shall ask the participants to diffuse.
(2) If the participants in an assembly do not leave the place of the assembly at the request of the representative of the local public administration authority, police will warn the participants about the possibility of using special means and about forced dispersal of the assembly, providing reasonable term to comply to this request, after which police will repeat the request to disperse the participants.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
Article 22 of the 2008 Law concerns the forced dispersal of an assembly. Under paragraph 3,
If after the repeated request to disperse, the participants at the assembly do not leave the place of the assembly, at the request of the representative of local public administration authority, police will carry out legal means to disperse the meeting.
Under paragraph 4, in case of a "forceful dispersal of the assembly, police shall prepare minutes, where they shall indicate the reason and ground of dispersal".
According to Article 4(3) of Law No. 218 (2012) on the Police Status and Activity:
The application of physical force, special means and firearms shall be admitted only in strict accordance with the law and if the non-violent methods do not ensure the fulfillment of the Police's attributions.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
Under section 17 of the 1990 Police Act, police officers have the right to use firearms as a last resort in self-defence. This is insufficiently detailed to comply with international law.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2016 Concluding Observations on Moldova, the Human Rights Committee called on Moldova to
guarantee the right to freedom of assembly without any undue restrictions or obstacles in law or in practice, and take appropriate measures to ensure that organizers and participants of assemblies do not face any acts of intimidation, including police interference prior to the organization of assemblies.
Genderdoc-M v. Moldova (2012)
In its judgment in this case, the European Court of Human Rights found a violation of the right of peaceful assembly by Moldova. The case concerned the banning of a demonstration that Genderdoc-M, a non-governmental organisation, had planned to hold to encourage laws for the protection of sexual minorities from discrimination.
Brega and others v. Moldova (2012)
The applicants, members of a Chişinău-based NGO which lobbies for freedom of expression and the right to free assembly, complained about their arrests during a number of protests in Chişinău between March 2008 and February 2009. The Government did not dispute the existence of an interference with the applicants’ right to freedom of assembly. However, they reiterated their contention that the application was inadmissible for failure to exhaust domestic remedies.
The Court considered that the applicants’ arrest
constituted “interference by [a] public authority” with their right to freedom of assembly under the first paragraph of Article 11. Such interference will entail a violation of Article 11 unless it is “prescribed by law”, has an aim or aims that are legitimate under paragraph 2 of the Article and is “necessary in a democratic society” to achieve such aim or aims.
The Court noted that the applicants’ protests "remained peaceful, and that they did not disturb public order in any way". In such circumstances, the interference with their right of assembly could not be considered lawful under domestic law. Accordingly, there had been a violation of Article 11 of the Convention.
Views of Civil Society
According to Freedom House's 2019 report on Moldova:
Freedom of assembly is guaranteed by the constitution and mostly upheld in practice. A series of protests condemning the annulment of the Chişinău mayoral elections in 2018 proceeded peacefully. However, an LGBT march that took place in May was disrupted by counterprotesters who attempted to break through a line of police officers protecting event participants. Police responded with tear gas. In 2017, a similar march had been cut short by police, who cited the potential for a violent confrontation with counterprotesters amassed along the route.
Also in 2017, protest leader and opposition politician Grigore Petrenco had received a four-and-a-half-year suspended prison sentence for “organizing mass disturbances” in 2015, a charge that the opposition claimed was politically motivated.