CASE OF ILASCU AND
OTHERS v.
(Application no. 48787/99)
JUDGMENT
This
judgment is final but may be subject to editorial revision.
TABLE OF CONTENTS
ANNEX
In
the case of Ilascu and Others v.
The
European Court of Human Rights, sitting as a Grand Chamber composed of:
Mr L.
Wildhaber, President,
Mr C.L. Rozakis,
Mr J.-P. Costa,
Mr G. Ress,
Sir Nicolas Bratza,
Mr L. Loucaides,
Mr I. Cabral Barreto,
Mrs F. Tulkens,
Mr C. Bîrsan,
Mr J. Casadevall,
Mr B. Zupancic,
Mr J. Hedigan,
Mrs W. Thomassen,
Mr T. Pantîru,
Mr E. Levits,
Mr A. Kovler,
Mrs E. Fura-Sandström, Judges,
and Mr P.J. Mahoney, Registrar,
Having
deliberated in private on 23 January, 26 February and
Delivers
the following judgment, which was adopted on the last-mentioned date:
INTRODUCTION
1. The
case originated in an application (no. 48787/99) against the Republic of
Moldova and the Russian Federation lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by four Moldovan nationals, Mr Ilie Ilascu, Mr
Alexandru Lesco, Mr Andrei Ivantoc and Mr Tudor Petrov-Popa (“the applicants”),
on 5 April 1999.
2. The
application mainly concerns acts committed by the authorities of the “
3. The
applicants submitted that they had been convicted by a Transdniestrian court
which was not competent for the purposes of Article 6 of the Convention, that
they had not had a fair trial, contrary to the same provision, and that
following their trial they had been deprived of their possessions in breach of
Article 1 of Protocol No. 1. They further contended that their detention in
Transdniestria was not lawful, in breach of Article 5, and that their
conditions of detention contravened Articles 3 and 8 of the Convention. In
addition, Mr Ilascu alleged of a violation of Article 2 of the Convention on
account of the fact that he had been sentenced to death. The applicants argued
that the Moldovan authorities were responsible under the Convention for the
alleged infringements of the rights secured to them thereunder, since they had
not taken any appropriate steps to put an end to them. They further asserted that
the Russian Federation shared responsibility since the territory of
Transdniestria was and is under de facto Russian control on account of
the Russian troops and military equipment stationed there and the support
allegedly given to the separatist regime by the Russian Federation.
Lastly,
the applicants alleged that
PROCEDURE
1. The
admissibility proceedings
4. The
application was allocated to the former First Section of the Court (Rule 52 § 1
of the Rules of Court). The First Section gave notice of the application to the
respondent Governments on
5. On
the
6. The
composition of the Grand Chamber was determined in accordance with Article 27
§§ 2 and 3 of the Convention and Rule 24. At the final deliberations Mr I.
Cabral Barreto and Mr B. Zupancic, substitute judges, replaced Mr L. Ferrari
Bravo and Mr J. Makarczyk, who were unable to take part in the further
consideration of the case (Rule 24 § 3).
7. By
a decision of
In
its decision on admissibility the Court held that the questions whether the
responsibility and jurisdiction of
2. The
proceedings on the merits
(a) Written
observations of the parties
8. After
the application had been declared admissible both the applicants and the
Moldovan and Russian Governments filed written observations on the merits of
the case: the Moldovan Government on 12 November 2001 and 28 January 2002,
the Russian Government on 8 December 2001, and the applicants on 27 September
and 2, 4,12 and 16 November 2001.
Observations
were also submitted by the Romanian Government, whom the President had invited
to intervene in the proceedings in the interests of the proper administration
of justice (Article 36 of the Convention and Rule 61 §§ 2 and 3). The parties
replied (Rule 61 § 5). A request to intervene was also submitted by Mrs Ludmila
Gusar, a civil party in the proceedings which led to the applicants’ conviction
by the “Supreme Court of the MRT”. The President of the Grand Chamber refused
her request.
9. After
the witness hearings (see paragraphs 12 to 15 below), the parties were invited
by the President to file their final observations by
10. On
12 January 2004 the President of the Grand Chamber decided to invite the
respondent Governments under Rule 39 to take all necessary steps to ensure that
Mr Ivantoc, who had been on hunger strike since 28 December 2003, was
detained in conditions which were consistent with respect for his rights under
the Convention. The parties were invited, in accordance with Rule 24 § 2 (a),
to provide information about the implementation of the interim measures
requested. Mr Ivantoc’s representative, Mr Gribincea, and the Moldovan
Government provided the Court with the information requested in letters dated
24 and
11. On
(b) The
witness hearings
12. In
order to clarify certain disputed points and, in particular, the question
whether
The
Court appointed four delegates, Mr G. Ress, Sir Nicolas Bratza, Mr J.
Casadevall and Mr E. Levits, who heard witness evidence in Chisinau and
13.
In all, the delegates took evidence from 43 witnesses called by the parties and
the Court. The head of the delegation allowed an application by three of the
witnesses to remain anonymous and they were accordingly designated by the
letters X., Y. and Z.
14. Seven
other witnesses summoned to give evidence to the delegates did not appear.
After the end of the hearings, at the delegates’ request, the parties submitted
written explanations of the reasons for these witnesses’ failure to appear and
the steps taken to transmit the Court’s summonses to them.
The
following witnesses did not appear: Olga Capatina, who had been admitted to
hospital just before the hearings, after being assaulted; Vladimir Gorbov and
Mikhaïl Bergman, whom the respondent Governments said they had been unable to
contact; Petru Godiac, whose absence has not been explained; Valeriu Pasat, who
was not present in Moldovan territory; and lastly Valeriu Muravschi and Petru
Tabuica, who have not given reasons for their absence.
15. A
list of the witnesses who appeared before the delegates and a summary of their
statements are to be found in the annex to the present judgment. A verbatim
record of the witnesses’ statements to the delegates was also produced by the
Registry and included in the case-file.
(c) The
documentary evidence
16. In
addition to the observations of the parties and the witnesses’ statements, the
Court took account of the numerous documents submitted by the parties and the
Transdniestrian authorities throughout the proceedings: letters from Mr Ilie
Ilascu; statements and letters from Mr Andrei Ivantoc; documents from the Moldovan
authorities concerning the investigations into the applicants’ arrest and
detention; written statements by witnesses, including Olga Capatina and Petru
Godiac; documents concerning the applicants’ trial in the “Supreme Court of the
MRT” and the “pardon” granted to Mr Ilascu; documents and statements about
Transdniestria and the present application from various administrative
authorities in Moldova and the Russian Federation; press cuttings about
statements made by politicians and other officials of the Russian Federation;
official documents concerning the military presence of the Russian Federation
in Transdniestria and resolution of the Transdniestrian conflict, including
treaties and agreements between Moldova and Transdniestria and between the Russian
Federation and Transdniestria, and video cassettes about the fighting in 1992
and the situation in Transdniestria.
17. The
Court also consulted certain documents filed by the “Ministry of Justice of the
MRT” through the OSCE mission in Chisinau, particularly extracts from the
applicants’ medical files and the registers recording the visits and parcels
they had received in their places of detention. The respondent Governments also
filed documents from the Commission responsible for supervising implementation
of the agreement of
18. Lastly,
the Court had access to a number of public documents about Transdniestria and
the situation of the applicants from international organisations and bodies
such as the OSCE, the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (“the CPT”), the Parliamentary
Assembly of the Council of Europe, the Council of Europe’s Commissioner for
Human Rights and the Governing Council of the Inter-Parliamentary Union.
THE FACTS
I. THE
APPLICANTS
19. The
applicants, who were Moldovan nationals when the application was lodged, were
born in 1952, 1955, 1961 and 1963 respectively. At the time when they lodged
their application the applicants were detained in the Transdniestrian part of
20. Although
detained, Mr Ilascu was twice elected to the Moldovan Parliament, from 1994 to
2000. As a member of parliament, he was appointed to form part of the Moldovan
delegation to the Parliamentary Assembly of the Council of Europe. On
21. Mr
Lesco and Mr Ivantoc acquired Romanian nationality in 2001.
22. Mr
Ilascu was released on
23. In
view of the fact that, in the applicants’ submission, it was impossible for
them to apply to the Court directly, the application was lodged by their wives,
Mrs Nina Ilascu, Mrs Tatiana Lesco and Mrs Eudochia Ivantoc, and by the
fourth applicant’s sister, Mrs Raisa Petrov-Popa.
24. The
second applicant was represented before the Court by Mr Alexandru Tanase,
of the Chisinau Bar. The other applicants were represented by Mr Corneliu Dinu,
of the Bucharest Bar, until his death in December 2002. Since January 2003 they
have been represented by Mr Vladislav Gribincea, of the Chisinau Bar.
II. ESTABLISHMENT OF THE FACTS
25. In
order to establish the facts the Court based itself on documentary evidence,
the observations of the parties and the statements of the witnesses who gave
evidence on the spot, in Chisinau and
26. In
assessing the evidence for the purpose of establishing the facts, the Court
considers that the following elements are relevant.
(i) In
assessing both written and oral evidence the Court has hitherto generally
applied “beyond a reasonable doubt” as the standard of proof required. Such
proof may follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact; in
addition, the conduct of the parties in relation to the Court’s efforts to
obtain evidence may constitute an element to be taken into account (see, mutatis
mutandis, Ireland v. the United Kingdom, judgment of
18 January 1978, Series A no. 25, pp. 64-65, § 161; and Salman
v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).
(ii) As
regards the statements taken down by the delegates, the Court is aware of the
difficulties that may arise in assessing such depositions obtained through
interpreters: it has therefore paid particular attention to the meaning and
weight to be given to the witnesses’ statements to the delegates. The Court is
likewise aware that a large number of relevant facts concern events which took
place more than ten years ago in an obscure and particularly complex context,
which makes some degree of imprecision about dates and other details inevitable.
It does not consider that that in itself can cast
doubt on the credibility of the witness evidence.
(iii) In
a case where there are contradictory and opposing accounts of the facts the
Court is inevitably confronted with difficulties which any court of first
instance is bound to meet when seeking to establish the facts, regard being
had, for example, to the fact that it does not have direct and detailed
knowledge of the conditions obtaining in the region. Moreover, the Court has no
powers to compel witnesses to appear. In the present case, out of 51 witnesses
called, seven did not appear before the delegates. Consequently, the Court
found itself having to deal with the difficult task of establishing the facts
in the absence of potentially important depositions.
27. With
the assistance of the parties, the Court conducted an on-the-spot
investigation, in the course of which it took evidence from the following
forty-three witnesses:
(a)
on the particular circumstances of the applicants’ arrest, conviction and
detention: the applicants; Mrs Tatiana Lesco and Mrs Eudochia
Ivantoc, the wives of the second and third applicants; Mrs Raisa
Petrov-Popa, the sister of the fourth applicant; Mr Stefan Urîtu,
detained in 1992 with the applicants; Mr Constantin Tîbîrna, a
doctor who examined the applicants in 1995-1998 while they were detained in
Tiraspol and Hlinaia; Mr Nicolae Lesanu, a doctor who examined the
applicants in 1995-1997 while they were detained in Tiraspol and Hlinaia; Mr Vladimir
Golovachev, the governor of Tiraspol no. 2 Prison; Mr Stepan
Tcherbebchi, the governor of Hlinaia Prison from 1992 to 2001; Mr Sergey
Kotovoy, the governor of Hlinaia Prison; Mr Yefim Samsonov,
“Director of the Prison Medical Service of the MRT”; and Mr Vasiliy Semenchuk,
a doctor at Hlinaia Prison since 1995;
(b)
on the measures taken by Moldova to secure the applicants’ release and on
relations between Moldova, the Russian Federation and Transdniestria, various
Moldovan officials and politicians: Mr Dumitru Postovan,
Attorney-General of Moldova from 1990 until July 1998; Mr Valeriu
Catana, Attorney-General of Moldova from 31 July 1998 to 29 July 1999;
Mr Vasile Rusu, Attorney-General of Moldova since 18 May 2001;
Mr Vasile Sturza, Deputy Attorney-General of Moldova from 1990 to 1994
and Minister of Justice from 1994 to 1998; Z., a former Moldovan
Government Minister; Mr Victor Vieru, Deputy Minister of Justice since
2001; X., a former Moldovan senior official; Mr Mircea Snegur,
President of Moldova from 1990 to 1996; Mr Alexandru Mosanu, President
of the Moldovan Parliament from 1990 to 1992 ; Y., a former
Moldovan diplomat; Mr Andrei Sangheli, Prime Minister of Moldova from
1992 to 1997; Mr Anatol Plugaru, Moldova’s Minister of Security in
1991-1992; Mr Nicolai Petrica, General in the Moldovan army from
1992 to 1993; Mr Andrei Stratan, former director of Customs; Mr
Vladimir Molojen, director of the Information Technology Department; Mr
Ion Costas, Minister of Defence in 1991-1992 ; Mr Valentin Sereda,
Director of the Moldovan Prisons Service; Mr Victor Berlinschi, member
of the Moldovan Parliament from 1990 to 1994 ; Mr Constantin Obroc,
Deputy Prime Minister in 1991-1992 and adviser to the President of Moldova from
1993 to 1996; Mr Mikhail Sidorov, member of the Moldovan Parliament; and
Mr Pavel Creanga, Moldovan Minister of Defence from 1992 to 1997;
(c)
on the presence of the ROG and the Russian Federation’s peacekeeping troops in
the Transdniestrian region of Moldova, soldiers from those units: General Boris
Sergeyev, commander of the ROG; Colonel Alexander Verguz, officer
commanding the ROG; Lieutenant-Colonel Vitalius Radzaevichus, former
member of the command structure of the ROG; Colonel Anatoliy Zverev,
commander of the Russian Federation’s peacekeeping troops in the
Transdniestrian region of Moldova; Lieutenant-Colonel Boris Levitskiy,
president of the military tribunal attached to the ROG; Lieutenant-Colonel Valeriy
Shamayev, military prosecutor attached to the ROG; and Vasiliy
Timoshenko, former military prosecutor attached to the Fourteenth Army and
the ROG.
III. THE GENERAL BACKGROUND TO THE
CASE
A. The
dissolution of the
1. The dissolution of the USSR, the break-away of
Transdniestria and Moldovan independence
28. The
Moldavian Soviet Socialist Republic, which was set up by a decision of the
Supreme Soviet of the USSR on 2 August 1940, was formed from a part of
Bessarabia taken from Romania on 28 June 1940 following the Molotov-Ribbentrop
pact between the USSR and Germany, where the majority of the population were
Romanian speakers, and a strip of land on the left bank of the Dniester in
Ukraine (USSR), Transdniestria, which was transferred to it in 1940 and is inhabited
by a population whose linguistic composition in 1989, according to publicly
available information, was 40% Moldavian, 28% Ukrainian, 24% Russian and 8%
others. Russian became the new Soviet republic’s official language. In public
life the Soviet authorities imposed the use of Cyrillic script for written
Romanian, which thus became “Moldavian” and took second place after Russian [Note:
Extracts from an information document of 10 June 1994 produced by the OSCE
Conflict Prevention Centre on the subject of the Transdniestrian conflict. The
document concerned, published in English on the Internet portal of the OSCE
mission to
29. In
August and September 1989 the Moldavian Supreme Soviet enacted two laws
introducing the Latin alphabet for written Romanian (Moldavian) and making that
language the country’s first official language, in place of Russian.
On
On
30. On
To
date, the “MRT” has not been recognised by the international community.
31. On
32. After
the declaration of independence of the
33. During
1991 the Fourteenth Army was composed of several thousand soldiers, infantry
units, artillery (notably an anti-aircraft missile system), armoured vehicles
and aircraft (including ‘planes and strike helicopters), and had a number of
ammunition stores, including one of the largest in Europe at Kolbasna in
Transdniestria.
34. In
addition to the weaponry of the Fourteenth Army, DOSAAF, “The Voluntary
Association for Assistance to the Army, Air Force and Navy” (DOSAAF – Dobrovol’noe
Obshchestvo Sodeistviia Armii Aviatsii i Flotu), situated in Moldovan
territory, a State organisation set up in 1951 to prepare the civilian
population for war, had a stock of ammunition.
After the proclamation of
35. On
36. On
37. By
Decree no. 234 of
38. On
39. On
40. On
41. On
2. The
armed conflict (1991 to 1992)
42. The
statements made to the Court’s delegates during the on-the-spot investigation
have confirmed that military operations took place during the conflict (see
Annex, Mr Urîtu, §§ 64-66 and 69-71, X., §§ 218 and 220, Mr Snegur, §§ 230
and 238, Mr Mosanu, §§ 243-245, Y., § 254, Z., §§ 271 and 277-281, General Petrica,
§§ 296-297 and 299, Mr Costas, §§ 401, 405-407 and 409, and Mr Creanga, §§
457-460); these military operations are also attested to by other documents in
the file.
The
respondent Governments did not contest the veracity of the detailed information
set out below, although they gave different interpretations of the facts (see
paragraphs 50, 57, 60, 62 and 63 below).
43. From
1989 onwards movements of resistance to Moldovan independence began to organise
in southern
44. Armed
clashes on a limited scale broke out between the Transdniestrian separatists
and the Moldovan police as early as November 1990 in eastern
45. During
the following months the Transdniestrian authorities created paramilitary units
called “workers’ detachments”, on the basis of which a professional and
fully-equipped “Republican Guard” was formed in 1991 (see the previously cited
OSCE document of
46. The
applicants alleged that on
47. On
48. By
a decree of 5 December 1991 Mr Smirnov decided “[to place] the military units,
attached for the most part to the Odessa military district, deployed in the
Moldavian Republic of Transdniestria under the command of the Head of the
National Defence and Security Department of the Republic of Transdniestria”.
The Head of that Department, Mr Gennady I. Iakovlev, who was also the commander
of the Fourteenth Army (see paragraph 53 below), was requested to take all
necessary measures to put an end to transfers and handovers of weaponry,
equipment and other property of the Soviet Army in the possession of the
military units deployed in Transdniestria. The declared aim of that measure was
to preserve, for the benefit of the Transdniestrian separatist regime, the
weapons, equipment and assets of the Soviet army in Transdniestria.
49. In
December 1991 the Moldovan authorities arrested Lieutenant-General Iakovlev in
Ukrainian territory, accusing him of helping the Transdniestrian separatists to
arm themselves by using the weapons stocks of the Fourteenth Army. He was taken
to Moldovan territory for the purposes of the investigation.
50. According
to the applicants, Lieutenant-General Iakovlev was arrested by the Moldovan
authorities and accused of arming the separatists. After his arrest he had
allegedly made statements confirming the
The
Moldovan Government did not comment on this point.
Although
several witnesses made the assertion (see Annex, Mr Urîtu, § 66, Mr
Postovan, § 182, Z., § 272, and Mr Plugaru, § 286), the Court cannot
accept that it has been established beyond a reasonable doubt that General
Iakovlev was released in exchange for a number of a Moldovan police officers
held prisoner by the Transdniestrian forces. It has heard different accounts of
the exact reasons for General Iakovlev’s release and, in the absence of any
documentary evidence about what took place during the investigation or about
his release, it can neither dismiss nor accept the
accounts of the witnesses, most of whom, in the delegates’ opinion, were
generally credible.
On
the other hand, the Court notes that all the witnesses questioned on the
subject agreed that a Russian general had travelled from
The
Court accordingly considers it to be established beyond a reasonable doubt that
the authorities of the
51. At
the end of 1991 and the beginning of 1992 violent clashes broke out between the
Transdniestrian separatist forces and the Moldovan security forces, claiming
the lives of several hundred people.
52. The
applicants referred to a number of facts which gave a precise indication of the
course of the fighting. These facts were not contested by the respondent
Governments or rebutted by the witness evidence taken by the delegates during
the on-the-spot investigation.
53. On
6 December 1991, in an appeal to the international community and the United
Nations Security Council, the President of the Republic of Moldova, Mircea
Snegur, the President of the Moldovan Parliament, Alexandru Mosanu, and the
Prime Minister, Valeriu Muravschi, protested against the occupation, on 3
December 1991, of the Moldovan towns of Grigoriopol, Dubasari, Slobozia,
Tiraspol and Ribnita, situated on the left bank of the Dniester, by the Fourteenth
Army, which had been under the command of Lieutenant-General Iakovlev since a
date which has not been specified. They accused the authorities of the
54. By
a decree of
55. In
January 1992 Lieutenant-General Iakovlev was relieved of command of the
Fourteenth Army by the command of the combined armed forces of the CIS. By a
decision of
56. In
1991-92, during clashes with the Moldovan security forces, a number of military
units of the
The
parties disagreed about how these weapons came to be in the possession of the
Transdniestrians.
57. The
applicants submitted that the Fourteenth Army had armed the separatists in two
ways: firstly, ammunition stores belonging to the Fourteenth Army had been
opened up to the separatists; secondly, Fourteenth Army personnel had offered
no resistance when separatist militiamen and civilians tried to seize military
equipment and ammunition. For example, no force had been used against the
Committee of Transdniestrian women, led by Galina Andreeva.
The
Court notes the explanation given by an ROG officer (see Annex, Colonel Verguz,
§ 359) about the forcible seizure of weapons by women and children and observes
that this account was contested by all the Moldovan witnesses questioned on the
subject.
The
Court considers it highly improbable that women and children could have seized
weapons and ammunition guarded by armed military personnel in locked stores
without the guards’ agreement.
In
short, the Court considers it to have been established beyond a reasonable
doubt that Transdniestrian separatists were able to arm themselves with weapons
taken from the stores of the former Fourteenth Army stationed in
Transdniestria. The Fourteenth Army troops chose not to oppose the separatists
who had come to help themselves from the Army’s stores; on the contrary, in
many cases they helped the separatists equip themselves by handing over weapons
and by opening up the ammunition stores to them (see Annex, Mr Urîtu, § 65, Mr
Petrov-Popa, § 130, Mr Postovan, §§ 182 and 201, Mr Costas, § 407 and Mr
Creanga, § 457).
58. The
applicants asserted that Fourteenth Army troops had joined the separatist side
with the evident approval of their superiors.
59. The
Fourteenth Army’s Parcani sapper battalion, under the orders of General
Butkevich, had gone over to the separatist side. That information had been
confirmed by the Russian Government. The applicants went on to say that at the
time of this “transfer” the sappers were in possession of a considerable number
of Kalashnikov rifles, cartridges, TT and Makarov pistols, grenades and
grenade-launchers and air-to-ground rocket-launchers. It was the Parcani
battalion which had destroyed the bridges at Dubasari, Gura Bâcului-Bâcioc and
Cosnita.
The
applicants further asserted that on
In
a written statement sent to the Court by Mr Lesco’s representative on 19
November 2001, Mrs Olga Capatîna, a former volunteer attached to the Moldovan
Ministry of National Security from 15 March to 15 August 1992, said that during
that period, as evidenced by a certificate issued by the Ministry, she had
worked for the general staff of the Russian Army, at the Fourteenth Army’s
command and espionage centre, under the name of Olga Suslina. While working
there she had sent the Moldovan Ministry of National Security hundreds of
documents confirming the participation of Russian troops in the armed
operations and the massive contribution of weapons they had made. She had also
gathered information proving that the separatists’ military operations were
directed by the Fourteenth Army, which coordinated all its actions with the
Ministry of Defence of the
60. The
applicants asserted that thousands of Russian Cossacks had come from
The
Russian Government submitted that Cossacks could be found in other parts of the
world and that everyone had the right to freedom of movement.
The
Court notes that several documents in the file and statements taken down by the
delegates show that large numbers of Cossacks and other Russian nationals went
to Transdniestria to fight alongside the separatists. It further notes that the
Russian Government have not denied this.
The
Court accordingly considers it to be established beyond a reasonable doubt that
large numbers of Russian nationals went to Transdniestria to fight in the ranks
of the Transdniestrian separatists against the Moldovan forces.
61. In
a book published in 1996 by the publishing house Vneshtorgizdat and
entitled “General Lebed – Russian Enigma” the author, Vladimir Polushin,
supplies plentiful evidence, backed up by documentary sources, of the support
given by the
Referring
to this book, the applicants mentioned by way of example the destruction of a
Moldovan unit by the Fourteenth Army at Chitcani on
The
other parties did not comment on the information given in the book.
62. The
applicants further submitted that the bridge abutments on the left bank of the
The
Court notes that one witness, directly involved at the highest level in the
military operations during the conflict, asserted that part of the territory on
the left bank of the Dniester had been mined, that this work had been done by
specialists and that after the end of the conflict the Moldovan Army had had to
have recourse to foreign specialists in order to demine the area (see Annex, Mr
Costas, § 406). That information was not disputed by the other parties.
Taking
account of the witness’s credibility also, the Court can take it to be
established that part of Moldovan territory situated on the left bank of the
63. The
Moldovan Government asserted that they had never claimed that the army of the
On
the contrary, they asserted, as appeared from the witness evidence taken by the
Court’s delegates, that the Fourteenth Army had
intervened actively, both directly and indirectly, in the Transdniestrian
conflict, against the armed forces of
64. The
Russian Government argued that the former Fourteenth Army had been in
The
Russian Government went on to say that the
65. The
Court notes that all the Moldovan witnesses questioned categorically confirmed
the active involvement, whether direct or indirect, of the Fourteenth Army, and
later of the ROG, in the transfer of weapons to the Transdniestrian
separatists. They also confirmed the participation of Russian troops in the
conflict, particularly the involvement of tanks bearing the flag of the Russian
Federation, shots fired towards the Moldovan positions from units of the
Fourteenth Army and the transfer of a large number of Fourteenth Army troops to
the reserve so that they could fight alongside the Transdniestrians or train
them (see Annex, Mr Costas, § 406, Mr Creanga, § 457).
These
assertions are corroborated by the information contained in OSCE report no. 7
of 29 July 1993, added to the file by the Romanian Government, and by other
sources (see Annex, Mr Mosanu, § 244). In that connection, the Court notes both
the abundance and the detailed nature of the information in its possession on
this subject.
It
sees no reason to doubt the credibility of the Moldovan witnesses heard and
notes that their assertions are corroborated by the Moldovan Government, who
confirmed these facts in all of the observations they submitted throughout the
proceedings.
As
to the Russian Government’s allegation that the witnesses belonged to political
circles opposed to the
Moreover,
it is not possible for the Court to determine precisely on the basis of the
statements taken what the relative strengths of the combatants were. However,
regard being had to the support given by the troops of the Fourteenth Army to
the separatist forces and the massive transfer of arms and ammunition from the
Fourteenth Army’s stores to the separatists, it is certain that the Moldovan
army was in a position of inferiority which prevented it from regaining control
of Transdniestria (see Annex, Z., § 271, Mr Costas, § 401).
66. On
67. On
68. On
24 March 1992 the Moldovan Parliament protested about interference by the
Russian Federation in Moldovan affairs after the Presidium of the Supreme
Soviet of the Russian Federation had issued a declaration on 20 March 1992
recommending to Moldova solutions for the settlement of the Transdniestrian
conflict consistent with respect for the rights of the “Transdniestrian
people”.
69. On
70. By
Decree no. 320 of 1 April 1992 the President of the Russian Federation placed
the military formations of the former USSR stationed in Moldovan territory,
including those on the left bank of the Dniester, under the jurisdiction of the
Russian Federation, so that the Fourteenth Army became the Russian Operational
Group in the Transdniestrian region of the Republic of Moldova (“the ROG” or
“the former Fourteenth Army”).
71. By
Decree no. 84 of
72. On
2 April 1992 General Netkachev, the commander of the ROG (the former Fourteenth
Army), ordered the Moldovan forces which had encircled the town of Tighina
(Bender), held by the separatists, to withdraw immediately, failing which the
Russian army would take counter-measures.
73. The
applicants alleged that after that ultimatum from General Netkachev joint
military exercises between the Fourteenth Army and the separatists began on the
former’s shooting range in
74. On
75. On
76. By
Order no. 026 of
Three
military units which had been part of the Fourteenth Army decided to join the
new army of the
The
soldiers of the 115th independent battalion of sappers and firemen of the
former Fourteenth Army refused to enlist in the armed forces of
77. In
a message sent in April 1992 to the commander-in-chief of the combined armed
forces of the CIS the President of Moldova, Mr Snegur, declared that the events
in Transdniestria were prompted and supported by “the imperial and
pro-communist structures of the former USSR and their legal successors” and
that the former Fourteenth Army had not been neutral in the conflict. In that
connection he emphasised that the Transdniestrian military formations were
equipped with modern weapons which had belonged to the former Soviet army and
that large numbers of Russian citizens had taken part in the conflict on the
separatist side as mercenaries.
78. In
a letter sent in April 1992 to the leaders of the member countries of the
United Nations Security Council, the OSCE and the CIS, Mr Snegur accused the
commander of the Fourteenth Army of arming the Transdniestrian units in
December 1991 and complained of the attitude of the 6th
Congress of Deputies of the Russian Federation, which had called for the
continuing presence in Moldova of units of the army of the Russian Federation
as “pacification forces”. Lastly, Mr Snegur observed that one essential
condition for the peaceful settlement of the Transdniestrian conflict was the rapid
withdrawal of the army of the
79. On
80. This
protest was also directed against speeches deemed to be “full of aggression”
towards Moldova made in Tiraspol and Moscow by Mr Rutskoy, the
Vice-President of the Russian Federation, and against a statement made on 19
May 1992 by the Military Council of the ROG.
81. On
82. On
83. On
23 June 1992 the President of Moldova, Mr Snegur, asked the Secretary-General
of the United Nations, Mr Boutros Boutros-Ghali, to inform the members of the
UN Security Council of the “assault on the town [of Tighina] by the Fourteenth
Army”, which he viewed as “direct and brutal” interference in the Republic of
Moldova’s internal affairs. He also expressed his concern about the statements
of the President of the Russian Federation, Mr Yeltsin, and its Vice-President,
Mr Rutskoy, “which clearly show[ed] that the Russian Federation [was] not
prepared to abandon the ‘rights’ it no longer possess[ed], either de jure
or de facto, over a territory that no longer belong[ed] to it after the
dismemberment of the Soviet empire”. Mr Snegur concluded: “The threats recently
repeated against the legal leaders of the
84. In
the first half of July 1992 intense discussions took place within the CIS about
the possibility of deploying a CIS peacekeeping force in
85. At
a CIS meeting held in
86. On
87. On
21 July 1992 the President of the Republic of Moldova, Mr Snegur, and the
President of the Russian Federation, Mr Yeltsin, signed an agreement on the
principles for the friendly settlement of the armed conflict in the
Transdniestrian region of the Republic of Moldova (“the ceasefire agreement” –
see paragraph 292 below).
The
copy submitted to the Court by the Moldovan Government bears the signatures of
Mr Snegur and Mr Yeltsin only. The Russian Government supplied the Court with a
copy bearing the signatures of Mr Snegur and Mr Yeltsin, as the Presidents
of Moldova and the
Mr
Smirnov’s signature is not on the copy submitted by the Moldovan Government. In
his statement to the Court’s delegates, Mr Snegur confirmed that the official
document in two copies was signed by him and Mr Yeltsin only (see Annex, Mr
Snegur, § 228).
As
appears from the witness evidence given to the Court, the broad lines of the
agreement were drafted by the Russian side, which presented it for signature to
the Moldovans (see Annex, Z., § 281).
88. The
Russian Government argued that under the terms of Article 4 of the agreement of
21 July 1992 the Russian Federation signed the agreement not as a party to the
conflict but as a peace-broker.
89. The
agreement introduced the principle of a security zone to be created by the
withdrawal of the armies of the “parties to the conflict” (Article 1 § 2).
90. Under
Article 2 of the agreement a Joint Control Commission (“the JCC”) was set up,
composed of representatives of
The
agreement also provided for peacekeeping forces charged with ensuring
observance of the ceasefire and security arrangements, composed of five Russian
battalions, three Moldovan battalions and two Transdniestrian battalions under
the orders of a joint military command structure which was itself subordinate
to the JCC.
