Summary of legal provisions regarding freedom of assembly in Moldova
The new law on assemblies was enacted on 22 April 2008. The core provisions are:
1. Definition of assembly (art. 2, 3). The new law defines an assembly as a temporary, intentional presence of participants, and assemblies with fewer than 50 persons and spontaneous assemblies are not required to give notification and the law provides for the occurrence of more than one assembly in one location at the same time. The law does not include religious, commercial and sporting assemblies within its remit. As a result the definition of different types of assembly is more precise and it is easier to apply in practice.
2. Freedom of assembly principles (art. 4). The new law is based on 4 core principles: 1) a presumption in favour of holding an assembly (non-regulation, duty to protect); 2) legality (limitation); 3) proportionality (balancing public interest test, “less intrusive alternative”); and 4) non-discrimination.
The provision of these “principles” constitutes clear progress compared to the previous law. The principles help to 1) interpret the grey zones and situations that may be undesirable or impossible to regulate and 2) guide the interpretation and application of the provisions of the law, and ensure they are consistent with it. The presence of the guiding principles should ensure fewer restrictive and less abusive interpretations of the law and over time should encourage a development away from conservative interpretation of the law that would be inconsistent with the fundamental aims of the law.
3. Notification (art. 10, 11, 12, 13). The new law incorporated a shift from an authorization to a notification procedure. Organizers notify within 5 days of an intention to hold an assembly and in the case of small and spontaneous assemblies notification is not required. If more than one notification is submitted the local authority must negotiate with the organizers, but if there is failure to reach an agreement they may deal with them on a first-come-first-served basis. Simultaneous assemblies should be facilitated and diverse interests accommodated wherever possible. The local administration can only forbid an assembly by seeking a court injunction. These elements all represent a substantial liberalization in the administrative regime.
The work of the commission on assemblies will continue. The commission will review declarations and should meet with the organizers to discuss and advise on the organization of assemblies. Police and state security agents may also be present and provide input at such meetings.
4. Organizers and participants (art. 6, 7). Any person, including minors of 14 years and over and persons with limited juridical capacity, may organize an assembly, and no restrictions may be placed on participation in an assembly. This represents a significant development as all restrictions have been removed on organizers and participants.
5. Conditions for assemblies (art. 5, 9, 14, 16). The new law provides for holding an assembly in any public space, with no restrictions on specific sites or locations, for the use of appropriate sound or visual equipment and allows for the erection of temporary structures. The local authorities can only recommend prior changes to the form of the assembly. Restrictions imposed during an assembly must be justifiable, necessary, specific and in the interest of the assembly. This represents substantial regulatory progress.
6. Ban, limitation, suspension of assembly (art. 8, 14 (5), 21, 22). These three articles provide for forms of interference at different phases of the assembly: a) banning an assembly (article 8, article 14 and article 40 of the Constitution), b) suspending an ongoing assembly (article 21 (2, 3)) or spontaneous assembly (article 12(4)), c) dispersal of an ongoing assembly (article 22).
Banning an assembly
Substance: An assembly can be only banned or restricted (article 4(c)) under existing legal provision, namely: a) article 8 (a) instigation to aggression, war, national, racial or religious hatred, b) instigation to discrimination or public violence, c) undermining national security, disturbance of public order, public morality, violation of human rights and freedoms, jeopardizing lives and health of others, or b) article 40 of the Constitution (conduct of assemblies in a peaceful manner and without the use of any kind of weapon).
Procedure: Article 14 provides for drawing attention of concerns to the organizers and if unsuccessful instigating a judicial procedure to ban the public assembly: a) step 1): based on facts or information contained in the notification, advise the organizers of their responsibility, and suggest actions to modify the assembly, and only after step 1) b) step 2): based on solid evidence of the violations of article 14 or article 40 of Constitution seek a judicial injunction of the assembly.
Generally, the substantive provisions for limiting a public assembly comply with international standards and represent a substantial legislative improvement.
Substance: The assembly can be suspended as an exceptional measure when: 1) there are serious violations of materials grounds of article 8 (a) instigation to aggression, war, national, racial or religious hatred, b) instigation to public discrimination or public violence, c) undermining of national security, disturbance of public order, public morality, violation of human rights and freedoms, jeopardizing lives and health of others), and 2) Measures other than suspension are insufficient to make the assembly legal.
Procedure: Article 21(1) provides for the representative of local authorities to declare the assembly suspended and asks the organizer to comply with the order. It provides an obligation to discretely address isolated incidences that violate article 8.
The regulation of conditions for suspending an assembly has improved qualitatively with more material and procedural guarantees put in place.
Dispersal of ongoing assembly (art. 22)
An assembly may be dispersed after a declaration of suspension if the organizers do not comply with requests to disperse. The police may execute dispersal only after warning participants to leave, and if they do not comply with the warning.
This is an improvement in the regulation of dispersal of assemblies; however, uncertainties remain regarding the potential use of armed force and the manner in which participants may be dispersed.
7. Responsibilities of organizers, participants (art. 17, 18, 19)
The overall responsibilities and liabilities of the organizers and participants remain the same with one exception. Under the new law the organizers may be exonerated from responsibility for the actions of the participants, when the latter have not adhered to their requests. Additionally the organizers, as well as the media and observers, have a right to record the activities at an event.