SECOND SECTION

DECISION

Application no. 17900/14 A.O. FALUN DAFA against the Republic of Moldova

The European Court of Human Rights (Second Section), sitting on 8 June 2021 as a Committee composed of:

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

Having regard to the above application lodged on 11 February 2014,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, A.O. Falun Dafa , is a non-governmental organisation registered in Moldova. It was represented before the Court by Mr V. Gribincea , a lawyer practising in Chișinău .

The Moldovan Government (“the Government”) were represented by their Agent, Mr O. Rotari.

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

The applicant organisation practiced Falun Gong, a spiritual practice forbidden in China. In 2010 it planned organising two concerts of Chinese music and dance with the participation of a group of ninety-two artists from the United States of America on 25 and 26 May. For that purpose, it rented a hall from the National Theatre of Opera and Ballet in Chişinău , concluded contracts with the artists and sold over eight hundred tickets.

Following a meeting between the Chinese ambassador to Chişinău and representatives of the Moldovan authorities, the Government wrote several letters to the director of the National Theatre of Opera and Ballet in which it was demanded that the concerts be cancelled. The reason invoked was the preservation of good diplomatic relations with the Popular Republic of China. As a result, on the day of the concerts, the entrance in the National Theatre was blocked by the police and the concerts were cancelled.

The applicant initiated proceedings against the National Theatre of Opera and Ballet and the Government. It relied on the provisions of the Civil Code regulating contract law and tort liability in support of its action but also invoked Articles 10 and 11 of the Convention and claimed pecuniary damage of 2,257,976 Moldovan Lei (MDL) and 20,000 United States dollars (USD) and non-pecuniary damage of MDL 1,500,000.

On 7 June 2011 the Chișinău Economic Court partly upheld the action only against the National Theatre of Opera and Ballet and awarded the applicant pecuniary damage in an amount of MDL 399,876 and USD 20,000 and non-pecuniary damage of MDL 60,000. The court did not find a breach of the applicant ’ s right guaranteed by Articles 10 and 11 of the Convention.

Both the applicant and the defendant challenged the above decision. In its appeal application, the applicant organisation challenged the manner of calculation of the pecuniary damage by referring to the provisions of the Civil Code but at the end, when stating the relevant legal provisions, it also mentioned, inter alia , Article 32 of the Constitution which guarantees the right to freedom of expression.

On 13 December 2011 the ChiÈ™inău Court of Appeal dismissed the applicant ’ s appeal but partly upheld that of the defendant, reduced the pecuniary damage to MDL 399,876 and dismissed the claims for non ‑ pecuniary damage.

The applicant organisation challenged the above decision with an appeal on points of law, expressing discontent with the manner of calculation of the damages and the rejection of the claims for non-pecuniary damage. No arguments concerning the alleged breach of the rights to freedom of expression and assembly were raised in the application. The defendant also lodged an appeal on points of law.

On 14 August 2013 the Supreme Court of Justice dismissed the applicant ’ s appeal on points of law but partly upheld that of the National Theatre of Opera and Ballet and further reduced the pecuniary damage to MDL 60,000.

COMPLAINTS

The applicant organisation complained that its rights to freedom of expression and freedom of assembly as guaranteed by Articles 10 and 11 of the Convention had been breached by the actions of the domestic authorities and that the national courts failed to remedy those breaches.

THE LAW

The applicant organisation complained under Articles 10 and 11 of the Convention that their right to freedom of expression and assembly had been breached. Articles 10 and 11 of the Convention read as follows:

Freedom of expression

“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.”

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.”

The Government disputed the applicant ’ s allegations and argued that the application should be declared inadmissible.

The Court notes that the documents in its posession do not contain any indication that the applicant had raised the allegation concerning the breach of its right to freedom of expression and assembly before the Supreme Court of Justice.

The Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had the opportunity to put matters right through their own legal system (see Balan v. Moldova , 44746/08, ( dec. ), 24 January 2012).

Since the applicant failed to raise, at least in substance, before the Supreme Court of Justice the issues about which it complains before the Court, its complaints must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court , unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 1 July 2021 .

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Hasan Bakırcı Carlo Ranzoni Deputy Registrar President