91. Under
Article 3 of the agreement the town of Tighina was declared a region subject to
a security regime and its administration was put in the hands of “local organs
of self-government, if necessary acting together with the Control Commission”.
The JCC was given the task of maintaining order in Tighina, together with the
police.
Article
4 required the former Fourteenth Army of the
Lastly,
the measures provided for in the agreement were defined as “a very important
part of the settlement of the conflict by political means” (Article 7).
3. Events
after the armed conflict
92. On
93. On
Article
2 of the agreement provided that the withdrawal of the Russian army from
Moldovan territory was to be synchronised with the political settlement of the
Transdniestrian conflict and the establishment of special status for the
“Transdniestrian region of the
This
agreement was not ratified by the authorities of the
94. The
applicants submitted that the Russian peacekeeping forces did not maintain
strict neutrality but had favoured the Transdniestrians by allowing them to
change the balance of forces which had obtained between the parties at the time
of the ceasefire of
95. On
28 December 1995 the Moldovan delegation to the JCC sent a letter to the head
of the Russian delegation to the JCC protesting about a proposal by the deputy
commander of the Russian Federation’s land forces to transfer the powers of the
Russian peacekeeping units to the units of the ROG, which the Moldovan
delegation considered to be contrary to Article 4 of the agreement of 21 July
1992. The proposal was also deemed unacceptable in view of “a certain level of
politicisation of the men of the ROG and their lack of impartiality vis-à-vis
the parties to the conflict”. The Moldovan delegation referred to a number of
infringements of the principle of neutrality set forth in the agreement of 21 July
1992, which included: the transfer of certain military equipment and ammunition
by the Fourteenth Army to the unconstitutional authorities in Tiraspol;
training of “MRT” troops by the Russian army; and transfers of military units
from the Fourteenth Army to the “MRT” side – for example, the Parcani sapper
battalion, converted into an “MRT” artillery unit - the transfer of the
fortress of Tighina/Bender to the 2nd “MRT” infantry brigade or the transfer to
the “MRT” of the Slobozia depot, occupied by a Fourteenth Army signals
battalion.
The
Moldovan delegation drew attention to the fact that “MRT” military units had
been brought into the security zone with the connivance of the JCC’s Russian
troops, that new paramilitary units had been formed in the town of
Tighina/Bender, which had been declared a security zone and was under the
responsibility of the Russian peacekeeping forces, and that firms in
Tighina/Bender and Tiraspol were manufacturing weapons and ammunition.
The
Moldovan delegation asked their Government to consider the possibility of
replacing the Russian peacekeeping forces in Transdniestria by a multinational
force under the auspices of the United Nations or the OSCE. Lastly, the
Moldovan delegation expressed their hope for rapid implementation of the
agreement of
96. In
a letter dated 17 January 1996 the head of the Russian delegation to the JCC
said that the examples of an alleged lack of impartiality on the part of
Fourteenth Army personnel given by the Moldovan delegation in their letter of
28 December 1995 were “distortions” and untrue. The Russian delegation
considered that the agreement of
97. On
8 May 1997 in Moscow Mr Lucinschi, the President of Moldova, and
Mr Smirnov, the “President of the MRT”, signed a memorandum laying down
the basis for the normalisation of relations between the Republic of Moldova
and Transdniestria, in which they undertook to settle any conflict they might
have through negotiations, with the assistance, where necessary, of the Russian
Federation and Ukraine, as guarantors of compliance with the agreements
reached, and of the OSCE and CIS. The memorandum was countersigned by the representatives
of the guarantor States, namely Mr Yeltsin for the
Under
the terms of the memorandum, the status of Transdniestria is to be based on the
following principles: decisions must be agreed by both sides, powers must be
shared out and delegated and guarantees must be secured reciprocally.
Transdniestria must participate in the conduct of the foreign policy of the
The
memorandum welcomes the willingness of the
98. On
20 March 1998 representatives of Moldova, Transdniestria, the Russian
Federation and Ukraine signed in Odessa (Ukraine) a number of documents
intended to secure the settlement of the Transdniestrian conflict (see
paragraph 123 below).
99. In
observations submitted in 1999 about a draft report on Moldova by the
Parliamentary Assembly’s Committee on the honouring of obligations and
commitments by member states of the Council of Europe, the Moldovan Government
indicated that the separatist authorities were illegally removing weapons from
the ROG’s stores “with the tacit agreement of the authorities of the Russian
Federation, whose peacekeeping forces are deployed in the security zone of the
Transdniestrian Region of Moldova”.
100. In
a letter of
The
Russian Government asserted that the peacekeeping forces respected the
neutrality required by the agreement of
The
Court notes the witness evidence given by the commander of the Russian
peacekeeping forces, Colonel Zverev (see Annex, § 368), to the effect that the
Russian peacekeeping forces complied with the agreement. The witness further
declared that he was not aware of illegal acts by Transdniestrians in the zone
controlled by the Russian forces.
The
Court observes however that the evidence in question is contradicted by the
JCC’s official documents, which show, with an abundance of details, that in
various areas of Transdniestria under the control of the Russian peacekeeping
forces, such as the area of Benderi/Tighina, Transdniestrian separatist forces
were breaching the ceasefire agreement.
Having
regard to the official nature of the JCC documents and the consistency of the
information they contain, the Court considers it to be established with a
sufficient degree of certainty that, in the area under the responsibility of
the Russian peacekeeping forces, the Transdniestrians have not discharged the
obligations arising for them from the agreement of 21 July 1992.
101. On
“The
Presidents advocated the rapid and fair settlement of the Transdniestrian
conflict by exclusively peaceful means based on respect for the principle of
the
102. In
a document dated 4 September 2001 analysing implementation of the
Moldovan-Russian agreement of 20 March 1998 on the principles for a peaceful
settlement of the armed conflict in the Transdniestria region of the Republic
of Moldova, the Moldovan delegation to the JCC pointed to the failure of the
Transdniestrian side to fulfil their obligations, in that they had created new
military units, introduced weapons into the security zone and set up customs
posts. The Moldovan delegation expressed its concern about the fact that the
joint military command had not taken any suitable steps to put an end to the
situation but had merely noted the facts. The Moldovan delegation proposed that
concrete measures to ensure that parties’ undertakings were honoured be
discussed by the Ministries of Foreign Affairs of Moldova and the
103. In
March 2003 the Russian peacekeeping forces in Transdniestria comprised 294
soldiers, 17 armoured vehicles, 29 other vehicles and 264 firearms.
To
date, according to the witness evidence given to the Court (see Annex, Colonel
Anatoliy Zverev, § 367), no soldier of the former Fourteenth Army or the ROG
has been employed in the Russian peacekeeping forces.
104. Contacts
with the Transdniestrian side continue to take place to discuss various aspects
of a possible solution to the situation in Transdniestria.
105. At
these negotiations the Moldovan side persuaded the Transdniestrians to set up a
commission to examine the possibility of pardoning all persons convicted and
detained in Transdniestria as a result of judgments pronounced by the
Transdniestrian courts (see Annex, Mr Vasile Sturza, §§ 309, 312 and 318).
106. One
of the subjects regularly placed on the negotiations agenda is the immunity
from prosecution requested by the Transdniestrian side for civil servants and
officials of the Transdniestrian administration (see Annex, Mr Sturza, § 314,
and Mr Sidorov, § 446).
107. Since
2002 a number of plans to give
108. The
most recent negotiations, conducted with the help of the OSCE, were based on
proposals aimed at setting up a federal State in which Transdniestria would be
autonomous.
109. On
110. According
to a press release put out by the OSCE mission in
B. The presence of the army of the
1. ROG
troops and equipment in Transdniestria
(a) Before
ratification of the Convention by the
111. As
provided for in Article 4 of the ceasefire agreement of
Russia
proposed in 1994 that the ROG’s withdrawal from Moldovan territory should be
timed to coincide with settlement of the Transdniestrian conflict (see
paragraph 93 above), and Moldova accepted that proposal, which it considered
counterproductive, on Russia’s insistence and only after persuading Russia to
declare itself in favour of the speedy release of the members of the Ilascu
group (see Annex, Y., § 254).
In
a press release of 12 February 2004 the Moldovan Ministry of Foreign Affairs
said that the Moldovan authorities were categorically opposed to any
synchronisation between the political settlement of the Transdniestrian
conflict and the withdrawal of the Russian armed forces from Moldovan
territory, and that they sought the complete and unconditional withdrawal of
the Russian armed forces, in accordance with the OSCE’s decisions (see
paragraph 124 below), especially as the OSCE member States had set up a
voluntary fund to finance the withdrawal in question.
112. Article
2 of the agreement of 21 October 1994 (“the first agreement”) provided for the
withdrawal by Russia of its military formations within three years from the
entry into force of the agreement, with implementation of the withdrawal within
the time-limit to take place simultaneously with a political settlement of the
Transdniestrian conflict and the establishment of a special status for the
“Transdniestrian region of the Republic of Moldova” (see paragraph 296 below).
As regards the stages and dates for the final withdrawal of Russian troops,
Article 2 provided that these were to be determined in a separate protocol to
be concluded between the parties’ Ministries of Defence.
113. Under
Article 5 of the agreement, the sale of any type of military technology, weapon
or ammunition belonging to the military forces of the
114. According
to Article 7 of the agreement,
115. On
The
second agreement was approved only by the Moldovan Government, on
116. The
Moldovan Government emphasised that the words “civil aviation of the
Transdniestrian region of the
The
Russian Government submitted that these words meant the present local
authorities, which were seen as a mere business partner. They maintained that
this did not amount in any way to official or political recognition of the
“MRT”.
117. The
Court notes, firstly, that neither of the agreements of
It
further notes that, according to the witness evidence of Mr Sergeyev, the
commander of the ROG,
Flight
security at
118. It
appears from a study by Mr Iurie Pintea, “The military aspect of a settlement
of the conflict in the eastern region of the Republic of Moldova” (published by
the Moldovan Public Policy Institute in August 2001 and submitted to the Court
by the applicants), “MRT” military formations have taken over the control tower
and the technical installations of Tiraspol airport, in breach of the agreement
of 21 October 1994, while the ROG part of the airport is allegedly used for
purposes other than those mentioned in the agreement, for example for visits to
Transdniestria by Russian politicians and for arms sales transactions.
The
other parties did not comment on the above information.
119. Article
13 of the first agreement provides that all accommodation, barracks, vehicle
parks, shooting ranges and fixed machine tools, stores and the tools they
contain left unused after the withdrawal of the military formations of the
Russian Federation are to be transferred for management “to the organs of the
local public administrative authorities of the Republic of Moldova” in the
quantity existing de facto. It also provides that the arrangements for
the transfer or sale of the immovable property assets of the Russian military
are to be determined in an agreement to be reached for that purpose between the
parties’ Governments.
120. According
to Article 17 of the agreement, with a view to ensuring the withdrawal of the
military formations of the Russian Federation from the territory of the
Republic of Moldova within the time-limit and their effective deployment in their
new stations in the territory of the Russian Federation, the Republic of
Moldova is required to contribute a portion of the costs for the construction
inside the territory of the Russian Federation of the premises needed for their
installation.
121. In
its Opinion No. 193 of 1996 on the accession of the Russian Federation to the
Council of Europe, the Parliamentary Assembly of the Council of Europe noted
the intention expressed by the Russian Federation “to ratify, within six months
from the time of accession, the agreement of 21 October 1994 between the
Russian and Moldovan Governments, and to continue the withdrawal of the
Fourteenth Army and its equipment from the territory of Moldova within a
time-limit of three years from the date of signature of the agreement”.
122. In
a report dated
Consequently,
the principal military prosecutor asked the Minister of Defence of the Russian
Federation to take additional measures to put an end to the breaches of the law
noted within the ROG, to consider whether to bring disciplinary proceedings
against Lieutenant-General E. and Major-General D. for failure to maintain
effective control and dereliction of duty, and to inform him of the results.
123. On
According
to the timetable annexed to the agreement, the withdrawal and decommissioning
of certain stocks, to be disposed of by explosions or some other mechanical
process, was to be completed by 31 December 2001, subject, among other
conditions, to authorisation by the authorities of the Republic of Moldova,
“particularly of the region of Transdniestria”.
The
withdrawal (transfer and decommissioning) of surplus ammunition and other ROG
equipment was planned to take place by
(b) After
ratification of the Convention by the
124. In
their declaration at the
125. In
observations submitted in 1999 to the Parliamentary Assembly of the Council of
Europe the Moldovan Government asserted that on that date the official figure
put forward by the Russian authorities for the quantity of ROG arms and
ammunition stocked in Transdniestria was 42,000 tonnes, but that it had not
been possible to verify that figure, since both the Russian authorities and the
Transdniestrian separatists had refused to countenance an international
assessment mission.
The
Moldovan authorities drew attention to the fact that any withdrawal of ROG
personnel not accompanied by removal of the ROG’s enormous weapons stocks would
increase the risk that Transdniestrian separatists would get their hands on
these weapons.
126. A
number of trainloads of equipment belonging to the ROG were moved out between
1999 and 2002.
127. On
128. On
129. According
to a document submitted to the Court in November 2002 by the Moldovan
Government, the volume of high-tech weaponry, ammunition and military equipment
belonging to the ROG which had been withdrawn by November 2002 from the
territory of the Republic of Moldova by virtue of the agreement of 21 October
1994 represented only 15% of the total volume declared in 1994 as being
stationed in Moldovan territory.
130. According
to an OSCE press release, 29 railway wagons carrying bridge-building equipment
and field kitchens were moved out on
The
same press release quoted a declaration by the commander-in-chief of the ROG,
General Boris Sergeyev, to the effect that the latest withdrawals had been made
possible by an agreement with the Transdniestrians under which the
Transdniestrian authorities were to receive half of the non-military equipment
and supplies withdrawn. General Sergeyev cited the example of the
withdrawal, on
131. In
June 2001, according to information supplied to the Court by the Russian
Government, the ROG still had some 2,200 troops in Transdniestria. In his
witness evidence General Sergeyev asserted that in 2002 the ROG’s numbers had
shrunk to just under 1,500 troops (see Annex, § 338). The Court has not
received any precise information about the quantity of arms and ammunition
stocked by the ROG in Transdniestria. According to the applicants and the
witness evidence taken by the Court’s delegates (see Annex, Mr Snegur, § 235),
in 2003 the ROG had at least 200,000 tonnes of military equipment and
ammunition there, mainly stored at Kolbasna.
According
to information supplied by the Russian Government in June 2001 and not
contested by the other parties, the ROG had in addition the following
equipment: 106 battle tanks, 42 armoured cars, 109 armoured personnel carriers,
54 armoured reconnaissance vehicles, 123 cannons and mortars, 206 anti-tank
weapons, 226 anti-aircraft guns, 9 helicopters and 1,648 vehicles of various
kinds. In his witness evidence General Sergeyev asserted that 108 battle tanks
had been destroyed during 2002 and that the destruction of anti-aircraft
defence systems was in progress (see Annex, § 341).
2. Relations
between the ROG and the “MRT”
132. ROG
personnel, and the military prosecutors and judges attached to the ROG, did not
receive any specific instructions regarding their relations with the
Transdniestrian authorities (see Annex, Lieutenant-Colonel Shamayev, § 374).
133. ROG
personnel can travel freely in Transdniestrian territory. Before moving troops
or equipment, the ROG informs the Transdniestrian authorities. Occasionally
these movements occasion incidents such as the seizure by the Transdniestrians
of three ROG vehicles (see Annex, Lieutenant-Colonel Radzaevichus, § 363,
and Lieutenant-Colonel Shamayev, § 376). In such cases, and in the absence of
instructions, the ROG authorities try to negotiate directly with the
Transdniestrian authorities. According to the legal provisions in force in the
In
practice, criminal acts of this type are investigated by Transdniestrian
investigators.
134. ROG
investigators are empowered to investigate criminal acts committed by ROG
personnel or with their participation, but only in relation to the individual
soldiers implicated. However, to date, no case of this type has been reported
(see Annex, Lieutenant-Colonel Levitskiy, § 371, and Mr Timoshenko, §
379).
135. According
to the documents submitted to the Court by the Russian Government, ROG
equipment and installations lending themselves to civilian use have been
transferred to the “MRT”. For example, the building in which the applicants
were detained in the 1992 by the Fourteenth Army was transferred in 1998 to the
Transdniestrian separatists. According to the witness evidence given by Mr Timoshenko,
the building is now used by the “MRT prosecution service” (see Annex, § 380).
136. According
to the study by Mr Iurie Pintea (see paragraph 118 above), the Kolbasna
military store was divided in 1994 into two parts, one of which was assigned to
the “MRT”, which installed an ammunition store there for its army. He reported
that security at the “MRT” store was provided, at the time when his study was
published in 2001, by a 300-strong motorised infantry brigade of the “MRT” army
equipped with armoured transport vehicles, anti-tank weapons and mine-throwers,
plus an anti-aircraft battery, which also controlled movement into and out of
the stores as a whole. Security at the ROG store was provided by ROG personnel.
For movement out of the part of the stores which belong to the ROG, a
Transdniestrian customs post has been specially installed. Security and
movement within the stores as a whole could not be monitored from the outside.
C. Economic, political and other relations
between the Russian Federation and Transdniestria
1. Before ratification of the Convention by the
Russian Federation, on
137. From
undated statements to the press, submitted to the Court by the applicants and
not contested by the other parties, it appears that the Vice-President of the
138. In
an undated television appearance reported by the press, as submitted to the
Court by the applicants and not contested by the other parties, the President
of the
139. After
the end of the conflict senior officers of the former Fourteenth Army
participated in public life in Transdniestria. In particular, soldiers of the
former Fourteenth Army took part in the elections in Transdniestria, military
parades of the Transdniestrian forces and other public events. The documents in
the file, and the evidence of several witnesses who agreed on this point and
were not contradicted by the other parties, show that on 11 September 1993
General Lebed, the ROG’s commander, was elected a member of the “Supreme Soviet
of the MRT” (see Annex, Mr Ilascu, § 26, Mr Urîtu, § 72, and X., § 220).
140. The
applicants alleged that a consulate of the
The
Russian Government denied the existence of a Russian consulate in
Transdniestrian territory.
On
27 February 2004 the Moldovan Ministry of Foreign Affairs sent a note to the
Embassy of the Russian Federation in Chisinau in which the Moldovan authorities
expressed their regret about the fact that the authorities of the Russian
Federation had opened 17 fixed polling stations in Transdniestrian territory
for the presidential elections of 17 March 2004 without the agreement of the
Moldovan authorities and that in acting thus the Russian authorities had placed
them before a fait accompli, creating an undesirable precedent. The note
went on to say that the only places where the opening of polling stations was
desirable were the ROG headquarters in
141. The
Court notes that apart from the applicants’ assertions, there is no evidence of
the existence of a Russian consulate in
On
the other hand, the Court takes it as established that fixed consular posts,
operating as polling stations, were opened by the Russian authorities in
Transdniestrian territory without the agreement of the Moldovan authorities.
With
regard to the press articles submitted by the applicants mentioning the
existence of a consular office of the
142. The
applicants asserted that on
143. In
Resolution no. 1334 IGD of
144. Eminent
politicians and representatives of the
For
their part, representatives of the “MRT” regime have travelled to
145. The
applicants also submitted that, several years after the conflict, the support
given by the Russian authorities to the creation of the Transdniestrian regime
was publicly confirmed in a television programme broadcast on an unspecified
date on the Russian channel “TV-CENTRE” in which Mr Voronin, Mr Smirnov and Mr
Khasbulatov were interviewed. During the programme Mr Khasbulatov, who was
President of the Russian Parliament from 1991 to 1993, said that when it became
clear that
The
other parties did not contest these facts.
146. On
19 May 1994 Lieutenant-General Iakovlev, the former commander of the Fourteenth
Army and former head of the “Defence and Security Department of the MRT”,
became a citizen of the
147. In
1997 Mr Maracuta, the “President of the Supreme Soviet of the MRT”, was granted
Russian nationality.
2. After ratification of the Convention by the
148. In
1999 Mr Caraman, one of the “MRT” leaders, also acquired Russian nationality.
149. Mr
Smirnov was granted Russian nationality, in 1997 according to the Russian
Government and in 1999 according to the applicants.
150. According
to the applicants, not contradicted on this point by the other parties, the
arms industry is one of the pillars of the Transdniestrian economy, which is
directly supported by Russian firms involved in arms manufacture in
Transdniestria.
According
to the study by Iurie Pintea (see paragraph 118 above), from 1993 onwards
Transdniestrian arms firms began to specialise in the production of high-tech
weapons, using funds and orders from various Russian companies, including the
Russian arms producer and trader “POCBOOPUZhEHIE”. Russian companies provide
Transdniestrian firms with the technology and equipment they need to
manufacture modern weaponry and military equipment. Transdniestrian firms also
produce components for Russian arms manufacturers. For example, the
Elektrommash company receives from the
151. Citing
Mr Pintea’s study, the applicants submitted that, under the cover of
“withdrawal”, the ROG was supplying Transdniestrian firms with parts and tools
for military use. They alleged that the Râbnita engineering works, which
produces 82 mm mortars, regularly received truckloads of mortars and howitzers
from the ROG stores at Kolbasna, passed off as “destruction of untransportable
ammunition.”
152. In
addition, there was interdependence between Transdniestrian economic and other
interests and the ROG on account of the fact that the ROG employs huge numbers
of the inhabitants of Transdniestria.
According
to the same study by Mr Pintea, nearly 70% of the command structure of the ROG
unit stationed in Kolbasna (including the ammunition store) was made up of
inhabitants of Râbnita and Kolbasna, while 100% of the technical staff of the
Kolbasna stores (head storekeepers, technicians and mechanics) were inhabitants
of the region.
In
all, 50% of the ROG’s officers and 80% of its non-commissioned officers were
inhabitants of the “MRT”.
The
other parties did not contest this information.
153. There
is judicial cooperation for the transfer of prisoners between the
154. The
applicants asserted, citing press articles, that
visits between officials of the
In
addition, between 28 August and 2 September 2001, members of the Duma took part
in the celebrations to mark the 10th
anniversary of the “MRT”‘s declaration of independence.
155. “MRT”
leaders have been awarded official distinctions by various institutions of the
156. The
As
shown by a telegram sent on 17 February 2000 by the chairman of the Russian
group “Gazprom” to the Deputy Prime Minister of Moldova, contracts for
supplying gas to Moldova do not concern Transdniestria, to which gas is
delivered separately on more favourable financial terms than those granted to
the rest of the Republic of Moldova (see Annex, Y., § 261, and Mr Sangheli, §
268).
157. Transdniestria
receives electricity directly from the
158. Products
manufactured in Transdniestria are exported to the Russian market, some of them
being passed off as Russian products (see Annex, Mr Stratan, § 333).
159. The
ROG buys certain products which it needs to supply its troops directly from the
Transdniestrian market (see Annex, General Sergeyev, § 347).
160. Russian
companies have taken part in privatisations in Transdniestria. The documents
submitted by the applicants show that the Russian firm “ITERRA” bought the
largest undertaking in Transdniestria, the Râbnita engineering works, despite
the opposition of the Moldovan authorities.
161. Moreover,
in January 2002 the Moldovan Government submitted to the Court a video cassette
containing a recording of a Russian television programme about Russo-Moldovan
relations and the Transdniestrian regime. The Russian commentator mentioned in
the first place the treaty of friendship recently signed by the
D. Moldovan-Transdniestrian relations
1. Before ratification of the Convention by
Moldova, on
162. The
Moldovan authorities have never officially recognised the organs of the “MRT”,
as a State entity.
163. After
the agreement of
These
contacts were established and maintained mainly through the negotiation
committees and concerned the political question of Transdniestria’s status and
settlement of various aspects of everyday life (economic, social, etc).
164. According
to the concordant statements of several witnesses (see Annex, Mr Urîtu, § 66,
Mr Postovan, § 182, Z., § 272, Mr Plugaru, § 286, and Mr Obroc, § 430), the
first contacts between
165. According
to the concordant statements of several witnesses (see Annex, Mr Urîtu, § 67,
Mr Snegur, § 239, and Mr Sturza, § 311), after the ceasefire of 21 July 1992
private individuals and official delegations involved in the negotiations were
able to travel to Transdniestria. There were sometimes incidents, when
Transdniestrian guards refused access to Transdniestria.
166. As
private individuals, doctors have fairly free access to Transdniestria, whether
for consultations or for professional conferences (see Annex, Mr Tîbîrna, § 84,
and Mr Lesanu, § 85).
167. From
1993 onwards the Moldovan authorities began to bring criminal proceedings
against certain Transdniestrian officials accused of falsely claiming the
status of State officers (see paragraphs 221 and 230 below).
168. Nevertheless,
persons who had acted as senior officials of the “MRT” were able to return to
169. On
2. After ratification of the Convention by
170. Movement
of persons between Transdniestria and the rest of
171. The
applicants alleged that Transdniestrian leaders, including Mr Smirnov, Mr
Maracuta and Mr Caraman, also had Moldovan nationality and were in possession
of Moldovan diplomatic passports. In addition, they asserted that the Moldovan
Government had awarded them official honours.
The
Moldovan Government said that the Transdniestrian leaders did not possess
Moldovan nationality as they had never requested Moldovan identity papers.
The
Court notes that the witness questioned by the delegates on this subject denied
that any Moldovan identity documents whatsoever had been issued to Mr Smirnov,
Mr Maracuta and Mr Caraman (see Annex, Mr Molojen, § 396). In the absence
of corroboration of the applicants’ allegations, the Court considers that it
has not been established beyond a reasonable doubt that the Moldovan
authorities issued passports to Transdniestrian leaders.
172. A
number of senior Moldovan officials, including Mr Sturza, the Minister of
Justice, Deputy Attorney-General and, since 2000, chairman of the Committee for
negotiations with Transdniestria, have continued to visit Tiraspol to meet
Transdniestrian politicians, including Mr Smirnov, Mr Maracuta, the
“Attorney-General of the MRT” and the “President of the Supreme Court of the
MRT”. The main subjects discussed at these meetings have been the applicants’
situation, their release and negotiations about the future status of
Transdniestria, including official decisions taken by Transdniestrian local
authorities (see Annex, Mr Sturza, § 312).
173. On
174. On
175. In
the field of economic cooperation, the applicants asserted that the Moldovan
authorities issued certificates of origin for products from Transdniestria.
The
Moldovan Government did not comment on this allegation.
176. As
regards the alleged practice of the Moldovan authorities of issuing
certificates of origin to goods exported from Transdniestria, as submitted by
the applicants and by the Russian Government, the Court notes that this
allegation was not confirmed by any witness. On the contrary, Mr Stratan,
the Director of Customs, denied the existence of such a practice (see Annex, §
327).
In
these circumstances, in the absence of corroboration of the applicants’
assertions, the Court cannot regard it as established beyond a reasonable doubt
that the Moldovan authorities are conducting a policy of supporting the
Transdniestrian economy through such export certificates.
177. In
addition to the cooperation introduced as a result of the agreement reached by
the President of Moldova and the “President of the MRT”, as established by the
witness evidence taken by the Court’s delegates, there are more or less de
facto relations between the Moldovan and Transdniestrian authorities in
other fields. For example, there are contacts between the Transdniestrian
Ministry of Justice, particularly the prisons service, and the Moldovan
Ministry of Justice (see Annex, Lieutenant-Colonel Samsonov, § 172). There are
also unofficial relations between the Moldovan and Transdniestrian authorities
on judicial and security matters, in the interests of crime prevention.
Although there is no cooperation agreement, Moldovan prosecutors or officers
investigating criminal cases sometimes ring their “colleagues” in
Transdniestria, particularly to obtain information and summon witnesses (see
Annex, Mr Postovan, § 190, and Mr Catana, § 206).
178. There
is a single telephone system for the whole of
179. The
Moldovan Government’s information department issues identity documents
(identity cards) to all persons resident in
180. In
2001, under agreements with the World Trade Organisation, the Moldovan
authorities set up a chain of mixed Moldovan-Ukrainian customs posts along the
border with
181. In
response to the measures mentioned in the previous paragraph, the
Transdniestrian authorities informed the Moldovan authorities, in a letter of
182. The
Moldovan Government asserted that during an incident in 2001 at the railway
junction of Tighina (Bender) the Transdniestrian authorities had blocked 500
wagons containing humanitarian gifts for Moldovan children and elderly persons
and shipments of petroleum and other goods from the European Union on their way
to Moldovan firms.
183. In
a declaration made public on
184. It
appears from a document submitted to the Court by the Moldovan Government on 15
March 2002 that by Order no. 40 of 7 March 2002 the “Minister of
Security of the MRT” refused access to the territory of the “MRT” to the
representatives of the Ministries of Defence and Internal Affairs, the
information and security service and other Moldovan military bodies.
185. Lastly,
the national football championship also includes Transdniestrian teams, and
matches played by the Moldovan football team, including international games,
are often staged in Tiraspol, as was the case for a match against the
Netherlands in April 2003 (see Annex, Mr Sidorov, § 454).
IV. THE PARTICULAR CIRCUMSTANCES OF
THE CASE
186. The
Court summarises below the facts connected with the applicants’ arrest,
pre-trial detention, conviction and conditions of detention, as alleged by the
applicants and confirmed by the documentary evidence and the witnesses’
statements.
It
further notes that, in their written observations of
The
Moldovan Government submitted that the applicants’ allegations about their
conditions of detention were very plausible.
187. The
Russian Government indicated that they had had no knowledge of the
circumstances of the applicants’ arrest, conviction and conditions of detention.
A. The applicants’
arrest, pre-trial detention and conviction
1. The
applicants’ arrest
188. It
appears from the evidence given by the applicants, their wives and Mr Urîtu,
corroborated in general by the statement of Mr Timoshenko, that the applicants
were arrested at their homes in
The
details of their arrest were as follows.
189. The
second applicant, Alexandru Lesco, was arrested on
190. The
first applicant, Ilie Ilascu, who at the material time was the local leader of
the Popular Front (a party represented in the Moldovan Parliament) and was
campaigning for the unification of Moldova with Romania, was arrested on 2 June
1992, at about 4.30 a.m., when 10 to 12 persons armed with automatic pistols
forcibly entered his home in Tiraspol, where they carried out a search and
seized certain objects. These included a pistol which, according to the
applicant, had been placed in his house by the persons searching the premises.
The applicant alleged that his arrest and the search were carried out without a
warrant. He had been informed that he was being arrested because as a member of
the Popular Front he was dangerous for the stability of the “MRT”, which was at
war with
191. The
third applicant, Andrei Ivantoc, was arrested at his home on
192. The
fourth applicant, Tudor Petrov-Popa, was arrested on
193. In
a 140-page indictment drawn up by Public Prosecutor Starojuk, among others, the
applicants were accused of anti-Soviet activities and of fighting by illegal
means against the legitimate State of
194. As
evidenced by the concordant statements of the applicants and other witnesses
(see Annex, Mr Urâtu, §§ 55-56 and 60-61, Mrs Lesco, §§ 30-31, and Mrs
Ivantoc, §§ 38 and 41), the applicants were first taken to Tiraspol police
headquarters, which were probably also the premises of the “Ministry of
Security of the MRT”, where they were interrogated and subjected to
ill-treatment for several days. Their interrogators included Vladimir Gorbov,
“Deputy Minister of Security”, Vladimir Antiufeyev (or Chevtsov), the
“Minister”, and a person named Gushan. Some of the guards and investigators
wore uniforms which were similar, if not identical, to those used by the Soviet
personnel of the Fourteenth Army. During the first days of their detention at
police headquarters the applicants were beaten regularly and severely, and
received practically nothing to eat or drink. The interrogations often took
place at night and during the daytime they were not permitted to rest.
