SECOND SECTION
CASE OF PETRENCO AND OTHERS 
v. THE REPUBLIC OF MOLDOVA
(Applications nos. 6345/16, 52055/16, 52063/16, 52133/16, 
52171/16, 52179/16 and 52189/16)
 
 
JUDGMENT
 
Art 5 § 1 • Unlawful detention • Accusations of participation in mass disorders not based on “reasonable suspicion”
Art 11 • Freedom of peaceful assembly • Unlawful imposition of prohibition on participating in public gatherings

 
STRASBOURG
14 September 2021
 
FINAL
 
14/12/2021
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Petrenco and Others v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Jon Fridrik Kjølbro, President,
 Carlo Ranzoni,
 Aleš Pejchal,
 Valeriu Griţco,
 Branko Lubarda,
 Marko Bošnjak,
 Saadet Yüksel, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the applications (nos. 6345/16, 52055/16, 52063/16, 52133/16, 52171/16, 52179/16 and 52189/16) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Moldovan nationals, Mr Grigore Petrenco, Alexandr Roșco, Mihail Amerberg, Oleg Buznea, Pavel Grigorciuc, Andrei Druzi and Vladimir Jurat (“the applicants”), on 28 January 2016, 27 August 2016, 27 August 2016, 27 August 2016, 27 August 2016, 27 August 2016 and 27 August 2016 respectively;
the decision to give notice of the applications to the Moldovan Government (“the Government”);
the parties’ observations;
Having deliberated in private on 24 August 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the applicants’ arrest and detention following a demonstration on criminal charges of participation in mass disorders and the imposition on them of a prohibition on participating in public gatherings after their release from pre-trial detention for some three years. THE FACTS
2. The applicants were born in 1980, 1986, 1986, 1990, 1989, 1974 and 1988 respectively and live in Chișinău, except for the first, fifth and sixth, who live in Baden-Baden, Cahul and Mereni respectively. The applicants were represented by Mr V. Vieru and Ms N. Hriplivîi, lawyers 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. The demonstration of 6 September 2015
5. The applicants are members and sympathisers of an extra‑parliamentary opposition party, “Casa noastră - Moldova” (Our home – Moldova) led by the first applicant, who at the time was also a member of the Moldovan delegation to the Parliamentary Assembly of the Council of Europe. 6. On Sunday 6 September 2015 another opposition political party organised a large anti-government rally in the central square of Chișinău in which the applicants and other sympathisers of their party participated. One of the resolutions of the rally was the demand for the immediate dismissal of the Prosecutor General, who was accused of being politically subordinated to Mr Vladimir Plahotniuc, the leader of the main governing party at the time. Immediately after that, a large group of persons led by the applicants marched towards the headquarters of the Prosecutor General’s Office to demand his resignation. 7. At approximately 2.15 p.m. the group approached the building of the Prosecutor General’s Office. In a video of the event which is part of the case‑file one can see several members of the group wearing black t-shirts with the inscription ПЛХ-ПНХ (the abbreviation in Russian of the words meaning “Fuck you Plahotniuc”) rushing on the steps of the building towards its entrance. The fifth applicant can be seen approaching one of the entrance doors and sitting right next to it while leaning against the door. Several police officers immediately lift him up and push him away from the entrance. Many more members of the group climb the steps and rush towards the entrance doors, being stopped and pushed back by police officers. In a matter of two-three minutes the demonstrators are pushed away from the entrance doors towards the lower part of the steps by a group of policemen outnumbering them. No violence is seen on the video footage apart from the pushing of the demonstrators by the police officers away from the entrance of the building and the former shouting different slogans such as “Rușine” (meaning “Shame on you”), “Plahotniuc la dubă” (meaning “Plahotniuc in prison”) and “Jos mafia” (“Down with the mafia”), whistling and drum beating. The police officers present in great numbers form a line in front of the demonstrators preventing them from climbing the steps toward the entrance of the building. The majority of the demonstrators stay on the pavement, the lawn and the road in front of the building, only several dozen being on the lower part of the steps. 8. After being pushed to the lower part of the stairs, at approximately 2.18 p.m. a group of approximately 15-20 demonstrators, including the applicants, sit on the steps at the feet of the police cordon and announce that they intend to instal tents and stay there until the resignation of the Prosecutor General. Later they stand up. 9. At approximately 2.23 p.m. a special forces unit wearing helmets and special anti-riot gear approach the demonstration. At 2.27 p.m. several demonstrators start installing tents on the pavement in front of the building. At 2.28 p.m. the police demand the demonstrators to vacate the premises and warn them that they will be removed by force in case of non-compliance. Since the demonstrators refuse to comply, at 2.29 p.m. the police forces start pushing them further away from the entrance of the building. One of the demonstrators wearing a black t-shirt is seen being arrested by two police officers behind the police cordon. Having been pushed to the pavement, the demonstrators again sit down at approximately 2.31 p.m., this time on the pavement. 