CONCURRING OPINION OF JUDGE MYJER

I voted with the majority in finding a violation of Article 14 in conjunction with Article 11.

Still, I am not convinced by the underlying reasoning laid down in the judgment.

What happened in this case? The applicant in 2005 applied for authorisation to hold a peaceful demonstration in front of the Parliament, to encourage the passing of laws to protect sexual minorities. Th e authorisation was not given. The official reason for this refusal was that the demonstration was baseless, since a law on national minorities had already been passed ( see paragraphs 8 and 9 of the judgment ).

Interestingly, later on, when the applicant appealed, all of a sudden other totally new reasons were put forward by the authorities:

- the Mayor ’ s Office had received many requests from individuals and associations wh o were vehemently against the authorisation of the demonstration and who opposed the passing of any law legalising homosexual relationships ( see para graph 12);

- the holding of an assembly for the promotion of the right s of sexual minorities would endanger public order and social morality, and, moreover, the organisers had not assumed any responsibility as regards the demonstration ’ s good management ( see para graph 14).

If the authorities had stuck to the initial reasons given and no other evidence had been available, it would have been hard for th e Court to establish discrimination , provided that the authorities meant to include sexual minorities among national minorities. Owing to the fact that the authorities chose to invent and put forward new reasons, the authorities themselves provided the underlying material to enable th e Court to establish a discriminatory intent. Looking at the different reasons and the sequence in which they were given, one can now safely deduce that the first reasons given were only designed to cover up the real reasoning behind the refusal. The same applies to the last reasons given: it would be totally unrealistic to accept that the permission was initially refused because the organisers had not assumed any responsibility as regards the demonstration ’ s good management. Admittedly, the Supreme Court in its decision of 18 October 2006 paid much attention to this new line of reasoning. But if that had been the real reason behind the refusal, it should have been put forward right at the beginning. And again, if that had been the case, it would have been hard for the Court to establish an intent to discriminat e .

That leaves us with the simple conclusion that the refusal must have had to do with a reason which the authorities did not dare to mention. And the only logical reason which is left is: they did not give authorisation because apparently they did not want a demonstration which had to do with the rights of sexual minorities/homosexuals. Is it fair to draw that conclusion? Yes, in the circumstances of the case, this is possible . The first new line of reasoning, as referred to in para graph 12, is sufficiently conclusive in this regard .

Maybe the authorities did in fact refuse the authorisation because of , as the majority put it, their “ disapproval of demonstrations which they considered to promote homosexuality ” ( see para graph 5 4 of the judgment ). However, I wonder where the majority find any indication that a proposed demonstration to encourage the passing of laws to protect sexual minorities was also intended to promote homosexuality as such, or that the authorities considered that the demonstration would promote homosexuality.

JOINT DISSENTING OPINION OF JUDGES GYULUMYAN AND ZIEMELE

1. We do not share the view of the majority regarding the violation of Article 14 in conjunction with Article 11 as set out in their reasoning. The majority base their view on two main grounds. First , they find that the Government ha ve not convincingly proved their alleg ation that there was a systemic problem concerning the exercise of freedom of assembly. The Government claimed that assemblies were not allowed in general , whereas the applicant association show ed that some assemblies had in fact been allowed. The majority consider that this fact indicates a difference in treatment in relation to the applicant association . Second , the majority find that the arguments of the Chişinău Mayor ’ s Office in the court proceedings were of a discriminatory character. The majority also state that all the relevant levels of authority provided different reason s .

This is one possible way of reading the arguments of the parties in the case. There is , however , another way of interpret ing these arguments. For example , the statement by the Mayor ’ s Office that it ha d received protest letters from numerous Moldovan citizens asking it to prohibit the gay parade is most likely true. The fact that the Mayor ’ s Office brought this fact to the attention of the national courts per se does not confirm that it adopted a discriminatory attitude or , for that matter, that the national courts agree d or disagree d with its request. In the final instance the national court s mentioned two grounds for their decision to uphold the ban imposed by the Mayor ’ s Office. The first ground was the danger to public order and morality and the second ground was that the organisers ha d not complied with the prescription of the law requir ing them to accept responsibility for the event. These reasons in themselves are neither discriminatory nor unreasonable. The fact that two different compositions of the same court might disagree on the outcome of the case is not arbitrary in itself either.

2. What should have been the test to be applied in this case? The majority correctly refer to the principles developed in Kozak v. Poland (no. 13102/02 , 2 March 2010 ), in which the Court said that where a difference in treatment was based solely on sexual orientation , it constituted a violation of the Convention. In view of this criterion , the majority should have assessed whether the applicant association ’ s assembly was banned solely on this ground , as compared to the other bans of assemblies that the Government referred to , in relation to which the Court has had the opportunity to render several judgments regarding the same period of time. The Government argued that there was a general atmosphere of intolerance towards different views at the time in Moldova . It certainly cannot be said that the applicant association was the only group whose right to assembly was restricted ( contrast Oršuš and Others v. Croatia [GC], no. 15766/03, § 155 , ECHR 2010 ). There may indeed be some truth in what the Government stated about the rather intolerant political situation in the country at the time.

3. The Court ’ s case-law under Article 14 requires a detailed analysis of whether a difference in treatment is discriminatory if we assume that the applicant association was treated differently from others. Such a difference in treatment will amount to discrimination if “it has no objective and reasonable justification” , that is , if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see , among many other authorities , Larkos v. Cyprus [GC] , no. 29515/95 , § 29 , ECHR 1999-I; Stec and Others v. the United Kingdom [GC], no. 65731/01, § 51 , ECHR 2006 - VI ; and D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 196 , ECHR 2007 ‑ IV ). Where the difference in treatment is based on race , colour or ethnic origin , the notion of objective and reasonable justification must be interpreted as strictly as possible (see Sampanis and Others v. Greece , no. 32526/05 , § 69 , 5 June 2008 ) . We might add that in view of the Kozak case (cited above), sexual orientation should be added to this list.

4. As far as we can see , there were reasonable arguments submitted by the Government in explaining the actions of the authorities (see para graph 17 of the judgment ) . The crux of the matter really lies in an assessment of the proportionality of the difference in treatment , as compared to other possible assemblies that were or were not allowed for the same reasons of public order. This analysis is missing. There is a n all too easy a s sumption that the decisions of the national authorities were discriminatory. As we said , this might well be true but in a judicial decision , something more is needed to come to that conclusion .