195. The
first applicant said that he had been taken immediately after his arrest into
the office of the Minister of Security of the “MRT”, where there were five
other persons, introduced to him as colonels in the Russian counter-espionage
service. They asked him, in exchange for his release, to place at the service
of Transdniestria the skills he had acquired during his military service with
the
2. Detention
of the first three applicants on the premises of the former Fourteenth Army
196. A
few days after their arrest the first three applicants were taken separately to
the Fourteenth Army garrison headquarters (komendatura) in
The
applicants submitted that during their detention in the territory of the
Fourteenth Army they were guarded by soldiers of that army and that while they
were there Transdniestrian police officers came to see them in their cells.
They also alleged that during this period they were tortured by Fourteenth Army
personnel.
The
Moldovan Government said that in the light of the statements made by the
Moldovan witnesses and Mr Timoshenko to the delegates of the Court it was
apparent that Fourteenth Army personnel had taken part in the applicants’
arrest and interrogation.
In
their observations of
On
the merits, they nevertheless acknowledged that the applicants had been
detained on the premises of the Fourteenth Army, but asserted that this
detention had been of very short duration and that in any event it had been
illegal. The Government said that Military Prosecutor Timoshenko had put a stop
to this illegal detention as soon as he had been informed of it. They did not
comment on the question whether Russian soldiers had taken part in the
applicants’ initial arrest.
They
submitted that, apart from providing cells for the applicants’ detention, the
Fourteenth Army personnel had done nothing illegal. In particular, they had not
guarded the cells in which the applicants were detained. In that connection,
the Government said that the applicants could not have seen Russian insignia on
the warders’ uniforms because the new Russian insignia, which replaced those of
the
The
Russian Government further submitted that Colonel Gusarov (see paragraph 270
below) had not served in the Russian military formations stationed in
Transdniestrian territory but had performed his service at the “Ministry of the
Interior of the MRT”.
197. The
Court notes that the first three applicants alleged that they had been detained
for two months at Fourteenth Army garrison headquarters. (see
Annex, Mr Ilascu, §§ 2, 4 and 11, Mr Urîtu, §§ 55-56, Mr
Ivantoc, §§ 94-95, Mr Lesco, §§ 114 and 117, Mr Petrov-Popa, § 124,
Mrs Lesco, §§ 33-34, Mrs Ivantoc, § 39, and Mrs Petrov-Popa, § 48).
On
that subject, the Court notes that Mr Timoshenko asserted in his witness
evidence (see Annex, § 381) that the applicants had stayed on the premises of
the Fourteenth Army for a very short space of time, although he was unable to
say exactly how long.
Without
casting a general doubt on the testimony of Mr Timoshenko, which it
considers to be credible, the Court considers that it contains a number of
details, including those concerning the length of time the applicants spent on
the premises of the Fourteenth Army, which are confused, and moreover refuted
by other testimony.
198. The
Ilie
Ilascu was subjected to four mock executions. The first time, his death warrant
was read out to him, whereas on the other occasions he was taken out
blindfolded into a field where the warders fired at him with blank cartridges
until he fainted.
The
second applicant was threatened with rape. After a month, as a result of the
blows he had received, the third applicant was admitted to a psychiatric
hospital, where he remained for a month (see Annex, Mr Ivantoc § 97).
199. The
cells had no toilets, no water and no natural light. A light bulb in each cell
was lit permanently. The fold-away beds fixed to the wall were lowered at
The
applicants had only 15 minutes per day for outdoor exercise, in an enclosed area.
During their detention at the Fourteenth Army’s garrison headquarters they were
not able to wash themselves or change their clothes.
The
toilets were along the corridor and the prisoners were taken there only once a
day by guards accompanied by an Alsatian dog. They had only 45 seconds in which
to relieve themselves, knowing that the dog would be set on them if they took
longer. Since they were taken to the lavatory only once a day under the
conditions described above, the applicants had to relieve themselves in their
cells (see Annex, Mr Ivantoc, § 95, Mr Lesco, § 115, Mrs Lesco, § 33, and
Mrs Ivantoc, § 40).
They
were cut off from the outside world. Their families were not permitted to
contact them or send them parcels. They were not able to send or receive mail
and had no access to lawyers.
200. On
3. Detention
in the remand centre of
201. The
circumstances of the applicants’ detention, as described in their written
depositions and witness evidence, and in the corroborating evidence given by
other witnesses (see Annex, Mr Urîtu, §§ 56 and 60-61, Mrs Ivantoc, § 41,
and Mrs Lesco, §§ 30-31), are summarised below.
202. The
first applicant remained in a cell at
203. The
second applicant was transferred from the Fourteenth Army’s garrison
headquarters to
204. The
third applicant remained for one month at the Fourteenth Army’s garrison
headquarters. He was then confined in a psychiatric hospital, where he remained
for nearly a month. On his return from hospital he was taken back to the
Fourteenth Army’s garrison headquarters and immediately transferred to
205. The
fourth applicant was detained until the beginning of the trial at
206. In
the remand centre at
207. The
cells had no natural light. During the first few weeks they were not permitted
to receive visits from their families or lawyers. Later permission was granted
on a discretionary basis for visits by their families and they began to receive
parcels, albeit at irregular intervals. They were often unable to eat the food
sent by their families because it had become spoiled during the searches
carried out for security reasons. They were not permitted to receive or send
mail, and were unable to speak to their lawyers.
208. During
this period the applicants were only rarely able to see a doctor, and when they
had been subjected to ill-treatment the doctor’s visit took place long
afterwards.
Hallucinogenic
drugs administered to Mr Ivantoc gave him chronic migraines. During this period
he was not treated for his headaches and his wife was not given permission to
send him medicines.
209. Mr
Ilascu was able to see his lawyer for the first time in September 1992,
several months after his arrest.
210. On
a date which has not been specified the applicants were transferred to Tiraspol
Prison with a view to their trial. While detained pending trial they were
subjected to various forms of inhuman and degrading treatment: they were
savagely beaten, Alsatian dogs were set on them, they were held in solitary
confinement and fed false information about the political situation and their
families’ health as bait to induce them to accept a promise of their release if
they signed confessions; lastly, they were threatened with execution.
211. Mr
Ivantoc and Mr Petrov-Popa were treated with psychotropic substances and as a
result Mr Ivantoc experienced mental disorders.
4. The
applicants’ trial and conviction
212. The
applicants were taken before the “Supreme Court of the Moldavian Republic of
Transdniestria”, which sat first in the functions room of the Kirov State
company and later in the concert hall of the Tiraspol cultural centre. During
the trial, which began on
213. The
applicants were tried by a three-judge bench composed as follows: Mrs Ivanova,
a former judge of the Supreme Court of Moldova, presiding; Mr Myazin, aged
28 at the time of the trial, who had worked for one year at the Moldovan Procurator
General’s Office before being appointed to the “Supreme Court of the MRT”, and
Mr Zenin.
214. The
judgment records that Commandant Mikhail Bergman, an ROG officer, appeared as a
witness. He told the court that the applicants had not been ill-treated by his
subordinates while they were detained on the premises of the Fourteenth Army
and that they had not made any complaints.
215. The
court gave judgment on
216. It
found the first applicant guilty of a number of offences defined in the
Criminal Code of the Moldovan Soviet Socialist Republic, including incitement
to commit an offence against national security (Article 67), organisation of
activities with the aim of committing extremely dangerous offences against the
State (Article 69), murdering a representative of the State with the aim of
spreading terror (Article 63), premeditated murder (Article 88), unlawfully
requisitioning means of transport (Article 182), deliberate destruction of
another’s property (Article 127) and illegal or unauthorised use of ammunition
or explosive substances (Article 227). The court sentenced him to death and
ordered the confiscation of his property.
217. The
court found the second applicant guilty of murdering a representative of the
State with the aim of spreading terror (Article 63), deliberate destruction of
another’s property (Article 127) and unauthorised use of ammunition or
explosive substances (Article 227 § 2) ; it sentenced him
to 12 years’ imprisonment in a hard labour camp and confiscation of his
property.
218. The
third applicant was found guilty of murdering a representative of the State
with the aim of spreading terror (Article 63), unauthorised use and theft of
ammunition or explosive substances (Articles 227 et 227-1 § 2), unlawfully
requisitioning horse-drawn transport (Article 182 § 3), deliberate destruction
of another’s property (Article 127) and assault (Article 96 § 2). He was
sentenced to 15 years’ imprisonment in a hard labour camp and confiscation
of his property.
219. The
fourth applicant was found guilty of murdering a representative of the State
with the aim of spreading terror (Article 63), assault (Article 96 § 2),
illegal use of horse-drawn transport (Article 182 § 3), deliberate destruction
of another’s property (Article 127), and unauthorised use and theft of
ammunition or explosive substances (Articles 227 and 227-1 § 2). He was
sentenced to 15 years’ imprisonment and confiscation of his property.
B. Events subsequent to the applicants’
conviction; Mr Ilascu’s release
220. On
221. On
28 December 1993 the Deputy Attorney General of Moldova ordered a criminal
investigation in respect of the “judges”, “prosecutors” and other persons
involved in the prosecution and conviction of the applicants in Transdniestria,
accusing them under Articles 190 and 192 of the Criminal Code of the Republic
of Moldova of unlawful arrest.
222. On
3 February 1994 the Supreme Court of the Republic of Moldova examined of its
own motion the judgment of 9 December 1993 of the “Supreme Court of the MRT”,
quashed it on the ground that the court which had rendered it was
unconstitutional and ordered the file to be referred to the Moldovan public
prosecutor for a new investigation in accordance with Article 93 of the Code of
Criminal Procedure. It appears from the written depositions, the information supplied
by the Moldovan Government and the evidence given by the witnesses heard by the
Court in Chisinau in March 2003 that the investigation ordered in the judgment
of 3 February 1994 came to nothing (see Annex, Mr Postovan, § 184, and
Mr Rusu, § 302).
223. In
addition, the Supreme Court of the Republic of Moldova set aside the warrant
for the applicants’ detention pending trial, ordered their release and asked
the public prosecutor to look into the possibility of prosecuting the judges of
the “so-called” Supreme Court of Transdniestria for deliberately rendering an
illegal decision, an offence punishable under Articles 190 to 192 of the
Criminal Code.
224. The
authorities of the “MRT” did not respond to the judgment of
225. The
Moldovan authorities had opened an investigation into the deaths of
Mr Gusar and Mr Ostapenko in April and May 1992 respectively, but the
public prosecution service suspended this on 6 June 1994, under Article 172 § 3
of the Moldovan Code of Criminal Procedure, in the absence of any cooperation
from the Transdniestrian judicial and police authorities. The investigation was
reopened on
226. By
a decree of
227. On
3 October 1995 the Moldovan Parliament asked the Moldovan Government to give
priority to the problem of the applicants’ detention as political prisoners and
keep it regularly informed of developments in the situation and remedial action
undertaken, and requested the Ministry of Foreign Affairs to seek firm support
from the countries where Moldova had diplomatic missions with a view to
securing the release of the applicants (“the Ilascu group”).
228. The
first applicant, although imprisoned, was elected a member of the Moldovan
Parliament on
229. On
16 August 2000 the public prosecutor declared void the order of
28 December 1993 against the “RMT” “judges” and “prosecutors” (see
paragraph 221 above) on the ground that there could only be unlawful arrest
within the meaning of Articles 190 and 192 of the Criminal Code when the
relevant measure was taken by judges or prosecutors appointed in accordance
with the legislation of the Republic of Moldova, which was not the position in
the present case. He also stated that in his view it was not appropriate to
begin an investigation in respect of false imprisonment or usurpation of the
powers or title corresponding to an official office, offences defined in
Articles 116 and 207 of the Criminal Code respectively, on the grounds that
prosecution was time-barred and that the suspected offenders were refusing to
assist the authorities with their enquiries.
230. On
the same day the public prosecutor ordered a criminal investigation in respect
of the governor of Hlinaia Prison on suspicion of false imprisonment and
usurpation of the powers or title corresponding to an official office, as
defined in Articles 116 and 207 of the Criminal Code. It appears from the
information supplied by the Moldovan Government and the statements of the
witnesses heard by the Court at Chisinau in March 2003 that this criminal
investigation came to nothing (see Annex, Mr Rusu, § 302, and Mr Sturza, §
314).
231. On
232. On
233. In
2001, at their request, Mr Ivantoc and Mr Lesco were likewise granted Romanian
nationality.
234. On
C. The applicants’ detention after
conviction
235. The
first applicant was detained in Tiraspol no. 2 Prison until his conviction, on
236. Mr
Lesco was transferred after his trial to Tiraspol no. 2 Prison, where he is
still detained.
237. Mr
Ivantoc was transferred after conviction to Hlinaia Prison, where he probably
remained for only a few weeks. Because of his illness he was first admitted to
hospital and then transferred to Tiraspol no. 2 Prison, where he still is.
238.
Mr Petrov-Popa was transferred shortly before the beginning of his trial to
Tiraspol no. 2 Prison. At some time after Mr Ilascu’s release in May 2001
Mr Petrov-Popa was transferred to Hlinaia Prison, where he stayed until 4
June 2003, on which date he was transferred to Tiraspol no. 3 Prison “in order
to facilitate his contacts with his lawyer”, according to the prison service.
239. From the first few months after the applicants’ arrest the
Moldovan Government granted financial assistance to their families. In
addition, the authorities found accommodation for those of the applicants’
families who had been obliged to leave Transdniestria and occasionally gave
them help, firstly to visit the applicants, by placing transport at their
disposal, and secondly to improve the applicants’ conditions of detention, by
sending doctors and supplying them with newspapers (see Annex, Mr Snegur, §
240, Mr Mosanu, § 248, and Mr Sangheli, § 267).
1. The
conditions of detention
240. The
applicants were detained, except during a few very short periods, alone, each
in his own cell, except for Mr Lesco, who was held in solitary confinement only
during the first few years.
Mr
Ilascu was always held in solitary confinement. He was not allowed
correspondence, but nevertheless managed to send a few letters out of prison.
241. In
Hlinaia Prison Mr Ilascu was detained in the wing for prisoners condemned to
death. His conditions of detention were harsher than those of the other
applicants. Inside his cell a metal cage of the same dimensions as the cell had
been fitted. Inside the cage was the bed and table, also made of metal.
Mr
Ilascu was not permitted to speak to the other prisoners or the warders. He was
therefore taken alone for his daily walk, which took place in the evening,
indoors.
Mr
Ilascu’s food was 100 grams of rye bread three times a day and a glass of tea
without sugar twice a day. In the evening he also received a concoction called
“balanda” whose main ingredient is kibbled maize.
242. The
applicants’ cells had no natural light: the only light – from an electric bulb
in the corridor – entered each cell through an opening cut out of the door.
243. The
applicants could only rarely take showers and had to go several months without
washing.
244. None
of the cells occupied by Mr Ilascu during his detention was heated, even in
winter.
245. Both
in Hlinaia and in
246. The
applicants were able to receive parcels and visits from their families,
although the relevant authorisation was not systematically given by the prison
governors.
At
times authorisation to receive visits or parcels was refused on the orders of
Igor Smirnov or Vladimir Antiufeyev/Chevtsov.
247. As
parcels were searched, any food in them sometimes became unfit for consumption.
To protest about the insufficient quantity of food served to them in prison,
the authorities’ occasional refusal to distribute to them the food brought by
their families and the fact that this food was being spoiled in the checking
process, the applicants went on several hunger strikes.
248. In
1999 Mr Ilascu was allowed visits by Mrs Josette Durrieu of the Parliamentary
Assembly of the Council of Europe and by Mr Vasile Sturza, the chairman of the
commission for negotiations with the Transdniestrians.
249. In
a letter sent in March 1999 to the Moldovan Parliament about the governmental
crisis facing
In
1999, following his vote for the Sturza Government and during the nine months
that Government lasted, Mr Ilascu was not allowed any visits from his family or
any parcels. The other applicants, particularly Mr Ivantoc, suffered
similar restrictions.
250. In
a letter to the Court dated 14 May 1999 Mr Ivantoc wrote that since Mr Ilascu’s
letter to the Moldovan Parliament the applicants’ conditions of detention, and
those of Mr Ilascu in particular, had deteriorated.
251. In
a letter of
252. In
a written statement of 29 July 1999 Mr Ivantoc, who was on the 77th
day of his hunger strike, accused the leaders in Chisinau of doing nothing to
protect human rights in Moldova and of “having a good time” with the separatist
leaders of Transdniestria. He also complained of the Tiraspol Prison authorities’
refusal to allow himself and Mr Ilascu access to a doctor and said that Mr
Ilascu, who had been held in solitary confinement for a lengthy period, was
being ill-treated. All the furniture had been taken out of his cell, his
clothes had been taken away from him except for a vest and he was repeatedly
beaten by members of the “special forces”, who kept suggesting that he should
kill himself.
253. In
a letter to the Court of
254. On
Mr
Ivantoc and Mr Lesco began to receive only bread for food. Mr Petrov-Popa
was transferred to Hlinaia Prison where, in conditions of total isolation, he
was told that he would not be permitted any visits for six months.
255. With
the exception of Mr Ilascu, the applicants were permitted correspondence in
Russian; letters in Romanian were forbidden. Their mail was censored. They
could not as a general rule receive newspapers in Romanian.
256. Mr
Ivantoc was refused a visit from his wife on
257. At
the witness hearings before the delegates of the Court in
258. The
Court has established the conditions under which the applicants’ medical examinations
were conducted on the basis of the witness evidence and other documents in its
possession, including the registers of medical consultations kept in the places
of the applicants’ detention.
259. In
general, the Court notes that, during their detention the applicants’ health
deteriorated.
They
were able to see, at their request, the prison doctor, who in most cases
restricted his examination to palpation and auscultation.
260. Mr
Ilascu, although suffering from acute arthritis, pancreatitis and a dental
abcess, was refused permission to see a doctor. His eyesight also deteriorated.
261. In
1995 Mr Lesco was nevertheless taken to hospital in
262. With
few exceptions, the applicants’ illnesses were not treated. The only medicines
they were given were the medicines sent by their families. The prison
“authorities” cited security grounds as the reason for not allowing the
applicants to receive the pharmaceutical information notes accompanying these
medicines.
263. After
negotiations with the Moldovan authorities, and above all after the
intervention of President Snegur, the Transdniestrian prison authorities
allowed specialists from Chisinau to examine the applicants. Thus, on several occasions
between 1995 and 1999, the applicants were examined by a medical commission
from
On
one occasion Mr Ilascu was able to have an electrocardiogram; Mr Ivantoc
was operated on for liver disease; Mr Petrov-Popa had an injection for his
tuberculosis and was prescribed treatment.
The
examinations took place in the presence of prison doctors and warders. The
medicines prescribed by the Moldovan doctors, as recorded in the prison medical
registers, were not supplied, the only medicines received by the applicants
being those brought by their families.
On
two occasions Mr Ilascu was allowed to be examined by International Red Cross
doctors.
264.
Mr Petrov-Popa, who was suffering from tuberculosis, was treated for
approximately six months, until March 1999. However, most of the medicines were
provided by his family.
265. None
of the applicants was able to obtain dietetically appropriate meals, although
these had been prescribed by doctors, in Mr Ilascu’s case for his disorder
of the digestive tract, in Mr Ivantoc’s case for his liver disease, in Mr
Lesco’s case for the consequences of his pancreatitis and in Mr Petrov-Popa’s
case for his tuberculosis.
Mr
Lesco, Mr Ivantoc and Mr Petrov-Popa said they suffered from pancreatitis,
liver disease and tuberculosis respectively and were not receiving the
appropriate treatment.
266. Mr
Petrov-Popa now occupies in Hlinaia Prison the same cell Mr Ilascu was in
before his release, although there is a special wing there for prisoners with
tuberculosis. Since the entry into force in 2002 of the new Transdniestrian
Code of Criminal Procedure, Mr Petrov-Popa’s conditions of detention in Hlinaia
have improved, since he can receive three extra parcels and three extra visits
per year. The improvement was ordered by the governor of Hlinaia Prison in the
light of the applicant’s good conduct.
2. Ill-treatment
267. During
the first few months of his detention in Hlinaia Mr Ilascu was ill-treated
several times.
On
the slightest pretext Mr Ilascu was removed to a disciplinary cell.
268. After
his transfer to Tiraspol no. 2 Prison Mr Ilascu’s situation improved slightly
in that he was not punished so frequently as at
Hlinaia and was ill-treated only after certain events.
For
example, after the appearance in the press of an article about the applicants
prison warders entered the cells of Mr Ilascu and Mr Ivantoc and confiscated or
destroyed all the objects they found there. They beat the applicants severely
and placed them in disciplinary cells for 24 hours.
269. The
cells of Mr Ilascu and Mr Ivantoc were smashed up after Mr Ilascu had
voted for the Sturza Government, in 1999, and after the lodging of their
application to the Court. The objects destroyed included personal effects such
as photographs of the applicants’ children and icons. They were also savagely
beaten.
After
lodging his application with the Court Mr Ilascu was beaten by soldiers who
kicked him and hit him with rifle butts. He then had a pistol placed in his
mouth and was threatened with death if he ever tried to send letters out of the
prison again. On that occasion he lost a tooth.
270. In
the above-mentioned letter of
271. Following
these events, as appears from a letter of
272. Mr
Ivantoc’s cell in Tiraspol Prison was smashed up on other occasions, in
November 2002 and on or about
D. Steps taken up to May 2001 to secure the
applicants’ release
273. The
negotiations between the
274. In
the context of the creation by the Transdniestrian side of a commission to
examine the possibility of pardoning all persons convicted and detained in
Transdniestria as a result of judgments delivered by the Transdniestrian courts
(see Annex, Mr Sturza, §§ 309 and 311), the Moldovan authorities obtained a
promise of the applicants’ release. In that context, the Moldovan Deputy
Attorney General, Mr Vasile Sturza, went to
Mr
Sturza went one last time to
275. In
a letter of
276. On
277. From
the beginning of the negotiations with the Transdniestrians the applicants’
situation was regularly raised by the Moldovan authorities. In particular,
discussions on this point took place with representatives of the “prosecution
service of the MRT”, the “Supreme Court of the MRT” and the “Minister of
Justice of the MRT”, and with Igor Smirnov.
278. The
applicants submitted to the Court a note verbale dated 19 April 2001
to the Moldovan embassy in Moscow in which the Ministry of Foreign Affairs of
the Russian Federation drew the Moldovan Government’s attention to the fact
that the memorial they had filed with the European Court of Human Rights in
October 2000 gave a subjective assessment of Russia’s role in the case of the
“Ilascu group” and in no way reflected “ the friendly character of relations
between the Republic of Moldova and the Russian Federation”. The note
continued:
“Examination
of the memorial by the Grand Chamber of the
In
that context, the Russian side, relying on the agreement reached by the heads
of the diplomatic services of the two countries with regard to the need to
withdraw the memorial concerned, urges the Government of Moldova to take all
the necessary steps to ensure the withdrawal of this document before 30 April
and to inform the European Court and Russia’s representative to that organ of
the fact officially.”
E. Mr Ilascu’s release on
279. Mr
Ilascu said that at about 5.30 a.m. on 5 May 2001, Vladimir Chevtsov, also
known as Antiufeyev, the Transdniestrian “Minister of Security”, entered his
cell and told him to get dressed quickly because he was to be presented to the
“President of the MRT”. The applicant left all his personal effects in the cell
and was placed in a car attached by handcuffs to two soldiers. Vladimir
Chevtsov also got in the car. The applicant was driven to Chisinau and there,
about 100 metres away from the presidential palace, he was handed over to the
head of the Moldovan secret service, Mr Pasat. The applicant asserted that
Mr Chevtsov had read out in front of Mr P*sat his instrument of transfer,
worded as follows: “The prisoner Ilascu, who has been sentenced to death, is
transferred to the competent organs of the
Moldovan
special forces then took the applicant to the Ministry
of Security, where he was questioned briefly before being released.
280. On
281. In
a letter of
Decree
no. 263, signed on
The
Moldovan Government made no comment on the subject of Mr Ilascu’s alleged
transfer, but merely submitted to the Court Mr Smirnov’s decree concerning
the applicant. Nor did they comment on the decree’s authenticity. They added
nevertheless that they had heard rumours to the effect that before signing the
decree in question Mr Smirnov had commuted the death sentence imposed on Mr
Ilascu to one of life imprisonment.
Mr
Ilascu asserted that Mr Smirnov’s decree was a forgery created after his
release. He maintained that, in spite of his release, his conviction remained
valid and that if he returned to Transdniestria he would be liable to the death
sentence.
282. The
Court has only the allegations of Mr Ilascu, a copy of Mr Smirnov’s
“decree” of
F. Steps taken after May 2001 to secure the
other applicants’ release
283. After
Mr Ilascu’s release the representative of Mr Lesco submitted in a letter
received by the Court on
284. At
the hearing on
285. After
Mr Ilascu’s release meetings between him and the Moldovan authorities took
place to discuss the prospects for the release of the other applicants.
At
a press conference which he gave on
G. International reactions to the
applicants’ conviction and detention
286. In
a report of 20 February 1994 written at the request of the OSCE’s Office for
Democratic Institutions and Human Rights by Mr Andrzej Rzeplinski,
Professor of criminal law and human rights at the University of Warsaw, and
Mr Frederick Quinn, of the OSCE, following a fact-finding visit to
Transdniestria, the applicants’ trial before the “Supreme Court of the MRT” was
analysed from the point of view of respect for fundamental rights. The authors
noted serious infringements of the defendants’ rights which included the lack
of any contact with a lawyer during the first two months after their arrest,
very limited access thereafter, infringement of the right to be tried by an
impartial tribunal, in that the court had refused to examine the applicants’
allegations that their confessions had been wrung from them by inhuman
treatment, and infringement of the right enshrined in Article 14.5 of the
International Covenant on Civil and Political Rights, in that the applicants’
trial had been conducted according to an exceptional procedure which denied
them any right to an appeal.
Lastly,
the authors described the trial as “a political event from beginning to end”.
They concluded that some of the terrorism charges preferred against the
applicants on the basis of the Criminal Code of the Soviet era would be
considered merely free speech issues in modern democracies.
287. On
288. While
in Transdniestria on 18 and
289. In
November 2000, following its visit to
The
CPT pointed out that the situation in Transdniestrian penitentiary
establishments in 2000 left a great deal to be desired, especially at Hlinaia
Prison, where the conditions of detention were deplorable: poor ventilation,
insufficient natural light, inadequate sanitary facilities and overcrowding.
On
the situation of the applicants in particular, the CPT said that three members
of the Ilascu group had been detained for eight years under conditions of
solitary confinement which were having harmful psychological consequences for
at least one of them. The CPT went on to say that solitary confinement could,
in certain circumstances, amount to inhuman and degrading treatment and that in
any event solitary confinement for so many years was unjustifiable. The CPT
asked the Transdniestrian authorities to attenuate the conditions of detention
of the three members of the Ilascu group held in solitary confinement by
allowing them access to the newspapers of their choice and by ensuring that
they could receive visits from their families and lawyers.
The
doctors in the CPT delegation were able to examine three of the four
applicants, including Mr Ilascu. They recommended that he be given appropriate
medical treatment for his illness.
The
CPT reported accounts of beatings in May 1999, allegedly inflicted on members
of the Ilascu group imprisoned in
V. INTERNATIONAL LAW, DOMESTIC LAW AND OTHER RELEVANT
AGREEMENTS
290. The
relevant provisions of the Minsk Agreement of
“We,
the
On
the basis of the historical commonality of our peoples and the ties that have developed
between them, and bearing in mind the bilateral agreements concluded between
High Contracting Parties,
Desirous
of setting up lawfully constituted democratic States,
Intending
to develop our relations on the basis of mutual recognition of and respect for
State sovereignty, the inalienable right to self-determination, the principles
of equality and non-intervention in internal affairs, of abstention from the
use of force and from economic or other means of applying pressure and of
settling controversial issues through agreement, and other universally
recognised principles and norms of international law,
...
Confirming
our adherence to the purposes and principles of the Charter of the United
Nations, the Helsinki Final Act and the other documents of the Conference on
Security and Corporation in
Undertaking
to abide by the universally recognised international norms relating to human
and peoples’ rights,
We
have agreed as follows:
Article 1
The
High Contracting Parties hereby establish the Commonwealth of Independent
States.
...
Article 6
1. The
States members of the Commonwealth will cooperate in safeguarding international
peace and security and implementing effective measures for the reduction of
armaments and military expenditures...
2. The
Parties will respect each other’s efforts to achieve the status of a
nuclear-free zone and a neutral State.
3. The
States members of the Commonwealth will maintain, and retain under joint
command, a common military and strategic space, including joint control over
nuclear weapons, the procedure for implementing which will be regulated by a
special agreement.
4. They
also jointly guarantee the necessary conditions for the deployment and
functioning and the material and social security of the strategic armed
forces...
Article 12
The
High Contracting Parties undertake to discharge the international obligations
incumbent on them under treaties and agreements entered into by the former
291. On
“The
292. On
“The
Desiring
to bring about as rapidly as possible a final ceasefire and settlement of the
armed conflict in the Transdniestrian regions;
Endorsing
the principles enshrined in the Charter of the United Nations and those of the
Conference for Security and Cooperation in
Whereas
on 3 July 1992 the President of the Republic of Moldova and the President of
the Russian Federation reached agreement on principles,
Have
agreed upon what follows:
Article 1
1. The
parties to the conflict undertake, on signature of the present agreement, to
take all necessary steps to implement the ceasefire, and a cessation of any
other armed action against the other party.
2. As
soon as the ceasefire has taken effect the parties will withdraw their armies,
weapons and military equipment within seven days. Withdrawal of the two armies
will permit the establishment of a security zone between the parties to the
conflict. The exact boundaries of the security zone will be determined in a
special protocol agreed between the parties on implementation of the present
agreement.
Article 2
1. A
specially created commission, composed of representatives of the three parties
to the settlement of the conflict, will have responsibility for verifying
implementation of the measures provided for in Article 1 above and ensure that
a security regime is enforced within the security zone. To that end, the
commission will have recourse to the groups of military observers brought in
under previous agreements, including quadripartite agreements. The control
commission will complete its work within seven days of signature of the present
agreement.
2. Each
party will appoint its representatives to the commission. The control
commission will sit in Bender.
3. With
a view to implementing the measures mentioned above, the control commission
will take under its orders the military contingents of volunteers representing
the parties participating in the implementation of the present agreement. The
positions to be occupied by these contingents and their interventions to
maintain the ceasefire and ensure security in the conflict in the region will
be determined by the control commission, which must reach a consensus in this
regard. The size of the military contingents, their status and the conditions
for their intervention in and withdrawal from the security zone will be laid
down in a separate protocol.
4. In
the event of breaches of the provisions of the present agreement, the control
commission will carry out inquiries and take without delay the necessary steps
to re-establish peace and order, and appropriate measures to prevent future
breaches.
Article 3
As
the seat of the control commission, and in view of the seriousness of the
situation, Bender is hereby declared a region subject to a security regime,
enforcement of security being the task of the military contingents of the
parties to implementation of the present agreement. The control commission will
ensure the maintenance of public order in Bender, acting together with the
police.
Bender
will be administered by the organs of local self-government, where necessary
acting together with the control commission.
Article 4
The
All
questions relating to the Fourteenth Army’s status or the stages and timetable
for its withdrawal will be settled by negotiations between the
Article 5
1. The
parties to the conflict consider sanctions or blockades of any kind
unacceptable. Accordingly, all obstacles to the free movement of goods,
services and persons shall be removed, and all necessary measures will be taken
to put an end to the state of emergency in the territory of the
2. The
parties to the conflict will enter without delay into negotiations to solve
problems relating to the return of refugees to their homes, aid to the
population of the conflict-struck region and reconstruction of housing and
public buildings. The
3. The
parties to the conflict will take all necessary steps to ensure the free
movement of humanitarian aid intended for the conflict-struck region.
Article 6
A
common press centre will be created with the task of providing the control
commission with correct information about developments in the situation in the
region.
Article 7
The
parties consider that the measures provided for in the present agreement form a
very important part of the settlement of the conflict by political means.
Article 8
The
present agreement will enter into force on the day of its signature.