10. Another video included in the case-file starts at 4.01 p.m. In it one can see many demonstrators scattered on the pavement, lawn and road in front of the Prosecutor General Office’s building. The steps of the building are occupied by the police and approximately ten tents are installed on the sidewalk in front of the steps. A group of demonstrators including some of the applicants are seen seated on the lower part of the steps and the first applicant shouts through a megaphone that this is a peaceful demonstration and that they have the constitutional right to peacefully protest. At 4.20 p.m. a representative of the Mayor’s Office approaches the persons sitting on the pavement and tells them that they are breaking the law by occupying the pavement and gives them five minutes to vacate it. The protesters retort that the pavement is public property and that they have the right to hold a peaceful protest on it. At 4.42 p.m. members of the special forces and the police start taking away the tents from the pavement. In spite of some protesters’ attempts to retain the tents, within two minutes all tents are taken away by the police. At 4.47 p.m. all the demonstrators are pushed away from both the steps, the pavement and the lawn in front of the building. At approximately 5 p.m. the demonstration came to an end. The applicants’ detention and their criminal prosecution
11. All the applicants were arrested at approximately 4.39 p.m. and were taken to a police station. They were placed in detention for a period of seventy-two hours on suspicion of having committed the offence of participating in mass disorders provided for by Article 285 of the Criminal Code (see paragraph 22 below). On 8 September 2015 the applicants were formally charged with the offence of participating in mass disorders and the Rîşcani District Court ordered their remand in custody for a period of thirty days. The court decision ordering the applicants’ remand in custody stated that there was evidence and witness statements confirming the applicants’ active involvement in violence against the police, however without indicating which evidence and which witness statements. In their appeal the applicants argued that the criminal prosecution and their detention were politically motivated and that there was not one single piece of evidence confirming the alleged violence against the police during the demonstration of 6 September 2015. They also indicated that there were no medical documents supporting the accusation about violence against the police. The Court of Appeal dismissed the applicants’ appeal and their detention was later prolonged several times until 22 February 2016, when the Rîşcani District Court ordered their house arrest as a result of the involvement of numerous members of the Council of Europe’s Parliamentary Assembly. While under house arrest, the applicants were obliged to wear electronic bracelets. 12. The fourth applicant’s house arrest was changed to provisional release under judicial control on 4 April 2016. 13. The other applicants were also released under judicial control on 26 April 2016. On the same date the court ordered as one of many surety measures in respect of them the prohibition on participating in public gatherings, if there was a risk of the gathering degenerating into mass disorders. That measure was prolonged on many occasions by the Rîşcani District Court and all the applicants’ appeals against it were dismissed by the Court of Appeal by 12 March 2019. 14. On 28 June 2017 the Rîşcani District Court found the applicants guilty as charged and sentenced them to suspended sentences of three and four years’ imprisonment. 15. On 29 September 2017 the first applicant, who was in Germany, applied for asylum in that country. On 16 October 2017 the German authorities granted him refugee status on the grounds that in Moldova he was prosecuted for political reasons. 16. On 12 March 2019 a panel of three judges of the Chișinău Court of Appeal dismissed the applicants’ appeals against the judgment of 28 June 2017. One of the members of the panel, Judge S.B., made a dissenting opinion in which she stated inter alia that after having viewed the video footage included the case-file and having examined the other materials of the case she did not find any evidence of violence against the police during the demonstration of 6 September 2015. She saw a peaceful gathering of persons protesting against the Government and expressing their discontent with the policy of the Government. The event having taken place on a Sunday, it had not even hindered in any way the work of the Prosecutor General’s Office. Therefore, she expressed the opinion that the applicants should have been acquitted. 