The
present agreement shall cease to have effect by a joint decision of the parties
or in the event of denunciation by one of the parties, which will entail
cessation of the activities of the control commission and the military
contingents under its orders.”
293. On
“...
2. Article 6, with the exception of paragraphs 3 and 4 ...
The
Parliament of the
294. The
relevant provisions of the Moldovan Constitution of
Article 11
“1. The Republic of
2. The Republic of
Article 111
“1. A form of autonomy under special conditions may
be granted to areas on the left bank of the
295. The
relevant provisions of the Moldovan Criminal Code provide:
Article 116
“False
imprisonment shall be punished by imprisonment for up to one year.
False
imprisonment which has endangered the life or health of the victim or caused
him or her physical suffering shall be punished by imprisonment for 1 to 5
years.”
Article 207
“Usurpation
of the powers or title corresponding to an official office, if perpetrated in
order to further the commission of an offence, shall be punished by a fine of
up to 30 times the minimum monthly salary or up to 2 years’ labour or up to 2
years’ imprisonment.”
296. On
“The
having regard to the new political relations established in
confirming that the
convinced that they must ground their relations on
principles of friendship, mutual understanding and cooperation;
proceeding from agreements the Parties have already reached
in the military sphere;
acting in accordance with the documents adopted at the
Conference for Security and Cooperation in
have agreed upon what follows: ...
Article 2
The
status of the military formations of the
The
stationing of military formations of the
Subject
to technical constraints and the time required to station troops elsewhere, the
Russian side will effect the withdrawal of the
above-mentioned military formations within three years from the entry into
force of the present Agreement.
The
practical steps taken with a view to withdrawal of the military formations of
the Russian Federation from Moldovan territory within the time stated will be
synchronised with the political settlement of the Transdniestrian conflict and
the establishment of a special status for the Transdniestrian region of the
Republic of Moldova.
The
stages and timetable for the final withdrawal of the military formations of the
Article 5
For
as long as Russian military formations remain in the territory of the
The
sale of any type of military technology, armaments and ammunition belonging to
the military formations of the
Article 6
Movements
and military investigations by the military formations of the
It
is the responsibility of military formations to ensure, both inside their bases
and during movements outside, that military objects and property are guarded in
the manner prescribed within the Russian Army.
Article 7
Movement
of military aircraft inside the airspace of the
Article 13
Accommodation
and barracks, service buildings, vehicle parks, firing ranges and fixed machine
tools, stores and the tools they contain, buildings and other premises left
unoccupied as a result of the withdrawal of the military formations of the
Russian Federation will be transferred for management to the organs of the
local public administrative authorities of the Republic of Moldova in the
quantity existing de facto and in the condition they are in.
The
manner of the transfer or sale of the immovable property of the military formations
of the
Article 17
With
a view to ensuring the withdrawal of the military formations of the
Article 23
The
present Agreement will enter into force on the day of the last notification by
the Parties concerning implementation of the necessary internal procedures, and
will remain in force until the total withdrawal of Russian military formations
from the territory of the
The
present Agreement will be registered with the United Nations Organisation in
accordance with Article 102 of the UN Charter.”
297. On
21 October 1994 an agreement was reached in Moscow between the Ministries of
Defence of the Republic of Moldova and the Russian Federation on flights by the
aviation of Russian military units temporarily located in the territory of the
Republic of Moldova; this provided for use of Tiraspol airport by transport
planes of the armed forces of the Russian Federation. The relevant parts of
that agreement provide:
Article 1
“
Movement
and joint flights at Tiraspol airport by the civil aviation of the region of
Transdniestria belonging to the Republic of Moldova and Russian aircraft will
take place in accordance with the ‘Provisional rules on the joint dispersed
aviation of the military formations of the Russian Federation and the civil
aviation of the region of Transdniestria of the Republic of Moldova’, and in
coordination with the State civil aviation authority of the Republic of
Moldova, the Ministry of Defence of the Republic of Moldova and the the
Ministry of Defence of the Russian Federation.
Other
aircraft may take off from
Article 3
The
postal aircraft belonging to the Russian units may take off from
Article 5
Requests
by the aviation of the armed forces of the Russian Federation to carry out
flying tuition, training flights and flyovers are to be presented before 3 p.m.
(local time) through the air traffic ordination bodies (control centres).
Confirmation
of such requests and the authorisations needed for use of the
Article 7
Monitoring
of the implementation of the present agreement will be carried out by the
representatives of the Ministries of Defence of the
Article 8
The
present agreement will enter into force on the date of its signature and will
remain valid until the definitive withdrawal of the military units of the
The
present agreement may be amended with the mutual consent of the Parties.”
298. The
instrument of ratification of the Convention deposited by the
“1. The Republic of
...”
299. On
“At
the close of negotiations on questions relating to military property linked to
the presence of the Russian forces in Transdniestria, agreement has been
reached on the following points:
all the property concerned is divided into three categories:
- the first category includes the standard-issue weapons of
the United Group of Russian forces, its ammunition and its property;
- the second includes weapons, ammunition and surplus movable
military property which must imperatively be returned to
- the third includes weapons, ammunition and military and
other equipment which can be sold (decommissioned) directly on the spot or
outside the places where they are stored.
Revenue
from the sale of property in the third category will be divided between the
parties in the following proportions:
Transdniestria:
50%, after deducting the expenses arising from the sale of military property in
the third category.
Conditions
for the use and transfer of property in the third category shall be laid down
by
2. The
parties have agreed to pay their debts to each other on
3.
4. In
agreement with Transdniestria, Russia will continue to destroy the unusable and
untransportable ammunition near to the village of Kolbasna with due regard for
safety requirements, including ecological safety.
5. To
ensure the rapid transfer of the immovable property, the representatives of the
6. It
it is again emphasised that the gradual withdrawal of Russian armed forces
stationed in Transdniestria and the removal of their property will be effected
transparently. Transparent implementation of the withdrawal measures can be
ensured on a bilateral basis in accordance with the agreements signed between
THE LAW
I. WHETHER
THE APPLICANTS COME WITHIN THE JURISDICTION OF THE
A. Arguments
submitted to the Court
1. The
Moldovan Government
300. The
Moldovan Government submitted that the applicants did not at the material time
and still do not come within the de facto jurisdiction of
Under
Article 1 of the Convention the High Contracting Parties had agreed to secure
to everyone within their jurisdiction the rights and freedoms set forth
therein. In international law a State’s territorial jurisdiction, which had to
be exclusive and total, was called territorial sovereignty. That sovereignty
enabled it to exercise in a circumscribed area its State functions,
made up of legislative, administrative and judicial acts. But a State not in
effective control of part of its territory could not really exercise
territorial jurisdiction and sovereignty. In such a case the concepts of
“jurisdiction” and “territory” were not interchangeable. For the Convention to
be applicable it had to be possible for the State to confer and secure the
rights set forth in the Convention. Accordingly, the question whether a person
came within the jurisdiction of a State was a question of fact; it was
necessary to determine whether, at the time of the conduct complained of, the
State authorities did or did not exercise effective control over the alleged
victims.
301. In
the present case, the areas on the left bank of the
The
Moldovan Government pointed out that
302. They
submitted that the situation arising from the fact that it was impossible for
them to exercise effective control over Transdniestrian territory was similar
to that described by the Court in its Cyprus v. Turkey judgment ([GC],
no. 25781/94, ECHR 2001-IV, § 78), in which it had held that the Cypriot
Government were unable to exercise effective control over the territory of the
“TRNC”, which the latter controlled de facto.
303. They
rejected any allegation of cooperation on their part with the Transdniestrian
authorities and asserted that certain measures had been taken in the context of
negotiations to calm the Transdniestrian conflict, some of these with the
approval and in the presence of OSCE mediators, and others in the interests of
the Moldovan population inside the territory controlled by the Transdniestrian
regime.
304. The
Moldovan Government considered that they had discharged their positive
obligations, both general, in terms of finding a solution to the conflict and
re-establishing their control over Transdniestrian territory, and specific, in terms
of securing the applicants’ Convention rights.
In
that connection they referred to the numerous attempts made to settle the
conflict, confirmed by the evidence of the witnesses heard in Chisinau, to the
declarations and interventions of Moldovan political leaders – including those
made during negotiations to settle the conflict – and other condemnations of
the illegality of the applicants’ detention and conviction, chief among which
was the Moldovan Supreme Court’s judgment of 3 February 1994, to the
judicial measures taken against the persons responsible for their detention and
conviction and to the economic and other measures taken to reaffirm Moldovan
sovereignty throughout Moldovan territory, including the Transdniestrian part.
However,
these measures had come to nothing, given that the “MRT” was an entity capable
of functioning autonomously in relation to
Consequently,
the Moldovan Government submitted that they had no other means at their
disposal to enforce respect for the applicants’ rights under the Convention
without at the same time endangering
2. The
Government of the
305. The
Russian Government merely observed that the Moldovan Government was the only
legitimate government of
3. The
applicants
306. The
applicants submitted that Moldova had to be held responsible for the violations
of the Convention they alleged to have been committed in Transdniestrian
territory in that, since Transdniestria was part of its national territory, and
notwithstanding its lack of effective control, the Moldovan Government were
under an obligation to take sufficient measures to ensure respect for the
rights guaranteed by the Convention throughout its territory. However, they had
not done so. The applicants contended that the positive steps taken by the
Moldovan authorities had been limited and insufficient, regard being had to the
political and economic means at their disposal.
Not
only had the Moldovan Government not discharged their positive obligations
under the Convention, they had even gone so far as to take measures amounting
to de facto recognition of the Tiraspol regime or at least tacit
acceptance of the situation such as the release of General Iakovlev (see paragraph
50 above), the transfer of Mr Ilascu to the Moldovan authorities on 5 May 2001
(see paragraph 279 above), the agreements of 16 May 2001 (see paragraph
174 above) and cooperation, particularly in customs and police matters (see
paragraphs 176 and 177 above).
The
applicants asserted that the speech in which President Voronin accused Mr
Ilascu, after his release, of being responsible for the detention of the other
applicants, had been an act capable of engaging
307. Lastly,
the applicants submitted that the Moldovan authorities should have entered into
long-term negotiations with the Russian authorities, the only ones capable of
controlling the Transdniestrian regime, with a view to securing their release.
4. The Romanian Government, third-party intervener
308. In
their third-party intervention the Romanian Government observed at the outset
that they did not wish to express a view on
309. They
considered that a State party to the Convention could not limit the scope of
the undertakings it had given when ratifying the Convention by pleading that it
did not have jurisdiction within the meaning of Article 1. Contracting States
had to secure the rights guaranteed by the Convention to the persons resident
in their territory and were required to take the steps which the positive
obligations established by the Court’s case-law made necessary.
Although
the existence of such positive obligations should not be interpreted in such a
way as to impose on the authorities an unbearable or excessive burden, States
were nevertheless required to display reasonable diligence.
The
Romanian Government submitted that in the present case the Moldovan authorities
had failed to prove that they had made every effort to secure their sovereignty
over Transdniestrian territory. In particular, they criticised the Moldovan
authorities for not taking any effective steps to enforce the Supreme Court of
Moldova’s judgment of 3 February1994 and authorising the customs services of
the “MRT” to use the stamps and seals of the Republic of Moldova so that goods
from the Transdniestrian region could be exported.
B. The Court’s assessment
1. General
principles
(a) The
concept of jurisdiction
310. Article
1 of the Convention provides:
“The
High Contracting Parties shall secure to everyone within their jurisdiction the
rights and freedoms defined in Section I of [the] Convention.”
311. It
follows from Article 1 that member States must answer for any infringement of
the rights and freedoms protected by the Convention committed against
individuals placed under their “jurisdiction”.
The
exercise of jurisdiction is a necessary condition for a
312. The
Court refers to its case-law to the effect that the concept of “jurisdiction”
for the purposes of Article 1 of the Convention must be considered to reflect
the term’s meaning in public international law (see Gentilhomme,
Schaff-Benhadji and Zerouki v. France, judgment of 14 May 2002, § 20; Bankovic
and Others v. Belgium and 16 other Contracting States (dec.),
no. 52207/99, §§ 59-61, ECHR 2001-XII; and Assanidze v. Georgia, ECHR
2004 -..., § 137).
From
the standpoint of public international law, the words “within their
jurisdiction” in Article 1 of the Convention must be understood to mean that a
State’s jurisdictional competence is primarily territorial (see the Bankovic
decision, cited above, § 59), but also that jurisdiction is presumed
to be exercised normally throughout the State’s territory.
This
presumption may be limited in exceptional circumstances, particularly where a
State is prevented from exercising its authority in part of its territory. That
may be as a result of military occupation by the armed forces of another State
which effectively controls the territory concerned (see Loizidou v. Turkey
(Preliminary Objections) judgment of 23 March 1995, Series A
no. 310, and Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001-IV, §§
76-80, as cited in the above-mentioned Bankovic decision, §§ 70-71), to
acts of war or rebellion, or to the acts of a foreign State supporting the
installation of a separatist State within the territory of the State concerned.
313. In
order to be able to conclude that such an exceptional situation exists, the
Court must examine on the one hand all the objective facts capable of limiting
the effective exercise of a State’s authority over its territory, and on the
other the State’s own conduct. The undertakings given by a Contracting State
under Article 1 of the Convention include, in addition to the duty to refrain
from interfering with enjoyment of the rights and freedoms guaranteed, positive
obligations to take appropriate steps to ensure respect for those rights and
freedoms within its territory (see, among other authorities, Z. v. the
United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V).
Those
obligations remain even where the exercise of the State’s authority is limited
in part of its territory, so that it has a duty to take all the appropriate
measures which it is still within its power to take.
314. Moreover,
the Court observes that, although in the Bankovic case it emphasised the
preponderance of the territorial principle in the application of the Convention
(decision cited above, § 80), it also acknowledged that the concept of
“jurisdiction” within the meaning of Article 1 of the Convention is not
necessarily restricted to the national territory of the High Contracting Parties
(see Loizidou v. Turkey (Merits), judgment of 18 December
1996, Reports of Judgments and Decisions 1996-VI, pp. 2234-2235,
§ 52).
The
Court has accepted that in exceptional circumstances the acts of Contracting
States performed outside their territory or which produce effects there may
amount to exercise by them of their jurisdiction within the meaning of Article
1 of the Convention.
According
to the relevant principles of international law, a State’s responsibility may
be engaged where, as a consequence of military action – whether lawful or
unlawful – it in practice exercises effective control of an area situated
outside its national territory. The obligation to secure, in such an area, the
rights and freedoms set out in the Convention derives from the fact of such
control, whether it be exercised directly, through its armed forces, or through
a subordinate local administration (ibid.).
315. It
is not necessary to determine whether a Contracting Party actually exercises
detailed control over the policies and actions of the authorities in the area
situated outside its national territory, since even overall control of the area
may engage the responsibility of the Contracting Party concerned (ibid.,
pp. 2235-2236, § 56).
316. Where
a Contracting State exercises overall control over an area outside its national
territory its responsibility is not confined to the acts of its soldiers or
officials in that area but also extends to acts of the local administration
which survives there by virtue of its military and other support (see Cyprus
v. Turkey [GC], cited above, § 77).
317. A
State’s responsibility may also be engaged on account of acts which have
sufficiently proximate repercussions on rights guaranteed by the Convention,
even if those repercussions occur outside its jurisdiction. Thus, with
reference to extradition to a non-Contracting State, the Court has held that a
Contracting State would be acting in a manner incompatible with the underlying
values of the Convention, “that common heritage of political traditions,
ideals, freedom and the rule of law” to which the Preamble refers, if it were
knowingly to hand over a fugitive to another State where there are substantial
grounds for believing that the person concerned faces a real risk of being subjected
to torture or to inhuman or degrading treatment or punishment (see Soering
v. the United Kingdom, judgment of 7 July 1989, Series A no.
161, p. 35, §§ 88-91).
318. In
addition, the acquiescence or connivance of the authorities of a Contracting State
in the acts of private individuals which violate the Convention rights of other
individuals within its jurisdiction may engage the State’s responsibility under
the Convention (see Cyprus v. Turkey, cited above, § 81). That is
particularly true in the case of recognition by the State in question of the
acts of self-proclaimed authorities which are not recognised by the
international community.
319. A
State may also be held responsible even where its agents are acting ultra
vires or contrary to instructions. Under the Convention a State’s
authorities are strictly liable for the conduct of their subordinates; they are
under a duty to impose their will and cannot shelter behind their inability to
ensure that it is respected (see Ireland v. the United Kingdom, judgment
of 18 January 1978, Series A no. 25, p. 64, § 159; see also Article 7 of
the International Law Commission’s Draft Articles on the responsibility of
States for internationally wrongful acts, p. 104, and the Cairo
case heard by the General Claims Commission, (1929) Reports of International
Arbitral Awards 5 (RIAA), p. 516).
(b) State
responsibility for a wrongful act
320. Another
recognised principle of international law is that of State responsibility for
the breach of an international obligation, as evidenced by the work of the
International Law Commission on the Draft Articles on the responsibility of
States for internationally wrongful acts (2001) (“the work of the ILC”).
321. A
wrongful act may be described as continuing if it extends over the entire
period during which the relevant conduct continues and remains at variance with
the international obligation (see the commentary on draft Article 14 § 2, p.
139 of the work of the ILC).
In
addition, the Court considers that, in the case of a series of wrongful acts or
omissions, the breach extends over the entire period starting with the first of
the acts and continuing for as long as the acts or omissions are repeated and
remain at variance with the international obligation concerned (see also draft
Article 15 § 2 of the work of the ILC).
2. Application
of the above principles
322. The
Court must therefore ascertain whether
323. The
Court notes in the first place that
324. The
Court observes that in its decision on admissibility it held that the
declaration made by
The
question which arises is therefore whether, despite the above-mentioned
finding, the factual situation to which
325. In
the present case the Court notes that, having been proclaimed sovereign by its
Parliament on 23 June 1990, and having become independent on 27 August 1991 and
been subsequently recognised as such by the international community, the
Republic of Moldova was immediately confronted with a secessionist movement in
the region of Transdniestria. That movement grew stronger in December 1991,
with the organisation of local elections, which were declared illegal by the
Moldovan authorities (see paragraph 47 above). At the end of 1991 a civil war
broke out between the forces of the
During
the armed conflict the Moldovan authorities made a series of appeals to the
international community, including one to the United Nations Security Council
on 23 June 1992 (see paragraph 83 above), asking the Security Council to
support them in their struggle for independence. Accusing the
326. On
On
327. Subsequently,
when it ratified the Convention on
328. The
ceasefire agreement of
329. The
Court notes that after this period
The
Court accordingly sees in the declaration attached to the instrument of
330. On
the basis of all the material in its possession the Court considers that the
Moldovan Government, the only legitimate government of the
Moreover,
that point is not disputed by any of the parties or by the Romanian Government.
331. However,
even in the absence of effective control over the Transdniestrian region,
Moldova still has a positive obligation under Article 1 of the Convention
to take the diplomatic, economic, judicial or other measures that it is in its
power to take and are in accordance with international law to secure to the
applicants the rights guaranteed by the Convention.
3. The
concept of positive obligations
332. In
determining the scope of a State’s positive obligations, regard must be had to
the fair balance that has to be struck between the general interest and the
interests of the individual, the diversity of situations obtaining in
333. The
Court considers that where a Contracting State is prevented from exercising its
authority over the whole of its territory by a constraining de facto
situation, such as obtains when a separatist regime is set up, whether or not
this is accompanied by military occupation by another State, it does not
thereby cease to have jurisdiction within the meaning of Article 1 of the
Convention over that part of its territory temporarily subject to a local
authority sustained by rebel forces or by another State.
Nevertheless
such a factual situation reduces the scope of that jurisdiction in that the
undertaking given by the State under Article 1 must be considered by the Court
only in the light of the
334. Although
it is not for the Court to indicate which measures the authorities should take
in order to comply with their obligations most effectively, it must verify that
the measures actually taken were appropriate and sufficient in the present
case. When faced with a partial or total failure to act, the Court’s task is to
determine to what extent a minimum effort was nevertheless possible and whether
it should have been made. Determining that question is especially necessary in
cases concerning an alleged infringement of absolute rights such as those
guaranteed by Articles 2 and 3 of the Convention.
335. Consequently,
the Court concludes that the applicants are within the jurisdiction of the
Republic of Moldova for the purposes of Article 1 of the Convention but that
its responsibility for the acts complained of, committed in the territory of
the “MRT”, over which it exercises no effective authority, is to be assessed in
the light of its positive obligations under the Convention.
4. Whether
336. The
Court must determine whether the Moldovan authorities discharged their positive
obligations to secure the rights guaranteed by the Convention, or whether, as
the applicants and the Romanian Government submitted,
the Moldovan Government did not take enough measures to secure those rights.
337. In
the present case, in view of the complexity of the factual situation, the Court
considers in the first place that the question whether Moldova discharged its
positive obligations is closely bound up both with relations between Moldova
and the Russian Federation and with relations between Transdniestria and the
Russian Federation. In addition, account has to be taken of the influence
338. The
Court observes that it does not have jurisdiction to consider whether events
prior to
339.
340. The
obligation to re-establish control over Transdniestria required
It
is not for the Court to indicate the most appropriate measures
341. In
the present case, from the onset of hostilities in 1991-92, the Moldovan
authorities never ceased complaining of the aggression they considered they had
suffered and rejected the “MRT”‘s declaration of independence.
In
the Court’s opinion, when confronted with a regime sustained militarily,
politically and economically by a power such as the Russian Federation (see
paragraphs 111 to 161 above), there was little Moldova could do to re-establish
its authority over Transdniestrian territory. That was evidenced by the outcome
of the military conflict, which showed that the Moldovan authorities did not
have the means to gain the upper hand in Transdniestrian territory against the
rebel forces supported by Fourteenth Army personnel.
342. The
Moldovan authorities continued after the end of the hostilities in July 1992 to
take steps to re-establish their control over Transdniestria. From 1993
onwards, for example, they began to bring criminal proceedings against certain
Transdniestrian officials accused of usurping titles corresponding to State
offices (see paragraphs 167 and 229 to 230 above).
343.
On
344. These
efforts continued after 1997, despite a reduction in the number of judicial
measures intended to assert Moldovan authority in Transdniestria. The prosecutions
of Transdniestrian officials were not followed up and were even discontinued in
2000, and a former dignitary of the Transdniestrian regime was permitted, after
his return to
On
the other hand the efforts of the Moldovan authorities were directed more
towards diplomatic activity. In March 1998
The
Court does not see in the reduction of the number of measures taken a
renunciation on Moldova’s part of attempts to exercise its jurisdiction in the
region, regard being had to the fact that several of the measures previously
tried by the Moldovan authorities had been blocked by “MRT” reprisals (see
paragraphs 181 to 184 above).
The
Court further notes that the Moldovan Government argued that their change of
negotiating strategy towards diplomatic approaches aimed at preparing
Transdniestria’s return within the Moldovan legal order had been a response to
demands expressed by the separatists during discussions on the settlement of
the situation in Transdniestria and the applicants’ release. They had
accordingly abandoned the measures they had previously adopted, particularly in
the legal sphere. The Court notes the witness evidence to that effect given by
Mr Sturza (see Annex, §§ 309-313) and Mr Sidorov (see Annex, § 446).
345. In
parallel with that change of strategy, relations were established between the
Moldovan authorities and the Transdniestrian separatists. Economic cooperation
agreements were concluded, relations were established between the Moldovan
Parliament and the “Parliament of the MRT”, for several years there has been
cooperation in police and security matters and there are forms of cooperation
in other fields such as air traffic control, telephone links and sport (see
paragraphs 114, 178 and 185 above).
The
Moldovan Government explained that these cooperation measures had been taken by
the Moldovan authorities out of a concern to improve the everyday lives of the
people of Transdniestria and allow them to lead as nearly normal lives as possible.
The Court, like the Moldovan Government, takes the view that, given their
nature and limited character, these acts cannot be regarded as support for the
Transdniestrian regime. On the contrary, they represent affirmation by
346. As
regards the applicants’ situation, the Court notes that before ratification of
the Convention in 1997 the Moldovan authorities took a number of judicial,
political and administrative measures. These included:
- The
Supreme Court’s judgment of
- the criminal proceedings brought on
- the amnesty declared by the President of Moldova on
- the sending of doctors from
- the financial assistance given to the applicants’ families
and the help they were given in arranging visits to the applicants (see
paragraph 239 above).
During
that period, as appears from the witness evidence, in discussions with the
Transdniestrian leaders the Moldovan authorities also systematically raised the
question of the applicants’ release and respect for their Convention rights
(see paragraphs 172 and 274 to 277 above). In particular, the Court notes the
efforts made by the judicial authorities; for example, the Deputy Minister of
Justice, Mr V. Sturza, made numerous visits to Transdniestria to negotiate
with the Transdniestrian authorities for the applicants’ release.
347. Even
after 1997 measures were taken by Moldova to secure the applicants’ rights:
doctors were sent to Transdniestria to examine them (the last examination by
doctors from Chisinau took place in 1999), their families continued to receive
financial assistance from the authorities and Mr Sturza, the former Minister of
Justice and chairman of the Commission for negotiations with Transdniestria,
continued to raise the question of the applicants’ release with the
Transdniestrian authorities. In that connection, the Court notes that,
according to the evidence of certain witnesses, Mr Ilascu’s release was
the result of lengthy negotiations with the “MRT” authorities. Moreover, it was
following those negotiations that Mr Sturza went to Transdniestria in April
2001 with the expectation of bringing the four applicants back to Chisinau (see
paragraph 274 above and Annex, Mr Sturza, §§ 310-312).
It
is true that the Moldovan authorities did not pursue certain measures taken
previously, particularly investigations in respect of persons involved in the
applicants’ conviction and detention. However, the Court considers that in the
absence of control over Transdniestrian territory by the Moldovan authorities
any judicial investigation in respect of persons living in Transdniestria or
linked to offences committed in Transdniestria would be ineffectual. That is
confirmed by the witness evidence on that point (see Annex, Mr Postovan, § 184,
Mr Catana, § 208, and Mr Rusu, § 302).
Lastly,
the Moldovan authorities have applied not only to the “MRT” regime but also to
other States and international organisations for their assistance in obtaining
the applicants’ release (see Annex, Mr Mosanu, § 249).
348. The
Court does not have any evidence that since Mr Ilascu’s release in May
2001 effective measures have been taken by the authorities to put an end to the
continuing infringements of their Convention rights complained of by the other
three applicants. At least, apart from Mr Sturza’s evidence to the effect that
the applicants’ situation continues to be raised regularly by the Moldovan
authorities in their dealings with the “MRT” regime, the Court has no other
information capable of justifying the conclusion that the Moldova Government have been diligent with regard to the applicants.
In
their negotiations with the separatists the Moldovan authorities have
restricted themselves to raising the question of the applicants’ situation
orally, without trying to reach an agreement guaranteeing respect for their
Convention rights (see Annex, Mr Sturza, §§ 310-313).
Similarly,
although the applicants have been deprived of their liberty for nearly twelve
years, no overall plan for the settlement of the Transdniestrian conflict
brought to the Court’s attention deals with their situation and the Moldovan
Government did not claim that such a document existed or that negotiations on
the subject were in progress.
349. Nor
have the Moldovan authorities been any more attentive to the applicants’ fate
in their bilateral relations with the
In
the Court’s opinion, the fact that at the hearing on 6 July 2001 the Moldovan
Government refrained from arguing that the Russian Federation was responsible
for the alleged violations on account of the presence of its army in
Transdniestria, so as not to hinder the process intended to “put an end to
... the applicants’ detention” (see paragraph 360 below), amounted to an
admission on their part of the influence the Russian authorities might have
over the Transdniestrian regime if they were to urge it to release the
applicants. Contrary to the position in the period 1992-94, when the Moldovan
authorities raised the question of the applicants’ release with the Russian
authorities, after 1994 interventions to that end also seem to have ceased.
In
any event, the Court has not been informed of any approach by the Moldovan
authorities to the Russian authorities after May 2001 aimed at obtaining the
remaining applicants’ release.
350. In
short, the Court notes that the negotiations for a settlement of the situation
in Transdniestria, in which the
351. Having
regard to all the material in its possession, the Court considers that, even
after Mr Ilascu’s release in May 2001, it was within the power of the Moldovan
Government to take measures to secure to the applicants their rights under the
Convention.
352. The
Court accordingly concludes that Moldova’s responsibility is capable of being
engaged under the Convention on account of its failure to discharge its
positive obligations with regard to the acts complained of which occurred after
May 2001.
In
order to determine whether
II. WHETHER THE APPLICANTS COME
WITHIN THE JURISDICTION OF THE
A. Arguments
submitted to the Court
1. The
Government of the
353. The
Russian Government submitted that the acts complained of did not come within
the “jurisdiction” of the
354. The
It
had not been possible to honour the undertaking given by the
355. The
Russian Government submitted that the stationing of Russian troops in
Transdniestria was not comparable with the presence of Turkish troops in the
northern part of
The
ROG troops did not act together with or on behalf of the “MRT” but had a
peacekeeping mission, the objective of its commander being to preserve peace
and stability in the region and guard the enormous quantity of weapons still
stockpiled there. The peacekeeping forces observed the neutrality required by
the agreement of
In
short, the Russian military presence in the territory of the
356. The
Russian Government categorically denied that they exercised, or had exercised
in the past, any control whatsoever over Transdniestrian territory and pointed
out that the “MRT” had set up its own power structures, including a parliament
and a judiciary.
The
Russian Federation did not exercise any economic control over the region of Transdniestria,
which conducted its own independent economic policy within the Republic of
Moldova, for example by exporting foodstuffs and alcohol, with its own labels,
but as products of the Republic of Moldova and following the rules applicable
to each field of activity. Consequently, unlike the situation in northern
357. The
The
Government rejected the applicants’ allegation that the
The
agreement of 20 March 1998 on questions relating to the property of the former
Fourteenth Army (see paragraph 299 above) and other agreements on economic
cooperation with the “MRT” were private-law contracts between two private
parties and were not governed by international law. It could not be concluded
on the strength of those agreements that the
Similarly,
no conclusion could be drawn from Articles 7 and 13 of the agreement of
21 October 1994 between Moldova and the Russian Federation (see paragraph
296 above), which provided for joint use of Tiraspol military airport by the
military aviation of the Russian Federation and the “civil aviation of the
Transdniestrian region of the ‘Republic of Moldova’”, and the transfer “to the
organs of the local public administrative authorities of the Republic of
Moldova” of premises vacated or machine tools left behind as a result of the
withdrawal of the Russian Federation’s military formations. According to the
Russian Government, the “Dniestrian Region” was regarded in that case as a
“business entity” carrying on its own activities inside a specific territory.
358. In
the light of the statements made by the witnesses in Moldova, in particular the
evidence of the former military prosecutor, Mr Timoshenko, the Russian
Government admitted that the applicants had been detained in the premises of
the Fourteenth Army but asserted that this detention had been in breach of the
ROG’s disclinary regulations and that it had been of very short duration, since
Mr Timoshenko had immediately put a stop to the illegal situation. Consequently,
in any event, a possible breach of legal provisions had been remedied and the
applicants could not consider themselves victims.
As
to the remaining allegations, the Russian Government asserted that there was no
causal link between the presence of Russian military forces in the region of
Transdniestria and the applicants’ situation.
2. The
Moldovan Government
359. In
their written observations of
360. At
the hearing on
361. In
their written observations of
In
addition, the Moldovan Government asserted that the responsibility of the
Russian Federation had to be engaged on account of the participation of
Fourteenth Army personnel in the arrest and interrogation of the applicants,
their detention on Fourteenth Army premises and their transfer into the charge
of the Transdniestrian separatists.
362. Consequently,
the Moldovan Government considered that, in general, under Article 1 of the
Convention, acts committed in the
363. The
Moldovan government asserted that, while they were not opposed to the transfer
to Transdniestria of some of the civilian equipment belonging to the ROG, they
had always categorically opposed the transfer to the region of any type of
armaments and military or dual-use technology (with both military and civilian
applications).
As
regards the meaning of the term “local public administrative authorities of the
Transdniestrian region of the Republic of Moldova” found in certain agreements
with the Russian Federation in which specific rights were conferred on those
authorities, the Moldovan Government said that it referred to administrative
bodies set up in accordance with the constitutional rules of the Republic of
Moldova and subordinate to the central authorities. They categorically rejected
the interpretation to the effect that the local authorities concerned in those
agreements were those subordinate to the
3. The
applicants
364. The
applicants submitted that the responsibility of the
365. In
the first place, the Russian authorities had supported the Transdniestrian
separatists both politically and by taking part in the armed conflict. In that
connection, the applicants referred to the factual evidence that had been
produced of the Russian Federation’s support (see paragraphs 111 to 136 above)
and the numerous appeals made in 1992 by the Moldovan authorities complaining
of the former Fourteenth Army’s aggression against Moldovan territory. They
also complained of public statements made by commanders of the former
Fourteenth Army and Russian leaders in the separatists’ favour and of
participation by those commanders in elections in Transdniestria, military
parades by the Transdniestrian forces and other public events.
366. The
applicants alleged that the
367. The
applicants submitted that the so-called organs of power of the “MRT” were in
fact puppets of the Russian Government.
368. Moreover,
they asserted that the “MRT” was recognised by the Russian Government. They
referred in that connection to the agreement on the property of the former
Fourteenth Army concluded on 20 March 1998 between the Russian Federation and
Transdniestria (see paragraph 299 above) and to the allegations that political
parties of the Russian Federation had branches in Tiraspol, that the Ministry
of Foreign Affairs of the Russian Federation had opened a consular office
without the agreement of the Moldovan authorities and that the Transdniestrian
leaders, including Mr Smirnov, Mr Maracuta and Mr Caraman, held Russian
passports.
369. Apart
from its de facto recognition of the “MRT”, the Russian Federation
supported the Tiraspol regime economically and financially, as evidenced by the
above-mentioned agreement of 20 March 1998, which granted the “MRT” part of the
income from the sale of the ROG’s equipment, a reduction by the Russian
authorities of Transdniestria’s debt to them, economic relations between the
Russian armaments manufacturer “Rosvoorujenye” and the Transdniestrian
authorities, and the opening of accounts by the Bank of Transdniestria with the
Russian central bank.
370. According
to the applicants, such acts, combined with the de facto control
exercised by the
They
relied on the Court’s case-law in the above-mentioned Loizidou v.
They
further relied on the case-law of the International Court of Justice, which had
pointed out in its advisory opinion on the South African presence in Namibia
that States were under an obligation to ensure that the acts of private
individuals did not affect the inhabitants of the territory in question. They
also referred to the Kling case, in which the General Claims Commission,
set up by the
4. The Romanian Government, third-party intervener
371. The
Romanian Government observed at the outset that the purpose of its intervention
was to supply clarifications of the facts and legal reasoning in support of the
case of the applicants who were its nationals.
372. While
accepting that the acts complained of had taken place, and were
continuing, in the “MRT”, a part of Moldovan territory under the de facto
authority of the separatist administration in
They
submitted that the former Fourteenth Army had contributed to the creation of
the separatist military forces. After the end of the conflict the personnel of
the former Fourteenth Army had remained inside Moldovan territory.
373. The
Romanian Government referred to the Convention institutions’ case-law to the
effect that a Contracting Party’s responsibility can also be engaged when, as
the result of military action, it exercises control in practice over an area
outside its national territory (Cyprus v. Turkey, application no.
8007/77, Commission decision of 10 July 1978, cited above; Loizidou v.
Turkey (preliminary objections), cited above; and Cyprus
v. Turkey, application no. 25781/94, Commission’s report of 4
June 1999).
They
submitted that the case-law concerned was wholly applicable to the facts of the
present case, firstly on account of the participation of the forces of the
former Fourteenth Army in the military conflict during which Moldova had tried
to re-establish its sovereign jurisdiction over the territory in question, and
secondly because of the stationing of those troops in the “MRT”. It was of
little consequence that the real number of Russian troops had been gradually
reduced in proportion to the local authorities’ progress in forming their own
armed forces, since the element of dissuasion represented by the former
Fourteenth Army’s continued presence in Moldovan territory remained.
374. Moreover,
the organs of the
375. The
Romanian Government argued that a State was responsible for the acts committed
by its organs, including abuses of authority, and referred on that point to
certain declarations made by the Russian authorities, including President
Yeltsin, and to the case of the Russian soldiers who had gone over to the
separatists. In addition, they submitted that a State should also be held
responsible for wrongful acts committed by private individuals where those acts
were the result of a shortcoming on the part of the State’s organs, whether in
the form of a failure to prevent them, lack of control or negligence.
B. The Court’s assessment
1. General
principles
376. The
Court considers that the general principles summarised above (see paragraphs
310 to 321) are relevant to examination of the question whether the applicants
come within the jurisdiction of the
2. Application
of the above-mentioned principles
377. In
the present case the Court’s task is to determine whether, regard being had to
the principles set forth above (see, in particular, paragraphs 314 to
316), the
378. The
Court notes at the outset that the
(a) Before
ratification of the Convention by the
379. The
Court notes that on
It
also entered into negotiations with the
380. The
Court observes that during the Moldovan conflict in 1991-92 forces of the
former Fourteenth Army (which owed allegiance to the
The
Court notes that from December 1991 onwards the Moldovan authorities
systematically complained, to international bodies among others, of what they
called “the acts of aggression” of the former Fourteenth Army against the
Regard
being had to the principle of States’ responsibility for abuses of authority, it is of no consequence that, as the Russian
Government submitted, the former Fourteenth Army did not participate as such in
the military operations between the Moldovan forces and the Transdniestrian
insurgents.
381. Throughout
the clashes between the Moldovan authorities and the Transdniestrian
separatists the leaders of the
382. In
the light of all these circumstances the Court considers that the
The
Court next notes that even after the ceasefire agreement of
21 July 1992 the Russian Federation continued to provide military,
political and economic support to the separatist regime (see paragraphs 111 to
161 above), thus enabling it to survive by strengthening itself and by
acquiring a certain amount of autonomy vis-à-vis Moldova.
383. The
Court further notes that in the context of the events mentioned above the
applicants were arrested in June 1992 with the participation of soldiers of the
Fourteenth Army (subsequently the ROG). The first three applicants were then
detained on Fourteenth Army premises and guarded by Fourteenth Army troops.
During their detention these three applicants were interrogated and subjected
to treatment which could be considered contrary to Article 3 of the Convention.
They were then handed over into the charge of the Transdniestrian police.
Similarly,
after his arrest by soldiers of the Fourteenth Army, the fourth applicant was
handed over to the Transdniestrian separatist police, then detained,
interrogated and subjected on police premises to treatment which could be
considered contrary to Article 3 of the Convention.
384. The
Court considers that on account of the above events the applicants came within
the jurisdiction of the
This
is because the events which gave rise to the responsibility of the Russian
Federation must be considered to include not only the acts in which the agents
of that State participated, like the applicants’ arrest and detention, but also
their transfer into the hands of the Transdniestrian police and regime, and the
subsequent ill-treatment inflicted on them by those police, since in acting in
that way the agents of the Russian Federation were fully aware that they were
handing them over to an illegal and unconstitutional regime.
In
addition, regard being had to the acts the applicants were accused of, the
agents of the Russian Government knew, or at least should have known, the fate
which awaited them.
385. In
the Court’s opinion, all of the acts committed by Russian soldiers with regard
to the applicants, including their transfer into the charge of the separatist
regime, in the context of the Russian authorities’ collaboration with that
illegal regime, are capable of engaging responsibility for the acts of that
regime.
It
remains to be determined whether that responsibility remained engaged and
whether it was still engaged at the time of the ratification of the Convention
by the
(b) After
ratification of the Convention by the
386. With
regard to the period after ratification of the Convention, on
387. The
Russian army is still stationed in Moldovan territory in breach of the
undertakings to withdraw them completely given by the
Consequently,
in view of the weight of this arsenal (see paragraph 131 above), the ROG’s
military importance in the region and its dissuasive influence persist.
388. The
Court further observes that by virtue of the agreements between the Russian
Federation, on the one hand, and the Moldovan and Transdniestrian authorities
respectively, on the other (see paragraphs 112 to 120 and 123 above), the “MRT”
authorities were supposed to acquire the infrastructure and arsenal of the ROG
at the time of its total withdrawal. It should be noted in that connection that
the interpretation given by the Russian Government of the term “local
administrative authorities” of the region of Transdniestria, to be found, among
other places, in the agreement of 21 October 1994 (see paragraph 116 above) is
different from that put forward by the Moldovan Government, a fact which
enabled the “MRT” regime to acquire that infrastructure.
389. As
regards military relations, the Court notes that the Moldovan delegation to the
Joint Control Commission constantly raised allegations of collusion between the
ROG personnel and the Transdniestrian authorities regarding transfers of
weapons to the latter. It notes that the ROG personnel denied those allegations
in the presence of the delegates, declaring that some equipment could have
found its way into the separatists’ hands as a result of thefts.
Taking
into account the accusations made against the ROG and the dangerous nature of
its weapons stocks, the Court finds it hard to understand why the ROG troops do
not have effective legal resources to prevent such transfers or thefts, as is
apparent from their witness evidence to the delegates.
390. The
Court attaches particular importance to the financial support enjoyed by the
“MRT” by virtue of the following agreements it has concluded with the
-
the agreement signed on 20 March 1998 between the Russian Federation and the
representative of the “MRT”, which provided for the division between the “MRT”
and the Russian Federation of part of the income from the sale of the ROG’s
equipment;
-
the agreement of 15 June 2001, which concerned joint work with a view to using
armaments, military technology and ammunition;
-
the
-
the supply of Russian gas to Transdniestria on more
advantageous financial terms than those given to the rest of
The
Court further notes the information supplied by the applicants and not denied
by the Russian Government to the effect that companies and institutions of the
Russian Federation normally controlled by the State, or whose policy is subject
to State authorisation, operating particularly in the military field, have been
able to enter into commercial relations with similar firms in the “MRT” (see
paragraphs 150 and 151 above).
391. The
Court next notes that, both before and after
392. All
of the above proves that the “MRT”, set up in 1991-1992 with the support of the
Russian Federation, vested with organs of power and its own administration,
remains under the effective authority, or at the very least under the decisive
influence, of the Russian Federation, and in any event that it survives by
virtue of the military, economic, financial and political support given to it
by the Russian Federation.
393. That
being so, the Court considers that there is a continuous and uninterrupted link
of responsibility on the part of the Russian Federation for the applicants’
fate, as the Russian Federation’s policy of support for the regime and
collaboration with it continued beyond 5 May 1998, and after that date the
Russian Federation made no attempt to put an end to the applicants’ situation
brought about by its agents, and did not act to prevent the violations
allegedly committed after 5 May 1998.
Regard
being had to the foregoing, it is of little
consequence that since
394. In
conclusion, the applicants therefore come within the “jurisdiction” of the
III. THE COURT’S JURISDICTION RATIONE
TEMPORIS
395. In
their observations of
396. The
Russian Government asserted that the acts complained of by the applicants had
occurred before the Convention’s entry into force with regard to Russia, on 5
May 1998, and that they therefore fell outside the Court’s jurisdiction ratione
temporis.
397. The
applicants submitted that the violations complained of were continuous in
nature and that the Court accordingly had jurisdiction to examine them.
398. The
Romanian Government presented no argument on the point.
399. The
Court observes that the Convention entered into force with regard to
A. The complaint
under Article 6 of the Convention
400. The
Court notes that the applicants asserted that they had not had a fair trial
before the “Supreme Court of the MRT”.
However,
the proceedings before that court ended with the judgment of
Consequently,
the Court does not have jurisdiction ratione temporis to examine the
complaint under Article 6.
B. The complaints
under Articles 3, 5 and 8 of the Convention
401. The
applicants submitted that their detention was not lawful, since the judgment
pursuant to which they had been detained, and in three cases still were
detained, had not been given by a competent court. They alleged that while in
402. The
Court notes that the alleged violations concern events which began with the
applicants’ incarceration in 1992, and are still going on.
403. The
Court therefore has jurisdiction ratione temporis to examine the
complaints made in so far as they concern events subsequent to
C. The complaint
under Article 1 of Protocol No. 1 to the Convention
404. The
applicants complained that they had been deprived of their possessions in
breach of Article 1 of Protocol No. 1, since the judgment pursuant to which
they had been thus deprived had been unlawful. They considered themselves
victims of a continuing violation.
405. The
Court notes that the applicants have not provided any details about enforcement
of the confiscation decision which might enable it to determine whether the
alleged violation is a continuing one. However, in view of its conclusion below
(see paragraph 474), it does not consider it necessary to determine whether it
has jurisdiction ratione temporis to entertain this complaint.
D. Mr Ilascu’s complaint under Article 2 of
the Convention
406. Relying
on Article 2, Mr Ilascu complained of the death penalty imposed on him,
asserting that the sentence had not been set aside by the authorities which had
imposed it and that it could be enforced at any time if he went to
Transdniestria.
407. The
Court observes that on
408. Consequently,
the Court has jurisdiction ratione temporis to examine this complaint.
IV. ALLEGED VIOLATION OF ARTICLE 2
OF THE CONVENTION
409. Mr
Ilascu complained that he had been condemned to death by an unlawful court and
alleged that he ran the risk of being executed at any time. The first paragraph
of Article 2 of the Convention provides:
“Everyone’s
right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.”
A. Arguments submitted to the Court
410. The
applicant submitted that the pardon decree signed by the “President of the MRT”
on
He
asserted in that connection that on
411. The
Russian Government made no observations on the merits of the complaint.
412. The
Moldovan Government did not deny that there had been a violation of the Article
relied on by the applicant.
413. The
Romanian Government submitted that since the Supreme Court of Moldova’s
judgment of
B. The Court’s assessment
414. The
Court notes that Moldova ratified Protocol No. 6 to the Convention, abolishing
the death penalty in peacetime, on 1 October 1997 and that it signed Protocol
No. 13 to the Convention concerning the abolition of the death penalty in all
circumstances on 3 May 2002. The
415. The
death penalty imposed on Mr Ilascu on
It
was only in November 2001 that the Moldovan Government submitted to the Court a
copy of the decree of
416. Regard
being had to the evidence adduced before it, the Court is not in a position to
establish either the exact circumstances of Mr Ilascu’s release or whether
the death penalty imposed on him has been commuted to life imprisonment (see
paragraph 282 above).
Since
Mr Ilascu has been released and is now living with his family in Romania, a
country whose nationality he possesses and where he holds high office as a
member of the Senate (see paragraph 20 above), the Court considers that the
risk of enforcement of the death penalty imposed on him on 9 December 1993
is more hypothetical than real.
417. On
the other hand, it is not disputed that after ratification of the Convention by
the two respondent States, Mr Ilascu must have suffered as a consequence both
of the death sentence imposed on him and of his conditions of detention while
under the threat of execution of that sentence.
418. That
being so, the Court considers that the facts complained of by Mr Ilascu do
not call for a separate examination under Article 2 of the Convention, but
would be more appropriately examined under Article 3 instead.
V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
419. The
applicants complained of their conditions of detention and of the treatment
that had been inflicted on them while they were detained. In addition, Mr
Ilascu complained of his conditions of detention while under the threat of
execution. They relied on Article 3 of the Convention, which provides:
“No
one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”
A. Arguments submitted to the Court
420. The
applicants asserted that the particularly severe treatment to which they had
been subjected during their detention had belittled and degraded them and had
had disastrous effects on their physical and mental condition. In Mr Ilascu’s
case, account also had to be taken of the uncertainty he had had to live with regarding
the possibility that the death penalty imposed on him would be enforced.
421. The
Russian Government argued that the applicants’ allegations had nothing to do
with the
422. The
Moldovan Government submitted in their observations of
423. In
their third-party intervention the Romanian Government submitted that the
treatment undergone by the applicants during their detention could be
classified as “torture” within the meaning of Article 3, in view of their
deliberateness, their particularly vile nature and the fact that they had
caused the applicants severe and cruel suffering.
B. The Court’s assessment
1. General
principles
424. The
Court reiterates that Article 3 of the Convention enshrines one of the most
fundamental values of democratic societies. Even in the most difficult
circumstances, such as the fight against terrorism and organised crime, the
Convention prohibits in absolute terms torture and inhuman or degrading
treatment or punishment. Unlike most of the substantive clauses of the
Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for
exceptions and no derogation from it is permissible under Article 15 § 2
of the Convention even in the event of a public emergency threatening the life
of the nation (see, among other authorities, Selmouni v. France
[GC], no. 25803/94, § 95, ECHR 1999-V; and Labita v. Italy [GC], no.
26772/95, § 119, ECHR 2000-IV).
425. The
Court has considered treatment to be “inhuman” because, inter alia,
it was premeditated, was applied for hours at a stretch and caused either
actual bodily injury or intense physical or mental suffering. It has deemed
treatment to be “degrading” because it was such as to arouse in the victims
feelings of fear, anguish and inferiority capable of humiliating and debasing
them (see, for example, Kudla v. Poland [GC], no. 30210/96, § 92,
ECHR 2000-XI).
426. In
order to determine whether a particular form of ill-treatment should be
qualified as torture, the Court must have regard to the distinction embodied in
Article 3 between this notion and that of inhuman or degrading treatment. As it
has previously found, it was the intention that the Convention should, by means
of this distinction, attach a special stigma to deliberate inhuman treatment
causing very serious and cruel suffering; the same distinction is drawn in
Article 1 of the United Nations Convention (see the previously cited Selmouni
judgment, § 96):
“For
the purposes of this Convention, the term ‘torture’ means any act by which
severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coercing him
or a third person, or for any reason based on discrimination of any kind, when
such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an
official capacity. ...”
427. The
Court has also held that the term “severe” is, like the “minimum severity”
required for the application of Article 3, in the nature of things, relative
(ibid., § 100): it too depends on all the circumstances of the case,
such as the duration of treatment, its physical or mental effects and, in some
cases, the sex, age and state of health of the victim (see, among other
authorities, Kalashnikov v. Russia, no. 47095/99, § 95, ECHR
2002-VI ; and the previously cited Labita judgment, § 120).
Furthermore, in considering whether treatment is “degrading” within the meaning
of Article 3, the Court will have regard to whether its object was to
humiliate and debase the person concerned and whether, as far as the
consequences are concerned, it adversely affected his or her personality in a
manner incompatible with Article 3. Even the absence of such a purpose cannot
conclusively rule out a finding of a violation of Article 3 (Valasinas
v. Lithuania, no. 44558/98, § 101, ECHR 2001-VIII).
428. The
Court has consistently stressed that the suffering and humiliation involved
must in any event go beyond the inevitable element of suffering or humiliation
connected with a given form of legitimate treatment or punishment. Measures
depriving a person of his liberty are usually accompanied by such suffering and
humiliation. Article 3 requires the State to ensure that every prisoner is
detained in conditions which are compatible with respect for his human dignity,
that the manner and method of the execution of the measure do not subject him
to distress or hardship of an intensity exceeding the unavoidable level of
suffering inherent in detention and that, given the practical demands of
imprisonment, his health and well-being are adequately secured (see Kudla v.
Poland, cited above, §§ 92-94).
429. The
Court has previously held that, regard being had to developments in the
criminal policy of the member States of the Council of Europe and the commonly
accepted standards in that sphere, the death penalty might raise an issue under
Article 3 of the Convention. Where a death sentence is passed the personal
circumstances of the condemned person, the proportionality to the gravity of
the crime committed and the conditions of detention pending execution of the
sentence are examples of factors capable of bringing the treatment or punishment
received by the condemned person within the proscription under Article 3 (see Soering
v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p.
41, § 104; and Poltoratskiy v. Ukraine, no. 38812/97, § 133).
430. For
any prisoner condemned to death, some element of delay between imposition and
execution of the sentence and the experience of severe stress in conditions
necessary for strict incarceration are inevitable (see Soering v. the United
Kingdom, cited above, § 111). Nevertheless, in certain circumstances, the
imposition of such a sentence might entail treatment going beyond the threshold
set by Article 3, when for example a long period of time must be spent on death
row in extreme conditions, with the ever present and mounting anguish of awaiting
execution of the death penalty (see Soering v. the United Kingdom, cited
above, p. 44, § 111).
431. Furthermore,
the anxiety and suffering engendered by such a sentence can only be aggravated
by the arbitrary nature of the proceedings which led to it, so that,
considering that a human life is at stake, the sentence thus becomes a
violation of the Convention.
432. Prohibition
of contacts with other prisoners for security, disciplinary or protective
reasons does not in itself amount to inhuman treatment or punishment. On the
other hand, complete sensory isolation, coupled with total social isolation can
destroy the personality and constitutes a form of inhuman treatment which
cannot be justified by the requirements of security or any other reason (see,
among other authorities, Messina v. Italy (dec.), no. 25498/94, ECHR
1999-V).
433. Moreover,
when assessing conditions of detention, account has to be taken of the
cumulative effects of these conditions and of specific allegations made by the
applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II).
2. Application
of the above principles in the present case
(a) Mr
Ilascu
434. The
applicant was sentenced to death on
The
Court reiterates that the Convention is not binding on Contracting States save
in respect of events that have occurred since its entry into force, the
relevant dates being
435. During
the very long period he spent on death row the applicant lived in the constant
shadow of death, in fear of execution. Unable to exercise any remedy, he lived
for many years, including the time after the Convention’s entry into force, in
conditions of detention apt to remind him of the prospect of his sentence being
enforced (see paragraphs 196 to 210 and 240 to 253 above).
In
particular, the Court notes that after sending a letter to the Moldovan
Parliament in March 1999 Mr Ilascu was savagely beaten by the warders at
Tiraspol Prison, who threatened to kill him (see paragraphs 249, 250, 269 and
270 above). After that incident he was denied food for two days and light for
three (see paragraph 271 above).
As
to the mock executions which took place before the Convention’s entry into
force (see paragraph 198 above), there is no doubt that the effect of such barbaric
acts was to increase the anxiety felt by the applicant throughout his detention
about the prospect of his execution.
436. The
anguish and suffering he felt were aggravated by the fact that the sentence had
no legal basis or legitimacy for Convention purposes. The “Supreme Court of the
MRT” which passed sentence on Mr Ilascu was set up by an entity which is
illegal under international law and has not been recognised by the
international community. That “court” belongs to a system which can hardly be
said to function on a constitutional and legal basis reflecting a judicial
tradition compatible with the Convention. That is evidenced by the patently
arbitrary nature of the circumstances in which the applicants were tried and
convicted, as they described them in an account which has not been disputed by
the other parties (see paragraphs 212 to 216 above), and as described and
analysed by the institutions of the OSCE (see paragraph 286 above).
437. The
judgment of the Supreme Court of Moldova setting aside the applicant’s
conviction (see paragraph 222 above) confirmed the unlawful and arbitrary
nature of the judgment of
438. As
regards the applicant’s conditions of detention while on death row, the Court
notes that Mr Ilascu was detained for eight years, from 1993 until his release
in May 2001, in very strict isolation: he had no contact with other prisoners,
no news from the outside - since he was not permitted to send or receive mail -
and no right to contact his lawyer or receive regular visits from his family.
His cell was unheated, even in severe winter conditions, and had no natural
light source or ventilation. The evidence shows that Mr Ilascu was also
deprived of food as a punishment and that in any event, given the restrictions
on receiving parcels, even the food he received from outside was often unfit
for consumption. The applicant could take showers only very rarely, often
having to wait several months between one and the next. On this subject the
Court refers to the conclusions in the report produced by the CPT following its
visit to Transdniestria in 2000 (see paragraph 289 above), in which it
described isolation for so many years as indefensible.
The
applicant’s conditions of detention had deleterious effects on his health,
which deteriorated in the course of the many years he spent in prison. Thus, he
did not receive proper care, having been deprived of regular medical
examinations and treatment (see paragraphs 258 to 260, 262, 263, and 265 above)
and dietetically appropriate meals. In addition, owing to the restrictions on
receiving parcels, he could not be sent medicines and food to improve his
health.
439. The
Court notes with concern the existence of rules granting a discretionary power
in relation to correspondence and prison visits, exercisable by both prison
warders and other authorities, and emphasises that such rules are arbitrary and
incompatible with the appropriate and effective safeguards against abuses which
any prison system in a democratic society must put in place. Moreover, in the
present case, such rules made the applicant’s conditions of detention even
harsher.
440. The
Court concludes that the death sentence imposed on the applicant coupled with
the conditions he was living in and the treatment he suffered during his
detention after ratification, account being taken of the state he was in after
spending several years in those conditions before ratification, were
particularly serious and cruel and must accordingly be considered acts of
torture within the meaning of Article 3 of the Convention.
There
has therefore been a failure to observe the requirements of Article 3.
441. As
Mr Ilascu was detained at the time when the Convention came into force with
regard to the
Mr
Ilascu was released in May 2001 and it is only from that date on that
442. In
conclusion, the violation of Article 3 of the Convention with regard to Mr
Ilascu is imputable only to the
(b) The
other three applicants: conditions of detention and treatment during detention
(i) Mr
Ivantoc
443. The
Court notes at the outset that at no time in the proceedings before it have the respondent Governments denied that the alleged
incidents took place.
It
further considers that the descriptions given by Mr Ivantoc are sufficiently
precise and are corroborated by identical assertions repeatedly made by him to
his wife and by the evidence given by other witnesses to the Court’s delegates.
In
the light of all the information at its disposal, the Court considers that it
can take it as established that during the applicant’s detention, including
that part of it which followed the Convention’s entry into force with regard to
the respondent States, the applicant received a large number of blows and other
ill-treatment, and that at times he was denied food and all forms of medical
assistance in spite of his state of health, which had been weakened by these
conditions of detention. In particular, the Court draws attention to the
persecution and ill-treatment to which Mr Ivantoc was subjected in May 1999
after lodging his application to the Court (see paragraphs 251 and 252 above),
and in 2001, November 2002 and February 2003 (see paragraphs 254, 256 and 269
to 272 above).
444. In
addition, Mr Ivantoc has been detained since his conviction in 1993 in solitary
confinement, without contact with other prisoners and without access to
newspapers. He is not permitted to see a lawyer, his only contacts with the
outside world taking the form of visits and parcels from his wife, subject to
authorisation by the prison authorities when they see fit to give it.
All
these restrictions, which have no legal basis and are left to the authorities’
discretion, are incompatible with a prison regime in a democratic society. They
have played their part in increasing the applicant’s distress and mental
suffering.
445. The
applicant is detained in an unheated, badly ventilated cell without natural
light, and has not received the treatment required by his state of health,
despite a few medical examinations authorised by the prison authorities. On
that subject, the Court refers to the conclusions in the report produced by the
CPT following its visit to Transdniestria in 2000 (see paragraph 289 above).
446. In
the Court’s opinion, such treatment was apt to engender pain or suffering, both
physical and mental, which could only be exacerbated by the applicant’s total
isolation and were calculated to arouse in him feelings of fear, anxiety and
vulnerability likely to humiliate and debase him and break his resistance and
will.
In
the Court’s opinion, this treatment was inflicted on Mr Ivantoc intentionally
by persons belonging to the administrative authorities of the “MRT” with the
aim of punishing him for the acts he had allegedly committed.
447. That
being so, the Court considers that, taken as a whole and regard being had to
its seriousness, its repetitive nature and its purpose, the treatment inflicted
on Mr Ivantoc has caused “severe” pain and suffering and was particularly
serious and cruel. All these acts must be considered acts of torture within the
meaning of Article 3 of the Convention.
448. As
Mr Ivantoc was detained at the time when the Convention came into force with
regard to the Russian Federation, the latter is responsible, for the reasons
set out above (see paragraph 393) on account of his conditions of detention,
the treatment inflicted on him and the suffering caused to him in prison.
Regard
being had to the conclusions the Court reached on the question of Moldova’s
responsibility for the acts complained of on account of its failure to
discharge its positive obligations after May 2001 (see paragraph 352 above),
Moldova is responsible for a violation of Article 3 of the Convention with
regard to Mr Ivantoc from that date onwards.
449. In
conclusion, as regards Mr Ivantoc, there has been a violation of Article 3 of
the Convention by the
(ii) Mr
Lesco and Mr Petrov-Popa
450. The
Court notes at the outset that at no time in the proceedings before it have the respondent Governments denied that the alleged
incidents took place.
It
further considers that the descriptions given by the witnesses heard, including the applicants and their wives, are
sufficiently precise and are corroborated by other evidence in its possession.
451. Consequently,
the Court considers that it can take it as established that during their
detention, including that part of it which followed the Convention’s entry into
force with regard to the two respondent States, Mr Lesco and Mr
Petrov-Popa experienced extremely harsh conditions of detention:
- visits and parcels from their families were subject to the
discretionary authorisation of the prison administration;
- at
times they were denied food, or given food unfit for consumption, and most of
the time they were denied all forms of appropriate medical assistance despite
their state of health, which had been weakened by these conditions of detention;
and
- they were not given the dietetically appropriate meals
prescribed by their doctors (see paragraph 265 above).
The
Court emphasises also that these conditions have deteriorated since 2001 (see
paragraph 254 above).
In
addition, Mr Petrov-Popa has been held in solitary confinement since 1993,
having no contact with other prisoners or access to newspapers in his own
language (see paragraphs 240, 254 and 255 above).
Both
Mr Petrov-Popa and Mr Lesco were denied access to a lawyer until June 2003 (see
paragraph 257 above).
452. In
the Court’s opinion, such treatment is apt to engender pain or suffering, both
physical and mental. Taken as a whole and regard being had to its seriousness,
the treatment inflicted on Mr Lesco and Mr Petrov-Popa can be qualified as
inhuman and degrading treatment within the meaning of Article 3 of the
Convention.
453. As
Mr Lesco and Mr Petrov-Popa were detained at the time when the Convention came
into force with regard to the Russian Federation, the latter is responsible,
for the reasons set out above (see paragraph 393) on account of their
conditions of detention, the treatment inflicted on them and the suffering
caused to them in prison.
Regard
being had to the conclusions the Court reached on the question of Moldova’s
responsibility for the acts complained of on account of its failure to
discharge its positive obligations after May 2001 (see paragraph 352 above),
Moldova is responsible for the violation of Article 3 of the Convention with
regard to Mr Lesco and Mr Petrov-Popa from May 2001 onwards.
454. In
conclusion, as regards Mr Lesco and Mr Petrov-Popa, there has been a violation
of Article 3 of the Convention by the
VI. ALLEGED VIOLATION OF ARTICLE 5
OF THE CONVENTION
455. The
applicants alleged that their detention had not been lawful and that the court
which had convicted them was not a competent court. They relied on Article 5 §
1 of the Convention, the relevant part of which provides:
“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:
(a) the lawful detention of a person after conviction by a
competent court;
...”
456. The
Russian Government submitted that the applicants’ allegations had nothing to do
with the
457. In
their observations of
458. In
their third-party intervention the Romanian Government submitted that the
applicants’ detention had no legal basis, since they had been sentenced by an
unlawfully constituted court. Although certain acts of the separatist
authorities, such as acts relating to the registration of births, deaths and
marriages, had to be recognised so as not to worsen the situation of the
inhabitants (see the ICJ’s advisory opinion of 21 June 1971 on the
legal consequences for States of the continued presence of South Africa in
Namibia notwithstanding Security Council Resolution 276), that should not apply
to all the acts of authorities not recognised by the international community,
otherwise those authorities would be legitimised.
In
the present case, the applicants’ conviction had been the result of a flagrant
denial of justice, since they had not had a fair trial before the “Supreme
Court of the MRT”.
459. The
Court does not have jurisdiction ratione temporis to rule on the
question whether the criminal proceedings in the course of which the applicants
were convicted by the “Supreme Court of the MRT” breached Article 6 of the
Convention. In so far as the applicants’ detention continued after the dates on
which the Convention was ratified by the two respondent States, the Court
nevertheless has jurisdiction to determine whether, thereafter, each of the
applicants was detained “lawfully”, “in accordance with a procedure prescribed
by law” and “after conviction by a competent court” within the meaning of
Article 5 § 1 (a) of the Convention.