17. In June 2019, following a week of tensions between the authorities and the opposition, a peaceful overthrow of the Government took place in Moldova and the former leader of the ruling political party, Mr V. Plahotniuc, fled the country. 18. On 11 February 2020 the Supreme Court of Justice upheld the applicants’ appeal against the judgment of the Court of Appeal of 12 March 2019. It found inter alia that the applicants’ conviction had been based exclusively on the interpretation and description of the facts made by the prosecution without any attention having been paid to the position of the applicants and to the materials of the case-file. Therefore, the Supreme Court quashed the inferior court’s judgment and sent the case back to the Court of Appeal for a fresh examination. 19. On 20 July 2020, the Court of Appeal upheld the applicants’ appeal against the judgment of 28 July 2017, quashed it and sent the case for a fresh examination by the Rîşcani District Court. 20. The criminal case against the applicants is pending before the first instance court to date. RELEVANT LEGAL FRAMEWORK
21. Article 40 of the Constitution of the Republic of Moldova (on freedom of assembly) provides:
“All meetings, demonstrations, rallies, processions or any other assemblies are free, but they may be organised and take place only peacefully and without the use of weapons.”
22. Article 285 of the Criminal Code of the Republic of Moldova entitled “Mass disorders”, as in force at the material time, read as follows:
(1)  Organizing or leading mass disorders involving violence against persons, pogroms, arson, damage to goods, the use of firearms or other objects used as weapons, and violent or armed resistance to representatives of authorities shall be punished by imprisonment for 4 to 8 years. (2)  Active participation in the commission of actions set forth in paragraph (1) shall be punished by imprisonment for 3 to 7 years. (3)  Calls for active, violent insubordination to the legitimate requests of the authorities’ representatives, and for participation in mass disorders and for the commission of acts of violence against persons shall be punished by a fine in the amount of 200 to 500 conventional units or by community service for 180 to 240 hours or by imprisonment for up to 2 years. 23. Article 191 of the Code of Criminal Procedure entitled “Provisional release under judicial control”, as in force at the material time, read as follows:
(1)  The provisional release under judicial control of a person under preventive arrest, of a detainee or of a person in whose case an arrest request was filed, may be granted by the investigative judge or, as the case may be, the court and shall imply one or several of the obligations set forth in para. (3). (2)  Provisional release under judicial control shall not be granted to a suspect/accused/defendant if he/she has convictions which remain in the criminal record for serious, especially serious or exceptionally serious crimes or if there are indications that he/she will commit another crime, will try to influence witnesses, will destroy sources of evidence or will evade justice. (3)  The provisional release under judicial control of an arrestee shall imply one or several obligations as follow:
1)  not to leave the place of his/her domicile other than under the conditions set by the investigative judge or, as the case may be, by the court;
2)  to notify the criminal investigative body or, as the case may be, the court about any change of domicile;
3)  not to appear in specifically determined places;
4)  to appear whenever summoned by the criminal investigative body or, as the case may be, by the court;
5)  not to contact specific persons;
6)  not to commit any actions preventing the finding of the truth in criminal proceedings;
7)  not to drive vehicles or not to practise a profession used by him/her in the commission of the crime;
8)  to leave his/her passport with the investigating judge or the court. (4)  The police in the territorial jurisdiction in which a suspect/accused/defendant temporarily released lives shall exert control over him/her meeting the obligations set by the court. (5)  Judicial control over a temporarily released person may be cancelled, wholly or partially, for justifiable reasons and in the manner set for this measure. THE LAW
JOINDER OF THE APPLICATIONS
24. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 5 §§ 1, 3 and 4 OF THE CONVENTION
25. The applicants complained under Article 5 § 1 of the Convention that their deprivation of liberty had not been based on a reasonable suspicion that they had committed an offence and that it was arbitrary and unlawful. Article 5 § 1 reads 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;
...”
26. They also complained that the courts ordering their detention and house arrest had not relied on relevant and sufficient grounds, and had not motivated properly their decisions as required by Article 5 §§ 3 and 4 of the Convention, which reads as follows:
“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
Admissibility
27. The Court notes that these complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.

Outcome for Article 5: violation