460. As
is well established in the Court’s case-law, the word “tribunal” used in
the French text of Article 5 (court) and other Articles of the Convention, in
particular Article 6 (tribunal), refers in the first place to a body
“established by law” satisfying a number of conditions which include
independence, particularly vis-à-vis the executive, impartiality, the duration
of its members’ terms of office and guarantees of a judicial procedure (see De
Wilde, Ooms and Versyp v. Belgium, judgment of 28 May 1970,
Series A no. 12, p. 41, § 78).
In
certain circumstances a court belonging to the judicial system of an entity not
recognised under international law may be regarded as a tribunal “established
by law” provided that it forms part of a judicial system operating on a
“constitutional and legal basis” reflecting a judicial tradition compatible to
the Convention, in order to enable individuals to enjoy the Convention
guarantees (see, mutatis mutandis, Cyprus v. Turkey, cited
above, §§ 231 and 236-237).
461. The
requirement of lawfulness laid down by Article 5 § 1 (a) (“lawful detention”
ordered “in accordance with a procedure prescribed by law”) is not satisfied
merely by compliance with the relevant domestic law; domestic law must itself
be in conformity with the Convention, including the general principles
expressed or implied in it, particularly the principle of the rule of law,
which is expressly mentioned in the Preamble to the Convention. The notion
underlying the expression “in accordance with a procedure prescribed by law” is
one of fair and proper procedure, namely that any measure depriving a person of
his liberty should issue from and be executed by an appropriate authority and
should not be arbitrary (see, among other authorities, Winterwerp v. the
Netherlands, judgment of 24 October 1979, Series A no. 33, § 45).
In
addition, as the purpose of Article 5 is to protect the individual from
arbitrariness (see, among other authorities, Stafford v. the United Kingdom
[GC], no. 46295/99, § 63, ECHR 2002-IV), a “conviction” cannot be the
result of a flagrant denial of justice (see, mutatis mutandis, Drozd
and Janousek v. France and Spain, judgment of 26 June 1992, Series A
no. 240, § 110).
The
Court also refers to its conclusions under Article 3 of the Convention
regarding the nature of the proceedings in the “Supreme Court of the MRT” (see
paragraph 436 above).
462. The
Court accordingly finds that none of the applicants was convicted by a “court”,
and that a sentence of imprisonment passed by a judicial body such as the
“Supreme Court of the MRT” at the close of proceedings like those conducted in
the present case cannot be regarded as “lawful detention” ordered “in
accordance with a procedure prescribed by law”.
463. That
being so, the deprivation of liberty suffered by the applicants during the
period covered by the Court’s jurisdiction ratione temporis in respect
of the respondent States (namely, as regards Mr Ilascu, from 12 September
1997 to 5 May 2001 for Moldova, and from 5 May 1998 to 5 May 2001 for
Russia and, as regards the other applicants, from the date of ratification by
each of the respondent States to the present date) cannot satisfy the
conditions laid down in paragraph 1 (a) of Article 5 of the Convention.
It
follows that there was a violation of Article 5 § 1 of the Convention until May
2001 as regards Mr Ilascu, and that there has been and continues to be a
violation of that provision as regards the three applicants still detained.
464. Having
regard to the fact that the applicants were detained at the time of the
Convention’s entry into force with regard to the Russian Federation, and taking
into account its findings above (see paragraph 393), the Court concludes that
the conduct constituting a violation of Article 5 is imputable to the Russian
Federation as regards all the applicants.
Taking
into account its conclusion above (see paragraph 352) that the responsibility
of the
VII. ALLEGED VIOLATION OF ARTICLE 8
OF THE CONVENTION
465. The
applicants complained that they could not correspond freely with their families
and with the Court. In particular, they asserted that they had not been able to
apply to the Court freely, and that in order to do so they had had to call on
the assistance of their wives. They further complained that they could not
receive visits from their families except with the prior agreement of the
“President of the MRT”. They relied on Article 8 of the Convention, the
relevant parts of which provide:
“1. Everyone has the right to respect for his
private and family life, ... and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, 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.”
466. The
Russian Government confined their observations to the assertion that the
applicants’ allegations had nothing to do with the
467. In
their observations of
468. The
Romanian Government submitted that the interference with the applicants’ right
to respect for their correspondence and family life was not in accordance with
the law within the meaning of Article 8 § 2, firstly because the Soviet law
applied in the “MRT” was not a valid law in Moldovan territory, and secondly
because the prior agreement of the “President of the MRT” could not be equated
with a law, for lack of any safeguard against arbitrariness.
469. The
Court considers that this complaint is limited to the fact that it was
impossible for the applicants to write freely to their families and the Court
from prison and to the difficulties they encountered in receiving visits from
their families. As to the complaint relating to the impossibility of applying
to the Court from prison, this falls more naturally under Article 34, which the
Court will examine separately.
470. However,
having taken these allegations into account in the context of Article 3 (see
paragraphs 438, 439, 444 and 451 above), the Court considers that it is not
necessary to examine them separately from the standpoint of Article 8.
VIII. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
471. The
applicants complained, under Article 1 of Protocol No. 1 to the Convention, of
the confiscation of their possessions following a trial which breached Article
6 of the Convention.
472. The
Russian Government submitted that the applicants’ allegations had nothing to do
with the
473. The
Moldovan and Romanian Governments did not express an opinion.
474. Even
on the supposition that it has jurisdiction ratione temporis to rule on
this complaint, the Court notes that its factual basis is insufficient.
As
the complaint has not been substantiated, the Court therefore considers that
there has been no violation of Article 1 of Protocol No. 1 to the Convention.
IX. ALLEGED BREACH OF ARTICLE 34 OF
THE CONVENTION
475. The
applicants complained of interference with their exercise of the right of
individual application to the Court and relied on Article 34 of the Convention,
which provides:
“The
Court may receive applications from any person, non-governmental organisation
or group of individuals claiming to be the victim of a violation by one of the
High Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to hinder in any
way the effective exercise of this right.”
476. The
applicants submitted in the first place that they had not been permitted to
apply to the Court from prison so that their wives had had to do that on their
behalf. They also alleged that they had been persecuted in prison because they
had tried to apply to the Court.
They
further submitted that the statement by the President of Moldova, Mr Voronin,
that Mr Ilascu’s refusal to withdraw his application had been the cause of the
remaining applicants’ continued detention (see paragraph 285 above), had been a
flagrant interference with their right of individual petition.
Lastly,
they submitted that the note from the Russian Ministry of Foreign Affairs (see
paragraph 278 above) had been a serious interference with their right of
individual petition.
477. The
Moldovan Government confirmed Mr Voronin’s observations, but asserted that
these had been prompted when Mr Ilascu remarked during a discussion with Mr
Voronin that he would be prepared to withdraw the part of his application
directed against Moldova provided that the Moldovan authorities proved through
their actions their desire to see the other three applicants released. The
Moldovan Government argued that in those circumstances the accusations against
Mr Voronin were intended to tarnish
478. The
Russian Government said that the applicants had obtained the above-mentioned
note fraudulently and that it could therefore not be relied on before the
Court.
479. The
Romanian Government submitted that the acts of intimidation directed against Mr
Ilascu to punish him for lodging the present application constituted
interference with the right of individual petition guaranteed by Article 34.
480. The
Court reiterates that it is of the utmost importance for the effective
operation of the system of individual petition instituted by Article 34 of the
Convention that applicants and potential applicants are able to communicate
freely with the Court without being subjected to any form of pressure from the
authorities to withdraw or modify their complaints (see Akdivar and Others
v. Turkey, judgment of 16 September 1996, Reports of Judgments
and Decisions 1996-IV, p. 1219, § 105; and Aksoy v. Turkey, judgment
of 18 December 1996, Reports 1996-VI, p. 2288, § 105).
The
expression “any form of pressure” must be taken to cover not only direct
coercion and flagrant acts of intimidation but also improper indirect acts or
contacts designed to dissuade or discourage applicants from pursuing a
Convention remedy (see Kurt v. Turkey, judgment of 25 May 1998, Reports
1998-III, p. 1192, § 160).
Moreover,
the question whether contacts between the authorities and an applicant
constitute unacceptable practices from the standpoint of Article 34 must
be determined in the light of the particular circumstances of the case. In that
connection, the Court must assess the vulnerability of the complainant and the
risk of his being influenced by the authorities (see Akdivar and Others,
p. 1219, § 105, and Kurt, pp. 1192-1193, § 160, both previously cited).
481. In
the present case, the applicants have asserted that they had not been able to
apply to the Court from their place of detention, that their application had in
fact been lodged by the only lawyer who was representing them at the beginning
of the proceedings, Mr Tanase, and that it had been signed by their wives.
The
Court has also had regard to the threats made against the applicants by the
Transdniestrian prison authorities and the deterioration in their conditions of
detention after their application was lodged. It takes the view that such acts
constitute an improper and unacceptable form of pressure which hindered their
exercise of the right of individual petition.
In
addition, the Court notes with concern the content of the diplomatic note of
Subsequently,
at the hearing on
The
Court considers that such conduct on the part of the Government of the Russian
Federation represented a negation of the common heritage of political
traditions, ideals, freedom and the rule of law mentioned in the Preamble to
the Convention and were capable of seriously hindering its examination of an
application lodged in exercise of the right of individual petition and thereby
interfering with the right guaranteed by Article 34 of the Convention itself.
There
has therefore been a breach by the Russian Federation of Article 34 of the
Convention.
482. The
Court further notes that after Mr Ilascu’s release he spoke to the Moldovan
authorities about the possibility of obtaining the release of the other
applicants, and that in that context Mr Voronin publicly accused Mr Ilascu
of being the cause of his comrades’ continued detention, through his refusal to
withdraw his application against Moldova and the Russian Federation.
In
the Court’s opinion, such remarks by the highest authority of a
Consequently,
Mr Voronin’s remarks amount to an interference by the
X. APPLICATION OF ARTICLE 41 OF THE CONVENTION
483. Article
41 of the Convention provides
“If
the Court finds that there has been a violation of the Convention or the
Protocols thereto, and if the internal law of the High Contracting Party
concerned allows only partial reparation to be made, the Court shall, if
necessary, afford just satisfaction to the injured party.”
A. Damage
484. The
applicants submitted their claims for just satisfaction in November 2001.
In
a letter received by the Court on 12 February 2004, Mr T*nase submitted the new
claims of his client, Mr Lesco, updated in order to take account of the period
since 2001.
Mr
Gribincea did likewise for the other applicants in a letter received by the
Court on
485. The
applicants contended that their conviction and detention had caused them to
lose their jobs. Similarly, on account of the persecution to which their
husbands had been subjected, Mrs Ilascu and Mrs Ivantoc had had to resign
from their jobs in
In
particular, the applicants claimed the following sums.
Mr
Ilascu claimed 1,861 euros (EUR) for loss of salary and other allowances on
account of his detention from June 1992 until
Mr
Ilascu, Mr Ivantoc and Mr Petrov-Popa argued that, as only the
Taking
into account the seriousness of the violations complained of, the circumstances
of the case, the attitude of the respondent Governments, the lasting effects on
their health and the trauma they had suffered, the applicants claimed the
following sums for non-pecuniary damage: Mr Ilascu, EUR 7,395,000; Mr
Ivantoc, EUR 7,842,000; Mr Petrov-Popa, EUR 7,441,000; and Mr Lesco, EUR
7,800,000.
With
regard to the sums claimed for non-pecuniary damage, Mr Ilascu, Mr Ivantoc and
Mr Petrov-Popa said that they would be satisfied if the Moldovan Government
paid each of them EUR 1,000 and the
In
short, taking all the heads of pecuniary and non-pecuniary damage together, the
applicants claimed the following sums: Mr Ilascu, EUR 7,396,861; Mr
Ivantoc, EUR 7,851,560; Mr Petrov-Popa, EUR 7,462,510; and Mr Lesco, EUR
7,830,000.
486. The
Moldovan Government said that they were not opposed to the claims made by the
applicants Ilascu, Ivantoc, and Petrov-Popa, in so far
as it appeared therefrom that they would have to pay EUR 1,000 to each of the
them. On the other hand, it found the sums claimed by Mr Lesco excessive and
unsubstantiated.
The
Russian Government said that they could not be held responsible for the alleged
violations. Moreover, they contended that the facts the applicants complained
of fell outside the Court’s jurisdiction ratione temporis.
In
any event, they considered the sums claimed excessive and unsubstantiated.
487. The
Court reiterates that, in the context of the execution of judgments in
accordance with Article 46 of the Convention, a judgment in which it finds a
breach imposes on the respondent State a legal obligation under that provision
to put an end to the breach and to make reparation for its consequences in such
a way as to restore as far as possible the situation existing before the
breach. If, on the other hand, national law does not allow – or allows only
partial – reparation to be made for the consequences of the breach, Article 41
empowers the Court to afford the injured party such satisfaction as appears to
it to be appropriate. It follows, inter alia, that a judgment in which
the Court finds a violation of the Convention or its Protocols imposes on the
respondent State a legal obligation not just to pay those concerned the sums
awarded by way of just satisfaction, but also to choose, subject to supervision
by the Committee of Ministers, the general and/or, if appropriate, individual
measures to be adopted in its domestic legal order to put an end to the
violation found by the Court and make all feasible reparation for its
consequences in such a way as to restore as far as possible the situation
existing before the breach (see Assanidze v. Georgia [GC], no. 71503/01,
§ 198, 8 April 2004; Maestri v. Italy [GC], no. 39748/98, § 47, 17
February 2004; Mentes and Others v. Turkey (Article 50), judgment
of 24 July 1998, Reports 1998-IV, p. 1695, § 24; and Scozzari and
Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249,
ECHR 2000-VIII).
488. The
Court reiterates that it has found violations of several Convention provisions
by the
It
has found that Mr Ilascu and Mr Ivantoc were subjected to treatment which it
qualified as torture within the meaning of Article 3 of the Convention, that
the other two applicants were subjected to inhuman and degrading treatment
contrary to Article 3, that all the applicants were detained arbitrarily
contrary to Article 5 and that Mr Ivantoc, Mr Lesco and Mr Petrov-Popa are
still detained in breach of Article 5.
The
Court has also found that Article 34 of the Convention was breached by both the
489. The
Court does not consider the alleged pecuniary damage to have been
substantiated, but it does not find it unreasonable to suppose that the
applicants suffered a loss of income and certainly incurred costs which were directly
due to the violations found. It also takes the view that as a result of the
violations found the applicants undeniably suffered non-pecuniary damage which
cannot be made good merely by the finding of a violation.
Consequently,
regard being had to the extreme seriousness of the violations of the Convention
of which the applicants were victims, and ruling on an equitable basis, as
required by Article 41 of the Convention, the Court awards them the following
sums, plus any amount that may be chargeable in tax:
(a) to each applicant, EUR 180,000 for pecuniary and
non-pecuniary damage arising from the violations of Articles 3 and 5 of the
Convention;
(b) to each applicant, EUR 10,000 for non-pecuniary damage
arising from the breach of Article 34 by the
490. The
Court further considers that any continuation of the unlawful and arbitrary
detention of the three applicants would necessarily entail a serious
prolongation of the violation of Article 5 found by the Court and a breach of
the respondent States’ obligation under Article 46 § 1 of the Convention to
abide by the Court’s judgment.
Regard
being had to the grounds on which they have been found by the Court to be in
violation of the Convention (see paragraphs 352 and 393 above), the respondent States must take every measure to put an
end to the arbitrary detention of the applicants still detained and to secure
their immediate release.
B. Costs and expenses
491. For
their lawyers’ fees Mr Ilascu claimed EUR 8,000 and Mr Ivantoc
and Mr Petrov-Popa EUR 8,500 each. They also asked for EUR 2,500 in
respect of various costs.
As
appears from the contract between Mr Lesco’s wife and his lawyer, Mr Lesco
claimed in addition EUR 200 per month for work by his counsel, making a total
of EUR 11,800. That sum represents his counsel’s work and expenses since June
1999, when the application was lodged, a period of 59 months, the main
items being drafting the application, documentary searches, drafting
observations requested by the Court, preparation for the Court’s fact-finding
mission, studying the records of the hearings before the Court’s delegates,
communication costs (faxes, telephone bills, normal and urgent mail),
translation costs and expenses for visits to the applicants in prison.
492. The
Moldovan Government opposed the award of the sums claimed for costs and
expenses on the ground that they had not been substantiated.
493. The
Court reiterates that, in order for costs and expenses to be included in an award
under Article 41, it must be established that they were actually and
necessarily incurred in order to prevent or obtain redress for the matter found
to constitute a violation of the Convention and were reasonable as to quantum
(see, for example, Kalashnikov v. Russia, no. 47095/99,
ECHR 2002-VI, § 146).
The
Court notes that the present case gave rise to several series of written
observations, an adversarial hearing and the hearing to take witness evidence
on the spot, which lasted seven days.
The
evidence submitted to the Court shows that the applicants’ representatives, Mr
Dinu, Mr T*nase and Mr Gribincea, incurred costs and expenses relating to the
matters found to constitute the violations.
Ruling
on an equitable basis and taking account of the work reasonably necessary to
produce the large volume of documents and observations filed on the applicants’
behalf, the Court awards the applicants the overall sum of EUR 21,000,
less the EUR 3,964 already paid in legal aid by the Council of Europe. This amounts
to EUR 4,363 for Mr Dinu’s fees and secretarial costs, EUR 3,960 for Mr
Gribincea’s fees and costs, and EUR 8,713 for Mr T*nase’s fees and costs.
C. Default interest
494. The
Court considers it appropriate that the default interest should be based on the
marginal lending rate of the European Central Bank, to which should be added
three percentage points.
FOR THESE REASONS, THE COURT
1. Holds by eleven votes to six that the applicants come
within the jurisdiction of the
2. Holds by sixteen votes to one that the applicants
come within the jurisdiction of the
3. Holds unanimously that the Court does not have
jurisdiction ratione temporis to examine the complaint under Article 6
of the Convention;
4. Holds
by sixteen votes to one that the Court has jurisdiction ratione temporis
to examine the complaints under Articles 2, 3, 5 and 8 of the Convention in so
far as they concern events subsequent to 12 September 1997 in the
case of the Republic of Moldova and 5 May 1998 in the case of the
Russian Federation;
5. Holds
by fifteen votes to two that the Court is not required to
determine whether it has jurisdiction ratione temporis to examine
the complaint under Article 1 of Protocol No. 1 to the Convention;
6. Holds unanimously that the complaint of a
violation of Article 2 of the Convention on account of the fact that Mr Ilascu
was sentenced to death by the “Supreme Court of the MRT” does not call for a
separate examination;
7. Holds
by eleven votes to six that there has been no violation of Article 3 of the
Convention by
8. Holds
by sixteen votes to one that there has been a violation of Article 3 of the
Convention by the Russian Federation on account of the ill-treatment inflicted
on Mr Ilascu and the conditions in which he was detained while under the threat
of execution, and that these must be termed torture within the meaning of that
provision;
9. Holds
by eleven votes to six that there has been a violation of Article 3 of the
Convention by Moldova since May 2001 on account of the ill-treatment inflicted
on Mr Ivantoc and the conditions in which he has been detained, and that these
must be termed torture within the meaning of that provision;
10. Holds
by sixteen votes to one that there has been a violation of Article 3 of the
Convention by the Russian Federation on account of the ill-treatment inflicted
on Mr Ivantoc and the conditions in which he has been detained, and that these
must be termed torture within the meaning of that provision;
11. Holds
by eleven votes to six that there has been a violation of Article 3 of the
Convention by Moldova since May 2001 on account of the ill-treatment inflicted
on Mr Lesco and Mr Petrov-Popa and the conditions in which they have been
detained, and that these must be termed inhuman and degrading treatment within
the meaning of that provision;
12. Holds
by sixteen votes to one that there has been a violation of Article 3 of the
Convention by the Russian Federation on account of the ill-treatment inflicted
on Mr Lesco and Mr Petrov-Popa and the conditions in which they have been
detained, and that these must be termed inhuman and degrading treatment within
the meaning of that provision;
13. Holds by eleven votes to six that there has
been no violation of Article 5 of the Convention by
14. Holds
by eleven votes to six that there has been and continues to be a violation of
Article 5 of the Convention by
15. Holds
by sixteen votes to one that there was a violation of Article 5 of the
Convention by the Russian Federation as regards Mr Ilascu until May 2001, and
that there has been and continues to be a violation of that provision as
regards Mr Ivantoc, Mr Lesco and Mr Petrov-Popa;
16. Holds unanimously that there is no cause to examine
separately the applicants’ complaint under Article 8 of the Convention;
17. Holds by fifteen votes to two that there has been no
violation of Article 1 of Protocol No. 1 to the Convention;
18. Holds
by sixteen votes to one that
19. Holds
by sixteen votes to one that the
20. Holds
by ten votes to seven that
(a) to Mr Ivantoc, Mr Lesco and Mr Petrov-Popa, EUR 60,000
(sixty thousand euros) each in respect of pecuniary and non-pecuniary damage;
(b) to each applicant, EUR 3,000 (three thousand euros) in
respect of non-pecuniary damage sustained on account of the breach of
Article 34;
(c) to
the applicants, the overall sum of EUR 7,000 (seven thousand euros), less EUR
1,321.34 (one thousand three hundred and twenty-one euros and thirty-four
cents) already received in legal aid, in respect of costs and expenses, made up
of EUR 1,454.33 (one thousand four hundred and fifty-four euros and
thirty-three cents) for Mr Dinu, EUR 1,320 (one thousand three hundred and
twenty euros) for Mr Gribincea and EUR 2,904.33 (two thousand nine hundred and
four euros and thirty-three cents) for Mr Tanase;
21. Holds
by sixteen votes to one that the
(a) to Mr Ilascu, EUR 180,000 (one hundred and eighty thousand
euros) in respect of pecuniary and non-pecuniary damage;
(b) to each of the other applicants, EUR 120,000 (one hundred
and twenty thousand euros) in respect of pecuniary and non-pecuniary damage;
(c) to each applicant, EUR 7,000 (seven thousand euros) in
respect of non-pecuniary damage sustained on account of the breach of
Article 34;
(d) to
the applicants, the overall sum of EUR 14,000 (fourteen thousand euros), less
EUR 2,642.66 (two thousand six hundred and forty-two euros and sixty-six cents)
already received in legal aid, in respect of costs and expenses, made up of EUR
2,908.67 (two thousand nine hundred and eight euros and sixty-seven cents) for
Mr Dinu, EUR 2,640 (two thousand six hundred and forty euros) for Mr
Gribincea and EUR 5,808.67 (five thousand eight hundred and eight euros and
sixty-seven cents) for Mr Tanase;
22. Holds
unanimously that the respondent States are to take all necessary measures to
put an end to the arbitrary detention of the applicants still imprisoned and
secure their immediate release;
23. Holds
unanimously that the amounts indicated in points 20 and 21 above are to be
converted into the national currency of the country of residence of each
applicant, at the rate applicable on the date of settlement, and that from the
expiry of the above-mentioned three months until settlement simple interest
shall be payable on them at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage points;
24. Dismisses
unanimously the remainder of the claim for just satisfaction.
Done
in English and in French, and delivered at a public hearing in the Human Rights
Building,
Luzius
Wildhaber
President
Paul Mahoney
Registrar
In
accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules
of Court, the following separate opinions are annexed to this judgment:
(a) partly
dissenting opinion of Mr Casadevall joined by Mr Ress, Mr Bîrsan,
Mrs Tulkens and Mrs Fura-Sandström;
(b) partly dissenting opinion of Mr Ress;
(c) partly
dissenting opinion of Sir Nicolas Bratza, joined by Mr Rozakis, Mr
Hedigan, Mrs Thomassen and Mr Pantîru;
(d) partly dissenting opinion of Mr Loucaides;
(e) dissenting opinion of Mr Kovler.
L.W.
P.J.M.
PARTLY DISSENTING OPINION OF
JUDGE CASADEVALL, JOINED BY JUDGES RESS, BÎRSAN, TULKENS AND
FURA-SANDSTRÖM
(Translation)
1. I
did not follow the majority of the Grand Chamber in their conclusion that
That
view led to the finding, a paradoxical and incoherent one in my opinion, that
Moldova breached Articles 3 and 5 of the Convention on account of the
ill-treatment, detention and conditions of detention suffered by Mr Ivantoc, Mr
Lesco and Mr Petrov-Popa (only after May 2001) but bore no responsibility for
the same facts and above all for the death sentence imposed by the “Supreme
Court of the MRT” and the risk of execution as regards Mr Ilascu.
As
the applicants come within the jurisdiction of Moldova (paragraph 335 of the
judgment), its responsibility is engaged, in my opinion, from the date of its
ratification of the Convention to the present and with regard to all the
applicants, there being no justification, quite the reverse in fact, for taking
the view that its positive obligations did not exist during the period from
12 September 1997 to May 2001, as the majority did. I have set out the
reasons why I disagree below.
2. The
ceasefire agreement of
3. As
the Court said, in view of the complexity of the factual situation, the
question whether
and omissions.
4. It
is true that, from the onset of the hostilities, the Moldovan authorities never
ceased complaining of the aggression they considered they had suffered and
rejected the secessionists’ declaration of independence. After the end of the
hostilities, in July 1992, the Moldovan authorities continued to take steps to
re-establish control, by bringing criminal proceedings in 1993. Subsequently,
after 1994, they continued to assert their sovereignty over the territory
controlled by the “MRT”, both internally and internationally (paragraphs 341 to
343 of the judgment).
5. However,
from 1997 onwards, the conclusion is inescapable that there was a
reduction in the number of attempts by the Moldovan authorities to exercise
control in Transdniestria, and that these attempts were limited to diplomatic
activity. Moreover,
On
the other hand, express or de facto measures of cooperation were taken
between the Moldovan authorities and the Transdniestrian separatists:
administrative, economic and political agreements were reached, relations were
established between the Moldovan parliament and the “parliament of the MRT”,
cooperation was introduced for several years in the police, prison and security
fields, and other forms of participation were developed in fields such as the
issuing of identity papers, air traffic control, telephone links and sport
(paragraphs 114, 174, 175, 177, 178, 179 and 185 of the judgment).
6. As
regards the applicants’ situation, before ratification of the Convention
in 1997 the Moldovan authorities took certain measures, such as the Supreme
Court’s judgment of 3 February 1994 quashing the applicants’ conviction and
setting aside the warrant for their detention; the prosecution beginning on 28
December 1993 of the “judges” of the “Supreme Court of the MRT” and other
Transdniestrian officials accused of usurping official functions; the amnesty
decreed by the President of Moldova on 4 August 1995; the Moldovan parliament’s
request of 3 October 1995; the sending of doctors to examine the applicants
detained in Transdniestria; and the assistance provided to the families
(paragraphs 222, 223, 226, 227, 239 of the judgment).
7. But
once again, after 1997, the measures taken to secure the applicants’
rights were limited to the sending of doctors (the last visit taking place in
1999), the provision of financial support to their families, and interventions
by Mr Sturza to secure their release (the last of these interventions recorded in
the file came in April 2001). The Moldovan Government acknowledged that in
response to the demands made by the separatists during discussions on a
settlement of the conflict and the applicants’ release they had changed their
negotiating strategy, giving more priority to diplomatic exchanges with a view
to preparing the return of
Transdniestria
to the Moldovan legal order, while simultaneously abandoning the judicial
measures previously taken (paragraph 344 in fine of
the judgment). It is understandable that certain cooperation measures were
taken by the Moldovan authorities with the laudable aim of improving the daily
lives of the Transdniestrian population and enabling them to lead as nearly
normal lives as possible.
8. I
do not wish to pass judgment on the pertinence or effectiveness of the
political strategy adopted by
As
regards the nature and effectiveness of the measures taken or those which could
have been taken, certain facts may be more significant than others on account
of their consequences. In that connection, having regard to Mr Ilascu’s release
in May 2001, it may be presumed that not all the measures envisaged to obtain
the applicants’ release could be considered doomed to failure, as the majority
seem to admit in the second part of paragraph 347 of the judgment.
9. I
consider that the efforts made by the Moldovan authorities with a view to
securing the rights set forth in the Convention after its ratification in 1997
were not pursued with the firmness, determination and conviction required by
the serious situation the applicants found themselves in. For example, the
following instances of manifest inaction, and sometimes counter-action, must be
noted.
– On
28 December 1993 an investigation was opened in connection with the persons
involved in the applicants’ prosecution and conviction, but the absence of
information on the measures taken by the authorities to bring this
investigation to a satisfactory conclusion, could give rise to serious
doubts about its effectiveness (paragraph 221 of the judgment).
– The
Moldovan Supreme Court’s judgment of 3 February 1994 quashing the judgment of
the “Supreme Court of the MRT” of 9 December 1993 and ordering the
return of the case file to the prosecution service for a new investigation was
never acted upon (paragraph 222 of the judgment).
– No steps were taken after the
amnesty declared on
– On
– The
opening by the public prosecutor on 16 August 2000 of a criminal investigation
in respect of the governor of Hlinaia Prison was not followed up and in
any case the governor told the Court’s delegates that he had not been
informed of it (paragraph 230 of the judgment and § 137 of the Annex).
– As
a result of the staying or discontinuance of the above-mentioned investigations,
it is now possible for certain senior officials of the “MRT” regime, including
Mr Chevtsov, to enter Moldova without being called to account in any real sense
for their activities in the regime’s service (see Annex, Mr Ilascu, § 21, and
Mr Rusu, § 304). Moreover, I note, with no small surprise, that since his
return to Moldova a former “Minister of Justice of the MRT”, Mr Sidorov, has
held high State office in several capacities and has been the President of
the Moldovan Parliament’s Human Rights and Minorities Committee since 2001
(paragraph 168 of the judgment).
10. It
should be noted that, while taking steps to promote cooperation with the
secessionist regime with the avowed aim of making life easier for the
population of Transdniestria, the Moldovan authorities have not displayed the
same diligence with regard to the fate of the applicants. In
their negotiations with the separatists, whether before or after May 2001, the
Moldovan authorities have restricted themselves to raising the question orally,
without trying to reach a written agreement providing for their release
(paragraphs 172 and 348 of the judgment). Similarly,
although three of the applicants have been unlawfully deprived of their liberty
for nearly twelve years, no overall plan for the settlement of the
Transdniestrian situation deals with their situation (paragraph 348 in fine).
11. The
Court accepts that the Moldovan authorities have not shown themselves any more
attentive to the applicants’ fate in their bilateral relations with the Russian
Federation, and that the fact that the Moldovan Government refrained at the
hearing on 6 June 2001 from arguing that the Russian Federation might be
responsible, with the aim of averting “undesirable consequences, namely the
halting of the process aimed at ending ... the detention of the other
applicants” (paragraph 360 of the judgment), amounted to an admission on
their part of the influence the Russian authorities might have over the
Transdniestrian regime (paragraph 349 of the judgment). However, it would seem
that the Moldovan authorities, both before and after 2001, did not use all the
opportunities available to them to bring that influence into play on the
applicants’ behalf.
12. In
conclusion, one may well disagree with the minority, who consider that the
applicants are not within the jurisdiction of Moldova for the purposes of
Article 1 of the Convention, that Moldova has not failed to discharge its
positive obligations and that its responsibility is not engaged in respect of the
violations complained of, but that approach is perfectly coherent. On the other
hand, the conclusion that the applicants are within the jurisdiction of
The
fateful date “May 2001” seems wholly artificial and nonsensical.
DISSENTING OPINION OF JUDGE RESS
1. I
have joined the dissenting opinion of Judge Casadevall but I would like to make
some additional remarks on the positive obligations of
2. I
agree with the statement in paragraph 335 that the applicants are within the
jurisdiction of the Republic of Moldova for the purposes of Article 1 of the
Convention but that its responsibility for acts complained of and
committed in the territory of the “MRT”, over which it exercises no effective
authority, is to be assessed in the light of its positive obligations. It is
difficult to see how
became less intensive and
forceful after the ratification of the Convention by
As
the Court has rightly stated, this obligation to re-establish control over
Transdniestria required Moldova, firstly, to refrain from supporting the
separate regime of the “MRT” in particular after 1997 and, secondly, to act by
taking all the political, judicial and other measures at its disposal,
especially regarding the applicants’ situation and any further violations of the
Convention in relation to them. The Court itself notes that there was a
“reduction in the number of judicial measures intended to assert Moldovan
authority in Transdniestria” (paragraph 344). I fully agree with the analysis
of Judge Casadevall that there is nothing to justify the conclusion that
Moldova discharged its positive obligations before Mr Ilascu’s release in May
2001 but that since this release there have been fewer significant signs, if
any, of effective measures which the Moldovan Government could have taken to
secure to the applicants their rights under the Convention.
It
is obvious that there were different “phases” of more or less effective
political and judicial efforts to re-establish
3. The
situation in Moldova is different from that described in the Cyprus v.
Turkey judgment (10 May 2001, § 78, Reports of Judgments and Decisions
2001-IV) where the Court referred to the continuing inability of the Republic
of Cyprus to exercise its Convention obligations in Northern Cyprus as there
was a full military occupation of Northern Cyprus by Turkey. In the present
case there is no occupation of the Transdniestrian territory even though there
is a rebel regime and the
exercises a decisive influence
and even control in that territory. But
4. It
is not for the Court to exclude any tacit agreement or acquiescence between
States on the exercise of authority and control. But under the Convention in
all these cases the State is under the positive obligation to ensure that the
Convention rights and freedoms continue to be observed.
The
most crucial question is what measures the Court should indicate as being
absolutely necessary for the fulfilment of that positive obligation. In my
view, in order not to be held tacitly to acquiesce in the acts of the rebel
authority the State has to
(a) continue its firm protests at bilateral and international
levels against the illegal exercise of authority on its territory;
(b) continue to take all possible and legally acceptable
measures to regain full control on its territory;
(c) continue
to seek support, bilaterally and internationally, in particular through
international organisations, for all measures taken against the illegal regime,
since the Contracting States are required to secure human rights protection
throughout their territory; and
(d) not lend such support to the rebel regime as could be
interpreted as clear acquiescence in its exercise of authority.
Questions
about the efficacy of stricter measures like an economic blockade etc. to
ensure the protection of human rights in the short term, or the usefulness of
economic, cultural and other cooperation to resolve the situation, are matters
of political evaluation and diplomacy, to which the Court has cautiously tried
to avoid giving an answer.
5. In
contrast to the situation in
6. It
will always be difficult to assess such a mosaic of measures, but if one
recognises that the Russian Federation had jurisdiction over Transdniestria at
the material time, and continues to exercise control, then one realises that
there was an obvious lack of formal protests, declarations or other measures
towards the Russian Federation, third countries, the United Nations and other
international organisations, in an attempt to influence them to bring the
illegal situation in Transdniestria and the applicants’ unacceptable situation
to an end.
PARTLY DISSENTING OPINION OF JUDGE SIR NICOLAS BRATZA,
JOINED BY JUDGES ROZAKIS, HEDIGAN, THOMASSEN AND PANTÎRU
1. While
I am in agreement with the conclusion of the majority of the Court that the
responsibility of the
2. Central
to the case against both respondent States is the question whether the
applicants are to be regarded as “within their jurisdiction” for the purposes
of Article 1 of the Convention. If they are to be so
regarded, State responsibility will in principle attach for breaches of the
Convention which are shown to have occurred or to have continued after the
coming into effect of the Convention – in the case of
3. It
is established in the Bankovic decision (Bankovic & Others v.
Belgium and 16 Other Contracting States, no. 52207/99, § 59-61, ECHR 2001-XII)
that the notion of “jurisdiction” in Article 1 of the Convention is essentially
territorial in nature and that it is only in exceptional cases that acts
performed or producing effects outside the territory of a Contracting State can
constitute an exercise of “jurisdiction” for this purpose. Conversely, the
presumption that persons within the territory of a State are within its
“jurisdiction” for Convention purposes is a rebuttable one and, exceptionally,
the responsibility of a State will not be engaged in respect of acts in breach
of the Convention which occur within its territory. This is apparent from the Cyprus
v. Turkey judgment ([GC], no. 25781/94, § 78, ECHR 2001-IV) where the Court
referred to “the continuing inability [of the Republic of Cyprus] to exercise
its Convention obligations in northern Cyprus” and thus to “the regrettable vacuum
in the system of human rights protection” which would follow from a finding
that the applicants were not within the jurisdiction of Turkey.
4. The
principal questions which fall to be determined are (i) whether this is an
exceptional case in which the applicants are to be regarded as within the
“jurisdiction” of the Russian Federation despite being at all material times
outside the territory of that State and (ii) whether, being within the
territory of Moldova, the applicants are to be regarded as within its
“jurisdiction” so as to engage the responsibility of that State or whether,
exceptionally, the presumption that they were and are within Moldova’s
jurisdiction is rebutted. The two questions are closely linked and depend, as
the Court’s judgment makes clear, on a close analysis of the factual situation
existing in, and relating to, the Transdniestrian region from 1991 until the
present day.
A. Applicable principles
5. The
circumstances in which a State may be held responsible for acts in breach of
the Convention occurring outside its territory were addressed and defined in
the Court’s judgments in Loizidou v. Turkey (Preliminary Objections)
(judgment of 23 March 1995, Series A no. 310), Loizidou v. Turkey (Merits)
(judgment of 18 December 1996, Reports 1996-VI, 2216) and Cyprus v. Turkey
(cited above) and in its Bankovic decision (cited above). Such
responsibility may, so far as relevant, attach:
(i) where as a consequence of military action – whether lawful
or unlawful – a State exercises effective control of an area outside its
national territory. Such control may be exercised directly, through its own
armed forces or (indirectly) through a subordinate local administration (Loizidou,
(Preliminary Objections) § 62). Where a State exercises effective
overall control of a territory, its responsibility cannot be confined to the
acts of its own soldiers or officials – whether or not those acts are
authorised by the high authorities of the State – “but must also be engaged by
virtue of the acts of the local administration which survives by virtue of
[the] military and other support” (Cyprus v. Turkey, § 77). Further,
when such effective control is found to exist, responsibility attaches even if
no detailed control is exercised over the policies and actions of the local
administration (Loizidou, (Merits) § 56).
(ii) where
a State, through the consent, invitation or acquiescence of the Government of
the territory, exercises all or some of the public powers normally to be
exercised by that Government (Bankovic, § 71).
6. There
is less direct authority as to the converse case – the responsibility of a
State within whose territory violations of the Convention occur but which is
prevented from exercising any effective control within the territory in
question, whether due to military occupation by the armed forces of another
State, or to acts of war or rebellion within the territory or to the occupation
and control of the territory by a separatist administration sustained by rebel
forces or by another State. It is clear that an individual remains “within the
jurisdiction” of the State and that the presumption of State responsibility is
not rebutted where the State concerned is shown to collude with the local
administration in the exercise of authority by that administration within the
territory concerned. Further, even if a State does not exercise effective
control within a part of its territory, an individual will be treated as within
that State’s “jurisdiction” in respect of acts in violation of the Convention
occurring within that part, if its servants or agents can be shown to have
participated directly or indirectly in the particular acts in question or to
have acquiesced in the commission of those acts.
7. The
majority of the Court go further, holding that where a
territory
by a constraining de facto situation, such as obtains when a separatist
regime is set up, it does not thereby cease to have “jurisdiction” for the
purposes of Article 1 of the Convention over that part of its territory
temporarily subject to a local authority sustained by rebel forces or by
another State; rather, such a factual situation “reduces the scope of that
jurisdiction in that the undertaking given by the State under Article 1 must be
considered by the Court only in the light of the Contracting State’s positive
obligations towards persons within its territory.” (paragraph
333 of the judgment). The nature of the positive obligation thereby incurred is
variously described in the judgment as a “duty to take all the appropriate
measures which it is still within its power to take” to ensure respect for the
Convention rights and freedoms (paragraph 313); an “obligation ... to take the
diplomatic, economic, judicial or other measures that it is in its power to
take and are in accordance with international law to secure to the applicants
the rights guaranteed by the Convention” (paragraph 331); and a duty to
“endeavour, with all the legal and diplomatic means available to it vis-à-vis
foreign States and international organisations, to continue to guarantee the
enjoyment of the rights and freedoms guaranteed by the Convention” (paragraph
333). In the opinion of the majority, the Court’s role is not to indicate what
measures the authorities should take in order to comply with their obligations
most effectively but rather to verify that the measures actually taken were
appropriate and sufficient in the present case, the Court’s task being “to determine
to what extent a minimum effort was nevertheless possible and whether it should
have been made” (paragraph 334 of the jugdment). Applying these principles
in the concrete case, the majority of the Court find that “the applicants are
within the jurisdiction of the Republic of Moldova for the purpose of Article 1
of the Convention but that its responsibility for the acts complained of,
committed in the territory of the “MRT”, over which it exercises no effective
authority, is to be assessed in the light of its positive obligations under the
Convention” (paragraph 335).
8. I
am unable to agree with this analysis. In the first place, I have difficulty in
accepting the proposition that those within a part of the territory of a State
over which, as a result of its unlawful occupation by a separatist
administration, the State is prevented from exercising any authority or control
may nevertheless be said to be within the “jurisdiction” of that State
according to the autonomous meaning of that term in Article 1 of the
Convention, which term presupposes that the State has the power “to secure to
everyone....the rights and freedoms” defined therein. I find it equally
difficult to accept the conclusion of the majority of the Court that in such a
factual situation those within the territory remain “within [the] jurisdiction”
of the State but that the scope of that “jurisdiction” is reduced, the State
continuing to owe positive obligations with regard to the Convention rights of
everyone in the territory. The very use of the term “the positive obligations
of the State” and the reliance placed in the judgment on the case-law of the
Court under Article 1 concerning such obligations appears to me to be both
misleading and unhelpful in the present context. That case-law – with its
references to the fair balance to be struck between the general interest and
the interests of the individual and the choices to be made in terms of
priorities and resources – was developed in a factual context where the
respondent State exercised full and effective control over all parts of its
territory and where individuals within that territory were indisputably within
the “jurisdiction” of the State for Convention purposes. The Court’s reasoning
cannot in my view be readily adapted to the fundamentally different context in
which a State is prevented by circumstances outside its control from exercising
any authority within the territory and where the very issue is whether
individuals within the territory are to be regarded as within the “jurisdiction”
of the State for Convention purposes.
I
am unable to accept that in such a situation responsibility for a violation of
the Convention rights of individuals within the territory may attach to the
State merely because of a failure on its part to establish that it had made
sufficient efforts on the legal or diplomatic plane to guarantee those rights.
In the specific context of the present case, the responsibility of a State in
respect of the wrongful detention of persons detained within territory outside
its effective control cannot in my view depend on whether at any particular
point of time the State is, in the estimation of the Court, making sufficiently
concerted efforts to secure their release. Nor can I accept an interpretation
of the Convention which would require the Court to make an assessment, in a
complex and fluctuating international situation, as to whether particular legal
or diplomatic measures would be effective to restore constitutional rule within
the territory, whether such measures were in practice possible and whether they
were adequately implemented by the State concerned.
9. I
can agree that, where a State is prevented from exercising any authority or
control over territory within its borders, the inaction of the State concerned
may nevertheless be held to engage its responsibility under the Convention in
respect of those within the territory. However, such responsibility could in my
view only attach in exceptional circumstances where the evidence before the
Court clearly demonstrates such a lack of commitment or effort on the part of
the State concerned to reassert its authority or to reinstitute constitutional
order within the territory as to amount to a tacit acquiescence in the
continued exercise of authority or “jurisdiction” within the territory by the
unlawful administration.
B. Application of the principles in the
present case
1. The
10. Applying
these principles to the facts of the present case, I am in full agreement with
the reasoning of the majority of the Court in holding that, at all material
times, the applicants were, and in the case of three of the applicants continue
to be, within the “jurisdiction” of the Russian Federation for the purposes of
Article 1 of the Convention and that responsibility accordingly attaches for
the violations of the Convention which have been found by the Court. In
particular, I find the following facts to be established on the evidence before
the Court:
(i) During
the conflict in 1991-92, forces of the Fourteenth Army (after
1 April 1992, the Russian Operational Group – ROG) stationed in
Transdniestria fought with and on behalf of the separatist forces within the
territory and voluntarily transferred to them, or allowed to be seized by them,
large quantities of armaments.
(ii) Throughout
the conflict, the leaders of the
(iii) The
applicants were arrested in June 1992 with the direct participation of soldiers
of the former Fourteenth Army/ROG; the first three applicants were detained in
the garrison headquarters of the former Fourteenth Army/ROG where they were
severely ill-treated; and the applicants were subsequently surrendered by the
Army authorities into the charge of the separatist police in the knowledge of
the offences of which they were suspected and the likely consequences for the
applicants of their surrender to the illegal and unconstitutional regime.
(iv) Following the ceasefire agreement of
(v) In
the period after ratification of the Convention, the Russian Federation,
through its continued stationing of troops on Moldovan territory in breach of
its undertaking to withdraw, combined with its economic, financial and
political support for the illegal Transdniestrian regime which it had helped to
establish, has continued to enable the regime to survive and to exercise
authority and control within the territory.
2.
11. I
would note at the outset that, unlike the situation examined by the Court in
its recent Assanidze v. Georgia judgment ([GC] no. 71503/01, ECHR
2004-...), the present case is not one in which the Moldovan authorities are
merely “[encountering] difficulties in securing compliance with the rights
guaranteed by the Convention in all parts of their territory” (judgment,
paragraph 146). As noted in the present judgment (paragraph 330), it is common
ground that, from the beginning of the conflict in 1991 until the present day,
Moldova has been, and continues to be, prevented from exercising any authority
or control within the territory of Transdniestria as a result of the occupation
of the territory by the unlawful separatist regime. Moreover, the majority of
the Court acknowledge in the judgment that, in the period from 1991 until the
date of ratification of the Convention by Moldova in September 1997, not only
did Moldova bear no responsibility for the acts in violation of the Convention
of which the applicants complain but no criticism can be made of a lack of
commitment or effort on the part of Moldova to reassert its control within the
territory or to secure the applicants’ rights. This is, in my view, plainly
correct.
During
the course of the hostilities themselves, the constitutional authorities of
12. As
regards the position of the individual applicants, not only was their arrest,
detention and treatment while in custody not imputable in any sense to the
Moldovan authorities, but, as emphasised in the judgment, there is nothing to
suggest any collusion or acquiescence on their part in any of the acts in
violation of the Convention of which complaint is made. The evidence shows
that, on the contrary, the executive and judicial authorities of the State took
a number of steps to emphasise the unlawfulness of what had occurred and to
secure the release of the applicants, in particular by quashing the applicants’
convictions, by instituting criminal proceedings against those responsible for
their prosecution and conviction and by systematically raising the question of
the applicants’ release in discussions with both the separatist leaders and the
authorities of the Russian Federation.
13. In
a declaration made by Moldova and contained in the instrument of ratification
of the Convention deposited on 12 September 1997 it was stated that Moldova
would be “unable to guarantee compliance with the provisions of the Convention
in respect of omissions and acts committed by the organs of the self-proclaimed
Trans-Dniester republic within the territory actually controlled by such
organs, until the conflict in the region is finally settled”. While the Court
in its decision on the admissibility of the application held that the declaration
was not a valid reservation for the purposes of Article 57 of the Convention,
there is no reason to doubt that the declaration represented an accurate
statement of the factual situation at the date of ratification.
14. It
is in the period after September 1997 that the majority of the Court have found the Moldovan authorities to be open to criticism.
Since it is accepted that Moldova exercised no control within the territory of
Transdniestria, it is not suggested that the State bears direct responsibility
for the Convention violations of which complaint is made; rather, the majority
have found that the responsibility of Moldova for such violations is engaged on
the grounds of its failure to discharge its positive obligations to take
sufficient, effective and appropriate measures to secure the applicants’
Convention rights. However, the judges making up the majority are divided as to
the relevant date from which
(a) Responsibility from September 1997
15. The
conclusion of the first group that
- an alleged reduction in the number of attempts by
- the development of administrative, economic, political,
security and other cooperation between the Moldovan and Transdniestrian
authorities; and
- a diminution in the measures taken and efforts made by
It
is convenient to address in turn each of these factors, none of which in my
view, seen either individually or collectively, is such as to justify a finding
of State responsibility on the part of Moldova.
16. As to the first of the factors relied on, it is true that
there appears to have been a diminution in the judicial measures in
17. I
do not attach great significance to the failure to pursue these measures, which
had not over the years proved effective in bringing to an end or undermining
the illegal regime within the territory and the effect of which appears to have
been at most symbolic. Special emphasis is laid by the first group on the fact
that, having reclassified the charges against those responsible for prosecuting
and convicting the applicants on
18. More
importantly, as the judgment recognises, in and from 1998, the efforts of the
Moldovan authorities were directed more towards diplomatic activity designed to
bring about an overall settlement of the situation in the region and the
restoration of constitutional rule in the Transdniestrian territory. In particular,
in March 1998, the authorities of Moldova, the Russian Federation, Ukraine and
the region of Transdniestria signed a number of instruments with a view to
settling the Transdniestrian conflict (judgment, paragraph 97); numerous
contacts and negotiations took place between representatives of Moldova and the
separatist regime with the same purpose (judgment, paragraphs 103-4 and 171);
and from 2002 to the present day a number of proposals for resolution of the
situation have been put forward and discussed between the authorities of
Moldova, the Russian Federation and the OSCE (judgments, paragraphs 106-109). I
see no reason to doubt the assertion of the Moldovan Government, which was
supported by the evidence of Mr Sturza (Annex, §§ 309-313) and Mr Sidorov
(Annex, § 446), that this change of strategy towards diplomatic approaches was
aimed at laying the ground for the return of the Transdniestrian territory
within the Moldovan legal order and thereby restoring the constitutional rights
of those living within the territory, including the applicants. I can find
nothing in the efforts which have been made and continue to be made by the
Moldovan authorities to negotiate an overall settlement to suggest support for
the separatist regime or acquiescence in its continued unlawful exercise of
authority within the territory.
19. The
reliance placed on the measures of cooperation with the separatist authorities
is, I consider, to be viewed in the same light. Special attention is drawn in
the opinion of the first group to economic cooperation agreements, the
establishment of relations between the Moldovan Parliament and the so-called
“Parliament of the MRT”, cooperation in police and security matters and forms
of cooperation in other fields such as air traffic control, telephone links and
sport. The Moldovan Government explained that these cooperative measures had
been taken out of a concern to improve the every day conditions of those living
in Transdniestria and to allow them to live as normal lives as possible. No
convincing grounds have been advanced for doubting that this was the underlying
aim – an aim which is accepted in the opinion of the first group to be a
laudable one - and, given their nature and limited character, the measures
cannot, in my view, be seen as affording any support for the Transdniestrian
regime. On the contrary, they represent a confirmation by
20. The
first group criticise the fact that, in taking steps to improve the conditions
of life of those within the territory, the Moldovan authorities have not
displayed the same diligence with regard to the fate of the applicants. While
asserting that it is not for the Court to assess the pertinence or effectiveness
of the political strategy adopted by Moldova in order to settle as crucial a
question as that of its territorial integrity, the first group nevertheless go
on to observe that the Moldovan authorities remain under an obligation “to take
all the measures in their power, whether political, diplomatic, economic,
judicial or other measures..., to secure the rights guaranteed by the
Convention to those formally within their jurisdiction, and therefore to all
those within Moldova’s internationally recognised borders”. However, quite
apart from my disagreement with the suggestion that those in territory of
Transdniestria are to be regarded as within the “jurisdiction” of Moldova for
Convention purposes, these criticisms overlook, in my view, that the very purpose
of the political strategy was and is to restore constitutional rule to the
separatist territory, which remains an essential pre-condition for securing the
Convention rights of all those within the territory, including the applicants
themselves.
21. The
alleged lack of effort on the part of the Moldovan authorities since 1997
specifically directed to securing the Convention rights of the applicants is
the third of the principal factors relied on by the first group. Complaint is
made that, after the date of ratification, the efforts to secure the
applicants’ rights “were not pursued with the firmness, determination and
conviction required by the serious situation which the applicants found
themselves in.” It is said that, since that date, the measures taken by
22. I
find it difficult to understand this criticism insofar as it relates to the
period from 1997 until 2001. Mr Mosanu gave evidence that the issue of the
applicants was raised at OSCE meetings, at meetings with foreign States and at
a meeting of the Inter-Parliamentary Union (Annex, § 249). The unchallenged
evidence of Mr Sturza, the former Minister of Justice and Chairman of the
committee for negotiations with Transdniestria, was that he had continued after
1997 to raise the question of the applicants’ release with the separatist
authorities. It was following those negotiations that Mr Sturza went to
Transdniestria in April 2001 to bring back to Chisinau the four applicants,
whom he was deceived into believing would all be released (Annex, § 312) and, according
to the evidence before the Court, it was at least in part as a result of these
negotiations that Mr Ilascu was in fact released in the following month. Having
regard to the fact that the Moldovan authorities still hoped at the time to
secure the release of the other three applicants, unlike the first group, I do
not find it in the least surprising that Mr Chevtsov was permitted to enter
Moldova bringing Mr Ilascu with him “without being called to account in any
real sense for [his] activities in the regime’s service”.
23. I
can accordingly agree with the view of the second group of judges forming part
of the majority that the responsibility of
(b) Responsibility after May 2001
24. The
conclusion of the second group that the responsibility of Moldova was engaged
after May 2001 is not founded on any reduction since that date in the number of
judicial measures intended to assert Moldovan authority in Transdniestria; on
the contrary, according to the second group, the reduction in the number of
measures is not to be seen as a renunciation on Moldova’s part of attempts to
exercise its jurisdiction in the region, regard being had to the fact that
several of the measures tried by Moldova had been blocked by “MRT” reprisals in
2001 and 2002 (judgment, paragraph 344). Instead, the reasoning of the second group
is founded essentially on a claimed lack of evidence that since Mr. Ilascu’s
release effective measures have been taken by the Moldovan authorities to put
an end to the continuing infringements of the applicants’ Convention rights. It
is said that, apart from Mr. Sturza’s evidence that the applicants’ situation
continued to be raised regularly by the Moldovan authorities in their dealings
with the “MRT” regime, “the Court has no other information capable of
justifying the conclusion that the Moldovan Government have been diligent with
regard to the applicants” (judgment, paragraph 348).
25. It
is true that after May 2001 the negotiations with the representatives of the
Transdniestrian administration and of the
26. While
acknowledging that these efforts were made, reliance is placed in the judgment
on the fact that the question of the applicants’ situation was only raised
orally (paragraph 348) and that the Court has not been informed of any overall
plan for the settlement of the Transdniestrian conflict which deals with their
situation (paragraph 348). It is also stated that there is no evidence before
the Court of any approach by the Moldovan authorities to the Russian
authorities aimed at obtaining the release of the remaining applicants
(paragraph 349). While both points are true, I am wholly unpersuaded that
the absence of such material serves to support the majority’s conclusion that
Moldova has failed to take sufficient, effective or appropriate measures to
secure to the applicants their Convention rights. Still less am I able to
accept that the evidence before the Court establishes any acquiescence on the
part of the Moldovan authorities in the continued detention of three of the
applicants.
27. For
these reasons, I have concluded that the applicants were at no material time
within the “jurisdiction” of Moldova for the purposes of Article 1 of the
Convention, that Moldova has not failed to discharge any obligation in respect
of the applicants imposed by that Article and that the responsibility of
Moldova is accordingly not engaged in respect of the violations of the
Convention complained of by the applicants, whether before or after May 2001.
28. It
follows that I have not only voted against the finding that there has been a
violation by Moldova of the Convention rights of any of the applicants but also
against the finding that Moldova should make payments to the applicants by way
of just satisfaction. I have voted with the majority in respect of all other
paragraphs of the operative part of the judgment (including the finding that
Moldova failed to discharge its obligations under Article 34 of the
Convention), save as to the award of compensation in paragraph 21(c) in respect
of non-pecuniary damage on account of the Russian Federation’s failure to
discharge its obligations under Article 34. In my view, even if such a failure
is to be seen as “a violation of the Convention” for the purpose of Article 41
of the Convention so as to permit the award of just satisfaction, which I
consider doubtful, I do not regard it as appropriate to make such an award in
the present case.
PARTLY DISSENTING OPINION OF JUDGE LOUCAIDES
I
would first like to reiterate the view which I expressed in the case of Assanidze
v. Georgia ([GC] no. 71503/01, ECHR 2004-...) as regards the notion of
“jurisdiction” within the meaning of Article 1 of the Convention, dealt with in
paragraphs 310 to 314 and 319 of the judgment in the present case.
“To
my mind ‘jurisdiction’ means actual authority, that is to say the possibility
of imposing the will of the State on any person, whether exercised within the
territory of the High Contracting Parties or outside that territory. Therefore,
a High Contracting Party is accountable under the Convention to everyone
directly affected by any exercise of authority by such Party in any part of the
world. Such authority may take different forms and may be legal or illegal. The
usual form is governmental authority within a High Party’s own territory, but
it may extend to authority in the form of overall control of another territory
even though that control is illegal (Loizidou v. Turkey (Preliminary
Objection) judgment of 23 March 1995, Series A no. 310), notably occupied
territories (Cyprus v. Turkey [GC], no. 25781/94, ECHR-2001-IV). It
may also extend to authority in the form of the exercise of domination or
effective influence through political, financial, military or other substantial
support of a government of another State. And it may, in my opinion, take the
form of any kind of military or other State action on the part of the High
Party concerned in any part of the world (see, by way of contrast Bankovic,
cited in the judgment).
The
test should always be whether the person who claims to be within the
‘jurisdiction’ of a State, High Contracting Party to the Convention, in respect
of a particular act can show that the act in question was the result of the
exercise of authority by the State concerned. Any other interpretation
excluding responsibility of a High Contracting Party for acts resulting from
the exercise of its State authority would lead to the absurd proposition that
the Convention lays down obligations to respect human rights only within the
territory under the lawful or unlawful physical control of such Party and that
outside that context, leaving aside certain exceptional circumstances (the
existence of which would be decided on a case-by-case basis), the State Party
concerned may act with impunity contrary to the standards of behaviour set out
in the Convention. I believe that a reasonable interpretation of the provisions
of the Convention in the light of its object must lead to the conclusion that
the Convention provides a code of behaviour for every High Contracting Party
whenever they act in exercise of their State authority with resulting
consequences to individuals.”
I
wish to expand my aforesaid position by adding that a State may also be
accountable under the Convention for failure to discharge its positive
obligations in respect of any person if it was in a position to exercise
its authority directly or
even indirectly over that person or over the territory where such person is.
In
the light of the above and the facts and circumstances of the case as set out
in the judgment, I agree with the majority that applicants come within the
“jurisdiction” of the
However
I disagree with the majority that the applicants come under the “jurisdiction”
of the Moldovan Government and that
None
of the factors set out by the majority in support of their conclusion that
In
any case, to conclude that there is “jurisdiction” over certain persons for the
purposes of the Convention simply because the Government concerned have failed
to take judicial, political, diplomatic and economic measures or any other of
the measures invoked by the majority, with the object of securing the
Convention rights of the applicants even though actual authority over these
persons on the part of the Government was lacking, would be stretching the
concept of “jurisdiction” to an unrealistic and absurd extent. In other words
it would, in my opinion, be a fallacy to accept that a High Contracting Party
to the Convention has “jurisdiction” over any person outside its authority
simply because it does not take the political or other measures mentioned in
general terms by the majority. Such a position would lead, for instance, in my
view to the illogical conclusion that all High Contracting Parties to the
Convention, would have jurisdiction and responsibility for violations of the
human rights of persons in any territory of a High Contracting Party, including
their own but outside their actual authority (either de facto or de
jure or both depending on the territory), merely by virtue of not pressing
to secure the Convention rights in that territory through action against the
State which does in reality exercise such authority over these persons.
I
believe that the interpretation of a treaty should avoid a meaning which leads
to a result which is manifestly absurd.
In
the Bankovic decision (with which I personally disagree) the Grand
Chamber of the Court found that the bombing of buildings in Belgrade resulting
in the killing of 16 civilians was an extraterritorial act outside the
“jurisdiction” of the High Contracting Parties to the Convention responsible
for such bombing and for that reason the relevant complaint of the relatives of
the deceased was dismissed as inadmissible. It seems to me incomprehensible and
certainly very odd for a High Contracting Party to escape responsibility under
the Convention on the ground that the throwing of bombs from its aeroplanes
over an inhabited area in any part of the world does not bring the victims of
such bombing within its “jurisdiction” (i.e. authority) but a failure on
the part of such Party “to take all the measures in [its] power whether
political diplomatic, economic, judicial or other measures ... to secure the
rights guaranteed by the Convention to those formally [de jure] within
its jurisdiction” but in actual fact outside its effective authority
ascribes jurisdiction to that State and imposes on it positive duties towards
them.
At
all events I believe that the authorities of
DISSENTING OPINION OF JUDGE KOVLER
(Translation)
“The
frontier between the judicial and the political is not what it was. Nor are the
foundations of legitimacy, still less normativeness, which is becoming plural
and increasingly diffuse” (Lajoie A., Jugements de valeurs, Paris
PUF, 1997, p. 207)
I
regret that I do not find myself among the majority and that, while I respect
my colleagues’ opinions, I have to express publicly, by virtue of Article 45 §
2 of the Convention, my deep disagreement with the Grand Chamber’s judgment in
the present case.
My
disagreement concerns the methodology of the analysis, the way the facts are presented,
the analysis of the concepts of “jurisdiction” and “responsibility, and lastly
the conclusions the Court has reached. I am therefore obliged to spend some
time on each of those points.
I. Methodology of the analysis
This
case provides an example of a situation in which “human rights become a policy”
(Gauchet M., La démocratie contre elle-même, Paris, 2002, p. 326). In
view of the particular nature of the case, in which the applicants’ situation
is indissociable from an extremely complex geopolitical context, the Court
finds itself in new territory, given the lack of applicable case-law. The
Court’s judgment in this case could have set a precedent for similar situations
in other zones of conflict within the member States of the Council of Europe,
including those which have joined recently. The historical roots of the
conflict in which the countries of the region were involved and the
“fragmenting-empire” effect are features which bring to mind conflicts such as
the not-so-very distant Balkans or Caucasus have seen.
However,
the Court (wrongly in my opinion) preferred to see the situation in terms of a
Cyprus-type conflict, following its corresponding case-law and falling into the
trap that that case-law represented. To my mind that was a methodological
error. The superficial similarities between the present case and the Loizidou
case are deceptive. The only point in common (to which I will return) is the
source of the conflict, namely the prospect for a sizeable community of being
attached to another country from which it is radically differentiated by its
historical, economic and cultural ties. Hence the reactions and
counter-reactions of the participants in the conflict, which took violent forms
and led to human tragedies.
However,
even this Loizidou case-law has many lessons to teach us in that it can
help us avoid hasty and simplistic conclusions. In his dissenting opinion in
the Loizidou case Judge Bernhardt, joined by Judge Lopes Rocha, pointed
out: “[In] the present case ... it is impossible to separate the situation of
the individual from a complex historical development and a no less complex
current situation” (Loizidou v. Turkey, (Merits) judgment of
18 December 1996, Reports 1996-VI, p. 2242). Noting the
failure of the negotiations aimed at the reunification of
In
another dissenting opinion in the same case Judge Pettiti observed: “[...]
however hesitant the international community has been in attempting to solve
the international problems over Cyprus since 1974 ... those responsibilities
being of various origins and types, the whole problem of the two communities
(which are not national minorities as that term is understood in international
law) has more to do with politics and diplomacy than with European judicial
scrutiny based on the isolated case of Mrs Loizidou and her rights under
Protocol No. 1” (ibid., pp. 2253-2254). The caution and wisdom of those words
is entirely justified.
Unfortunately,
in the present case the Court took the risk of examining on the basis of the
isolated situation of the four applicants (since, unlike the position in
Cyprus, no system for the reproduction of similar cases has come to light) a
nexus of different problems: military (the judgment contains an analysis of the
military aspects of the Transdniestrian conflict and a detailed calculation of
weapons stocks worthy of a headquarters staff), economic (assessment of the
relations between partners who have been operating for decades in the same
economic space), political (hard-to-verify quotations from “undated” statements
by political leaders and military personnel). Admittedly, the Court was
overwhelmed by the huge volume of contradictory information from the
applicants, the three States who were involved in the proceedings and its own
on-the-spot fact-finding mission; it performed an enormous and highly
creditable task of selection. But the strictly legal questions (for example,
what legal classification to give to the right of peoples to
self-determination, within limits, or the first applicant’s repeated calls to
violence before he was arrested) have gone unanswered. In my opinion, that was
a second methodological error, which led to a series of further errors.
II. Presentation
of the facts
In
such a complex and “sensitive” case as this the detailed and objective
presentation of the circumstances of the case plays a crucial role,
since it determines how the case is to be prejudged, in the positive sense of
that term. In my view the general context of the case is presented summarily in
a way that distorts the facts considerably. It is the point of view imposed by
the applicants, for purposes that can be readily understood, which dominates. I
can only single out a few facts, and the way they have been interpreted, which
give false images of the true position.
The
crucial difficulty in establishing the general context of the case is
identification of the origins and main problems of the Moldovan-Transdniestrian
conflict. In fairly complicated and tricky cases such as Gorzelik v. Poland
(no. 44158/98, judgment of 17 February 2004) and Assanidze v. Georgia ([GC]
no. 71503/01, ECHR 2004-...), the Grand Chamber went back as far as the 14th
century in order to analyse the Silesian problem (see § 13 of the Gorzelik
judgment) and even the 11th century to shed light on the status of Ajaria
within Georgia (see paragraphs 100-107 of the Assanidze judgment). In
the present case what is left unsaid is more eloquent than what is said: a
snapshot of the removal of part of Bessarabia from Romania on 28 June 1940
as a result of the Molotov-Ribbentrop pact and the transfer from Ukraine of “a
strip of land on the left bank of the Dniester” in order to form Soviet
Moldavia gives the impression that the history of this multi-ethnic region
begins there (paragraph 28) – all of this being in the form of a reference (and
a very selective one, it has to be said) to an OSCE document. But the document
cited, like any other historical overview, gives a more complete idea of the
history of the region, which I recapitulate briefly below.
The
Principality of Moldavia, which was created in 1360 after being detached from
As
regards language and script, I do not wish to speculate on a very delicate
problem and regret that the Court gives a rather simplistic account of the
subject (paragraph 28 of the judgment), and that brings me to two quotations.
“The first known text in Romanian dates from 1521: it is a letter written by
the boyar Neascu to the mayor of
I
have added these historical digressions in order to reiterate the Court’s
position as expressed in the following dictum: “The Court considers that it
should as far as possible refrain from expressing a view on purely historical
questions, which it has no jurisdiction to adjudicate; however, it can accept
certain historical facts which are a matter of common knowledge and base its
reasoning on them” (see Zdanoka v. Latvia, judgment of 17 June 2004,
§ 77; see also Marais v. France, Commission decision of 24 June
1996, DR 86, p. 184, and Garaudy v. France (dec.), no.
65831/01, ECHR 2003-IX). But it turns out that the “historical facts” are
considerably distorted in our judgment, and as a result, to my great regret,
some of the reasoning is too.
Paragraphs
30 to 41 mention in no particular order the build-up to and development of the
Moldovan-Transdniestrian conflict, stressing the military aspects, as if the
major problem was the Fourteenth Army and the equipment of DOSAAF (which,
incidentally, was not a State body under the legislation in force). As a
national judge I wish to point out that the break-up of the USSR in 1988-1991
affected not only the 15 Soviet Republics which proclaimed their sovereignty
one after another (often referred to as the “parade of sovereignties”), but
also territories within certain multinational republics such as Nagorno
Karabakh, Abkhazia, Chechnya and so on.
It
is in that situation, in my opinion, that the Court should have sought the
roots of the conflict, which had direct repercussions on the fate of the four
applicants, rather than just in the declaration of
Legally
speaking, the declarations mentioned did not mean at that tumultuous time a
declaration of separation (as evidenced by the presence of the word “Moldavian”
in the title of the “MRT”), but a declaration of the desire to obtain greater
autonomy, including the right to a referendum on continued allegiance to the
State entity in the event of that entity proclaiming its union with a foreign
State, a prospect which was perceived as a real danger. “The emergence in 1990
of the first autonomist movements, followed in August 1991 by the proclamation
of independence, encouraged the adoption between
I
would add to the above analysis that in February 1992 the 2nd Congress of the
Moldovan Popular Front proclaimed
I
further regret that the Court did not take into consideration the fact that the
events of 1992 (“pacification” operation by the central authorities, armed
resistance by the rebels, transitional period just after the break-up of the
USSR, etc.) constituted in reality a case of force majeure in which all
the parties involved directly or indirectly in the conflict, including the
Fourteenth Army, took part.
I
am also tempted to give my more finely shaded version of the armed conflict in
1991-1992, as I think that the really abnormal size of this part of the
judgement (paragraphs 42 to 110), the sole aim of which is manifestly to
demonstrate Russia’s participation in the conflict and its military support to
the separatists, is the result of the methodological error mentioned above.
Even in the inter-state case of Cyprus v. Turkey the Court was much more
“economical” with this type of analysis, concentrating on the legal problems.
However,
although I do not wish to load down the text, I cannot ignore the “Cossack
question”. The judgment repeats an assertion made by the applicants that “in
1988 there [were] no Cossacks in Moldovan territory” (paragraph 60). I
would just like to point out that as early as 1571-1574 the Ukrainian Cossacks
took part in a war of liberation to free the Moldavians from Ottoman domination
and that free Cossacks had been living in Moldavia, Podolia and Zaporozhia for
centuries (see among other sources Longworth Ph., The Cossacks,
London, 1969). The Cossacks were victims of Stalinist terror but were
rehabilitated by the Russian Parliament’s decree of
There
are quite a few of these details in the text, including “undated” statements by
the Russian Vice-President (§ 137 of the judgment), an “undated” television
appearance by the Russian President (paragraph 138), a television interview
broadcast “on an unspecified date” (paragraph 145), and so on, notwithstanding
the position stated by the Court in the following terms in paragraph 26: “In
assessing both written and oral evidence the Court has hitherto generally
applied ‘beyond a reasonable doubt’ as the standard of proof required”. I am
astonished that, contrary to the clarifying information supplied to the Court,
paragraph 141 of the judgment reproduces (“takes as established”!) false
information to the effect that
It
is also a pity that in setting out the general background to the case the Court
has not always followed the principle it established itself in the Ireland
v. the United Kingdom case as follows: “In the cases referred to it, the
Court examines all the material before it, whether originating from the
Commission, the Parties or other sources, and, if necessary, obtains material proprio
motu (Ireland v. the United Kingdom, judgment of 18 January
1978, Series A no. 25, p. 64, § 160).
For
example, I regret that the Court has carefully avoided making any mention in
its judgment of the activities of the “Bujor” group and the applicants before
their arrest (except in paragraph 216, referring to the judgment of
III. Analysis of
the concepts of “jurisdiction” and “responsibility”
But
I regret even more deeply the fact that an opportunity has been missed to apply
to a situation not hitherto considered a finer analysis of the concepts of
“jurisdiction” and “responsibility”. Not claiming to be entitled to the last
word as custodian of the truth, I would nevertheless like to explain how I see
the problem.
My
initial position, which I expressed in the vote on admissibility on 4 July
2001 (and which I still hold), was that the Court should declare the
application inadmissible ratione loci and ratione personae as
regards Russia, while recognising Moldova’s jurisdiction over Transdniestria
but at the same time noting that it did not have de facto control over
the region, at least at the time when the applicants were arrested.
The
Court could have gone on from such findings to reach the finding of a “legal
vacuum” or “lawless area” to which the Convention provisions are inapplicable de
facto. That idea is neither absurd nor new. The “motion for a
recommendation” entitled “Lawless areas within the
“The
Assembly feels compelled to admit, however, that there are a number of areas
within the territory of certain member states where the European Convention on
Human Rights and other human-rights protection instruments do not apply in
practice.
This
has become clear firstly from the case-law of the
In
addition, ‘lawless’ areas have developed in separatist regions such as
In
a sense, the territorial reservation made by
Nevertheless,
I consider that the preponderance of the territorial principle where
“jurisdiction” within the meaning of Article 1 of the Convention is concerned
applies fully to Moldova, its responsibility and its obligations towards the
applicants, even if these are limited de facto (see paragraph 313 of the
judgment). In any case, Transdniestria is not a no man’s land or terra nullius
in international-law terms: the international community continues to regard
Transdniestria as an integral part of
The
problem of “extraterritorial” jurisdiction is much more complex. I firmly
believe that the Court should follow the traditions of the “case-law of
concepts”, in other words start from the idea that the essential concepts of
contemporary positive law have been established by generations of jurists and
should not be called into question except in exceptional cases. That was the
Court’s unanimous position in the Bankovic case: “The Court is of the
view, therefore, that Article 1 of the Convention must be considered to reflect
this ordinary and essentially territorial notion of jurisdiction, other bases
of jurisdiction being exceptional and requiring special justification in the
particular circumstances of each case” (Bankovic and Others v. Belgium
and 16 other Contracting States (dec.), no. 52207/99, paragraph 61,
ECHR 2001-XII). The Court went on to say that it needed to be “satisfied that
... exceptional circumstances exist in the present case which could amount to
the extraterritorial exercise of jurisdiction by a
What
exceptional circumstances could justify such a conclusion in the present case?
The
Court, in my humble opinion, has chosen the easy way out by applying in its
judgment criteria laid down in another exceptional case, the
difficult-to-ignore Loizidou case, and drawing from that precedent the
following, too vague, conclusion: “The Court has accepted that in exceptional
circumstances the acts of Contracting States performed outside their territory
or which produce effects there may amount to exercise by them of their
jurisdiction within the meaning of Article 1 of the Convention” (§ 314 of the
present judgment). The first criterion for identifying such “acts” to be found
in the Loizidou judgment is the occupation through targeted military action
of the territory of the other State. But that was not the case here, where the
Soviet military forces had been stationed in the region for decades.
Even
supposing that there was a “military action” such as there was in Cyprus,
Judges Gölcüklü and Pettiti were absolutely right in seeking to separate
“responsibility” from “jurisdiction”: “While the responsibility of a
Contracting Party may be engaged as a consequence of military action outside its
territory, this does not imply exercise of its jurisdiction” (Loizidou (Preliminary
Objections) judgment, Series A no. 310, p. 35). The two concepts are to an
extent autonomous in relation to each other, though it might be objected that
the distinction is academic.
Why
has the Court neglected this very important difference of meaning in the
present case, and not filled in a gap in its case-law, given the lack of a
valid criterion applicable to extraterritorial jurisdiction? In my view it was
in order to reach more direct conclusions via the concept of responsibility
(see paragraphs 314 to 317 of the judgment). It is jurisdiction (territorial or
extraterritorial) which is a primary concept, responsibility being derived from
jurisdiction rather than the contrary. The Court has indirectly confirmed this
subordination by holding that
Even
if it is accepted that the question is whether responsibility attaches to a
respondent foreign State, it would be necessary to prove that the respondent
State (a) continues to exercise its responsibility, the latter having
been engaged through a subordinate local administration; and (b) continues to
control the whole of the territory in question through a large number of troops
engaged in active duties and exercising “effective overall control over that
part of the island” , as noted in the preliminary objections in the Loizidou
case. These two aspects were discussed in particular in paragraph 70
of the admissibility decision in the Bankovic case, in which the Court
emphasised this territorial aspect throughout the decision before concluding:
“The Court is not persuaded that there was any jurisdictional link between the
persons who were victims of the act complained of and the respondent States” (Bankovic,
cited above, paragraph 82).
In
determining whether the Russian Federation was responsible for the acts
complained of, the Court, referring to the Cyprus v. Turkey judgment,
uses the notion of “overall control over an area outside its national
territory” (paragraph 316). I refer in that connection to the Court’s
assessment in the Loizidou case: “
As
regards subordination of the local administrative authorities to the Russian
authorities, the mere fact that those authorities have frequently prevented
evacuation of the military equipment is revealing. After releasing one of the
applicants under international pressure the authorities of the “MRT” continue
to hold the others in spite of the obvious interest of their presumed
“guardian” in disposing of the embarrassing problem – if this is an example of
an administration “subject to the authority of a foreign power”, it is a rather
strange one.
The
other argument pleading in favour of the
For
that reason alone, unlike the position regarding the proclamation of the TRNC,
The
“evidence” of alleged economic support (paragraphs 156 to 160 of the judgment)
does not withstand verification. I compare below the findings in the judgment
with the observations of an NGO, the British Helsinki Human Rights Group
(BHHRG), which has analysed the situation in the region.
Exports
of gas “on favourable financial terms” (paragraph 156). According to the
BHHRG, the cost of 1,000 cubic metres of gas supplied by
“Transdniestria receives electricity directly from the
“The
Russian firm ‘ITERRA’ bought the Râbnita engineering works”. (paragraph 160). In August 2003 alone, a single
It
is the American company Lucent Technologies which controls all
telecommunications, it is in
Next
argument: supplying arms to the separatists. The applicants assert (without giving
any concrete evidence) that the Fourteenth Army supplied weapons to the
separatists, a fact which, in their opinion, engages even more the
responsibility of the
In
the final analysis, I have not found in the factual material concerning the
military, political and economic aspects any valid evidence capable of
establishing a limited or continuing intervention by Russia in favour of
Transdniestria, or proof of the “MRT”‘s military, political or economic
dependence on Russia.
In
my heart of hearts, I regret that there is no evidence of what is now called
“humanitarian intervention”, a more noble form of the military interventions of
the past. I wish to be absolutely honest about
I
therefore propose to answer an obvious question: as a subject of international
law, was
The
other rule of international law confirmed by our case-law is that a State’s
extraterritorial responsibility is engaged to the extent that its agents
exercise their authority over supposed victims or their property (Cyprus v.
Turkey, Commission decision, DR 2, p. 125, at p. 137). Did that really
apply to the four applicants outside the brief period of their arrest in 1992?
Apart
from the factual aspects, account has to be taken of the legal aspect of the
question of a State’s international responsibility.
I
refer to a document of capital importance: Resolution 56/83 adopted on
That
rule quite obviously confirms the ratione temporis rule in our own
case-law. In other words, before establishing the continuing nature of a
violation (in our case, the arrest and pre-trial detention of the applicants),
it is advisable to ascertain whether the alleged violation does not fall
outside the Court’s jurisdiction ratione temporis.
On
the subject of the ratione temporis rule, one of the pillars of the
European Court’s case-law, I very much fear that it will be shattered by the
construction put upon the term “jurisdiction” in the present judgment in the
following passage: “The Court considers that on account of the above events the
applicants came within the jurisdiction of the Russian Federation within the
meaning of Article 1 of the Convention, although at the time when they occurred
the Convention was not in force with regard to the Russian Federation”
(paragraph 384).
Indeed,
as neither
On
the other hand, a different provision of the work of the ILC is to my mind
entirely applicable to consideration of alleged Russian responsibility, as it
confirms the force majeure hypothesis:
“The
wrongfulness of an act of a State not in conformity with an international
obligation of that State is precluded if the act is due to force majeure, that is
the occurrence of an irresistible force or of an unforeseen event, beyond the
control of the State, making it materially impossible in the circumstances to
perform the obligation.” (Article 23 § 1).
My
question is: did the very height of a civil war constitute a situation of force
majeure within the meaning of Article 23 as cited above, given that the
respondent State, the
In
my opinion, the Court cannot derogate from the rule confirmed by the
Commission’s opinion in the case of Ribitsch v. Austria: in determining
whether the responsibility of a respondent State is engaged, the Court applies
the provisions of the Convention on the basis of the objectives of the
Convention and in the light of the principles of international law. The
Commission went on to say: “The responsibility of a State under the Convention,
arising for acts of all its organs, agents and servants, does not necessarily
require any ‘guilt’ on behalf of the State, either in a moral, legal or
political meaning” (Ribitsch v. Austria, Commission’s opinion,
4 July 1994, Series A no. 336, paragraph 110).
IV. Violation of
Article 34 of the Convention
As
regards the finding of a violation of Article 34 by
Confidential
consultations are a normal practice in international relations – indeed, a
practice endorsed by the Russo-Moldovan treaty of 19 November 2001,
Article 3 § 1 of which provides: “Being firmly committed to ensuring peace and
security, the High Contracting Parties will hold regular consultations on major
international problems and on questions of bilateral relations. Such
consultations and exchanges of views will embrace ... questions of interaction
within the OSCE, the Council of Europe and other European structures”. In
addition, by producing a leaked diplomatic note the applicants were breaking
the rule against abuse of the right of petition (Article 35 § 3 of the
Convention) and thus making themselves liable to the known consequences in the
Court’s practice. Unfortunately, they suffered no such fate. As
the immortal La Fontaine put it: “Someone told me. I must have my
revenge.”
V. On application
of Article 41 of the Convention
As
regards the sums awarded to the applicants, especially the first applicant, who
has been free since 2001, the Court in my opinion has gone beyond the previous
limits for sums awarded in the event of the finding of violations of Articles 3
and 5 of the Convention, even in the most horrifying cases. Having already
crossed the established threshold in the recent Assanidze v. Georgia
judgment (cited above), in which it generously awarded the applicant 150,000
euros “in respect of all the damage sustained”, the Court has now gone further
in the present case, perhaps on account of the length of the applicants’
detention. Be that as it may, what I object to is that while holding that there
had been no violation of Article 1 of Protocol No. 1 the Court thought it
necessary to mention the subject of pecuniary and non-pecuniary damage, observing
in paragraph 510 of the judgment: “The Court does not consider the alleged
pecuniary damage to have been substantiated, but it does not find it
unreasonable to suppose that the applicants suffered a loss of income and
certainly incurred costs which were directly due to the violations found.” That
argument is unconvincing in my opinion and even dangerous for the future
case-law, as it imprudently opens Pandora’s box.
VI. Is the
judgment enforceable
Lastly,
I realise the objective impossibility for the second respondent State of
enforcing the Court’s judgment to the letter, going over the head of sovereign
Case of Ilascu, Ivantoc, Lesco and Petrov-Popa v.
(Application no. 48787/99)
Judgment (Annex)
CASE OF ILASCU AND OTHERS v.
(Application no. 48787/99)
JUDGMENT
ANNEX
SUMMARY OF STATEMENTS BY THE WITNESSES
BEFORE THE COURT’S DELEGATES
This
judgment is final but it may be subject to editorial revision.
Page
1. Ilie
ILASCU
495. Until
his arrest in June 1992 the applicant was living in
496. On
the morning of
The
applicant’s family, who were in
497. The
applicant was taken to the building of the Ministry of Security in
498. Some
time later the applicant was taken to a room where he was interrogated by Vadim
Shevtsov, “Minister of Security of the MRT” and three other colonels who were
dressed in Fourteenth Army uniforms. On the third day interrogations started to
take place during the night, one interrogation led by Vladimir Gorbov, another
one by the three colonels. The applicant heard from the guards that the three
colonels were from the secret services of the Fourteenth Army
counter-intelligence division. During the interrogation led by Mr Gorbov
relating to his political activity the applicant was accused of committing
terrorist acts in Slobozia district. During the second interrogation a bargain
was proposed to him, under the terms of which he, as leader of the Popular
Front, would co-operate and say that he had been trained in Romania by special
troops, somewhere near Brasov, that he had been armed by Romanians and sent to
Transdniestria to carry out terrorist acts against the Russian civil population
in Transdniestria. The applicant denied all these accusations and refused to
accept such a bargain. Consequently, he was repeatedly beaten and subjected to
psychological torture.
499. During
his first week of detention he had had no food at all. On many occasions during
the initial investigation he was not allowed to sleep. The guards would come
into the cell at
500. After
five or six days, maybe more, the applicant was blindfolded and was taken to
another place. When food was brought to him he saw soldiers of Fourteenth Army
and was told that he was in the military garrison of the Fourteenth Army. The
applicant realised the next day that he knew the building, as he had been there
before, when he was arrested in 1989 also by the Fourteenth Army, after
founding the Popular Front.
501. At
the time when he was detained at the military garrison of the Fourteenth Army
in 1992, the commander was Colonel Mikhail Bergman, whom the applicant
remembers as having been the only one who treated him humanely. Mr Bergman
never took part in the interrogations.
During
his detention there, the applicant saw only Mr Godiac and Mr Ivantoc. One
day, the door of his cell opened and Ivantoc was asked by Gorbov, Bergman and
the other investigators to identify him, which he did. The applicant did not
know Mr Ivantoc at that time, but Mr Ivantoc certainly knew him as he was the
leader of the Popular Front.
502. During
his detention at the military garrison of the Fourteenth Army, the applicant
was taken out to be interrogated in various offices probably on the second
floor, certainly on a floor above the cells. He was not very badly ill-treated,
as the offices had walls painted in white and there was a risk of traces being
left. However, interrogations also took place during the night, in his own cell, whose walls were painted in black. There, he
would be very badly beaten. During one of the beatings some of his teeth were
broken. As a result of the beatings the applicant was left with a disabled
kidney.
503. The
applicant was also subjected to psychological torture. He was told that
Cossacks had come to his flat and kidnapped his wife and two daughters, and
then raped them, that his wife and one of the daughters had been found and
taken to the psychiatric hospital, but that the second daughter had not been
found. He was then asked to give in and sign a confession. Three days later Mr.
Gorbov came back and told him that his second daughter had been found dead and
urged the applicant to sign so that he could go home and give his daughter a
Christian burial. The applicant lost control of himself
and hit Gorbov. As a result, he was seriously ill-treated.
504. During
his detention in the charge of the Fourteenth Army, the applicant was subjected
to four mock executions.
505. In
all, the applicant was detained at the military garrison of the Fourteenth Army
for two months. On 23 August Mr Bergman introduced the applicant to the new
commander of the Fourteenth Army, Alexandr Lebed. After a couple of minutes of
discussions between the applicant and Mr Lebed the new commander of the
Fourteenth Army gave Mr Bergman two hours to remove the applicants from there.
On the same day Mr Bergman, accompanied by five or six officers and four
soldiers of the Fourteenth Army with automatic weapons and a dog called Ceank,
took the applicant in a truck to the Tiraspol City Police headquarters. The
applicant was left in a corridor. Mr Bergman told Mr Shevtsov in an angry tone
that he did not want to keep the applicants in the territory of the Fourteenth
Army any more and went away.
506. The
applicant was detained in the basement of the Tiraspol City Police headquarters
for about half a year, and was then transferred to Tiraspol Prison no. 2 until
his conviction. During the investigation he was with other detainees in a cell.
507. A
week after his conviction, on
There
he was subjected to very harsh treatment. He was beaten many times. He was
given bread and tea to eat, with cornmeal at lunch. He was also frequently put
in a punishment cell. The applicant weighed 95 kilos when arrested and only 57
kilos six months later. He was not allowed to see his family on a regular basis
or to receive parcels. Food parcels sent to the applicant were sometimes
destroyed. Every visit had to be approved. Sometimes approvals were not
granted, sometimes they were granted but when his wife reached the gates of the
prison she was not allowed to see him. He was not allowed to write, so that he
had to use other means to send messages out of prison. As he wanted his mother
to come and visit him, he was told that he should write a special request to Mr
Smirnov. The applicant refused, because he did not recognise the “MRT”, and so
he was not allowed to see his mother, who died while he was in prison.
508. After
the applicant had cast his vote in the Moldovan Parliament for the formation of
the Sturza Government, there was an immediate effect on his visits: from April
1999 until January 2000 he was not allowed to see his family. From then on he
was punished constantly on all sorts of pretexts – for example, his radio was
taken away.
509. There
was no heating in winter because there was no technical possibility for this.
The temperature went down to -10o Celsius. The applicant did not
have a shower for six months and had to wash in cold water. There was no
toilet, no decent conditions.
He
had no access to information. He was alone. No one else was present when he
exercised in the evening. He ate on his own in the cell. He was even forbidden
to talk to the guards. He could only speak to the secret service people and to
Mr Golovachev. He had no access to daylight or even to an electric lamp.
510. When
the applicant asked for treatment from the prison doctor he was told that there
were no medicines. The only medicines were brought by the applicant’s wife. The
doctors who examined the applicant came from Chisinau.
511. The
applicant never complained to the
512. In
July 1998, after the applicant had made several attempts to escape, he was
transferred to Tiraspol Prison no. 2, which was better guarded.
The
treatment in the Tiraspol Prison was sometimes better, sometimes worse than in
the Hlinaia Prison.
513. There
was a toilet in the cell, and cold water. Not all the prison guards were
hostile to the applicant, but the people from the security brigade under Mr
Shevtsov ill-treated him. The Prison Governor and the guards were relatively
correct with him. Colonel Golovachev, the Governor of the Prison, said, “I
cannot stop the secret services ill-treating you.”
514. In
April 1999 the applicant lodged his application with the European Court of
Human Rights. Initially, when the
During
the same period there was also an incident in which he was ill-treated by Mr
Gusarov and some people from the secret services. He asked why he was subjected
to such rigorous searches, but was dragged out of his cell and hit with the
butt of a gun. One of the secret service men stuck a gun in his mouth, broke
his teeth, and threatened him that there would be more of the same if he
pursued his application with the European Court. Mr Ivantoc was subjected
to the same treatment by Mr Gusarov.
515. The
secret services came from time to time to ask him to withdraw the application.
Then, on the morning of
He
was put into a car with Mr Shevtsov. When they came to territory controlled by
Chisinau the applicant was handcuffed to two soldiers. He was taken to the
presidential palace in Chisinau, and then to the Ministry of Security. Mr
Shevtsov took out a paper declaring that the detainee Ilascu had been transferred
to the authorities of
516. As
regards the so-called pardon, Mr Balala came to see the applicant two days
before his release in order to speak of it. However, the applicant refused the
offer of a pardon because the Transdniestrians wanted an acknowledgement of
guilt on his part.
517. After
his release the applicant spoke to the secret services of
518. The
applicant was under the impression that the Russians were behind his release,
as they had said that they would ask the Transdniestrians to release him. The
Romanian President Mr Iliescu even called Mr Putin. The applicant claims that
Shevtsov is a Russian citizen, a representative of the Russian secret service.
519. As
regards the attitude of the Moldovan authorities concerning his release, the
applicant claims that thirty-three persons arrested by the Transdniestrians
were exchanged for Cossacks arrested by
520. The
authorities of the
The
Fourteenth Army participated in the aggression against Moldova, it supplied
arms to the Transdniestrian forces – machine guns, tanks, armoured vehicles,
guided rocket systems. There is only one armed headquarters force in
Transdniestria, and that is the headquarters of the Fourteenth Army. Shots were
fired from there towards the battlefields. General Lebed fought against
The
Supreme Soviet of Transdniestria had taken the whole Fourteenth Army under its
authority. General Lebed was even elected as a Member of the Transdniestrian
Parliament. Russian staff from the Fourteenth Army were
leading the military operations and members of the Transdniestrian armed forces
were involved only symbolically. When General Iakovlev was arrested before the
conflict and taken to Chisinau, it was on suspicion of having armed units in
Transdniestria with weapons from the Fourteenth Army. The applicant was told by
Mr. Lesco, who worked in a factory, that arms had been brought to the factory
by the Fourteenth Army to arm the workers there.
All
along the
521. As
regards the Moldovan authorities, it is true that the Transdniestrian
authorities were hostile to them. According to the applicant, the
Transdniestrians are Fascists, imperialists. The applicant was prepared to
withdraw his application to the European Court of Human Rights against
522. The
applicant complains that one of the witnesses that he wished to call, Mrs. Olga
Capatîna, was beaten up and had to be hospitalised.
523. The
Moldovan authorities did allow the applicant to act as a Member of Parliament
although he had been sentenced and was in prison. However, the secret services
of the Government that came to power after 1992 abandoned the applicant and his
colleagues. It did nothing to secure their release. When the applicant was
released Mr Valeriu Pasat said, jokingly, “Some politicians are now trying to
emigrate.” President Snegur said that the applicant was too much in favour of
integration with
2. Tatiana
LESCO
524. In
June 1992 she was living in
525. As
to the arrest, the neighbours told her that it had occurred at
When
the witness saw her husband in the militia building, Starojouk was also there,
in a separate office. The witness did not know if Ilascu was there as well. She
did not know Ilascu personally. When she saw her husband for the first time he
had done nothing but eat, wolfing down half a chicken, and he had drunk a lot
of water. He said that they had not given him anything to eat or drink.
526. The
witness had a second meeting with him after a month or so. In the meantime she
had not been allowed to see him or to give him any food. She had taken his
dirty clothes away with her; they were full of vermin. His shirt was stained in
the area of the kidneys. He had obviously been beaten up. The next meeting,
after a month or so, was in the same building, in the basement again. And then
there was another meeting after a further two months in Starojouk’s office.
527. The
witness’s husband told her that he had spent about a month at the headquarters
of the Russian Fourteenth Army, at the Commandatura. He said it had been
horrible. Three soldiers had kicked him in the chest and groin; he had passed
blood in his urine; one of the soldiers had made a lewd suggestion. He had been
taken to the lavatory once a day, allowed only 45 seconds to relieve
himself, and then a dog was sent in and he was pushed back to his cell. He was
not allowed to wash there was no water to wash with. There was no food or
water. He did not know the names of the people who had ill-treated him. They
had not introduced themselves. They were wearing the military uniform of the
Russian Special Troops. They were heavily muscled men from the Fourteenth Army.
The
witness’s husband told her that when he was in the Commandatura of the
Fourteenth Army it was the militia men who had the keys to the cell. The attack
on him had occurred when the guards got drunk with three soldiers. The guards
gave the soldiers the keys for some reason. It was then that the soldiers broke
into his cell, assaulted him and tried to rape him.
528. At
the Commandatura he saw Ilie Ilascu being subjected to what turned out
to be a mock execution. He saw Ilie Ilascu being led out, blindfolded; he heard
the guns firing and then saw traces of bullets on the wall. But he then learnt
that Ilie Ilascu was alive. The witness’s husband mentioned to her two
names: Gorbov and Antiufeev. He said that, after the Commandatura,
they came to interrogate him every night back at the militia centre. Colonel
Bergman was the commandant at the Commandatura. They saw one another at
the Commandatura.
529. After
his conviction in 1993 the witness’s husband was taken to Tiraspol Prison No.
2. That was the only prison where he had been detained. The
first time that the witness was able to visit her husband there was after three
months. She was allowed to leave food for him. After the trial she had
regular meetings with him once a month, as laid down in the Criminal Code,
through a glass screen. Letters were opened, but they did not correspond too
often. Twice a year a long meeting was granted. Parcels were not always
allowed. He was kept in an individual cell. There was no beating up, but he was
subjected to moral pressure. The witness herself was called a Romanian
prostitute. The guards would ask her, “Why did you sell out to
Her
husband has never said anything much about medical treatment in prison. He had
a pancreatic crisis when the witness was there once. He was foaming at the
mouth. She had to wait all day for any kind of treatment to arrive. In the end
a doctor came and said that he needed an operation, otherwise he would die. He
was made to walk with handcuffs and manacles on, despite his condition. The
doctor gave the witness a list of medicines to get. The operation had been a
success. He was manacled to the bed in hospital, despite being on an
intravenous drip. The witness was allowed to visit him in hospital once a day
but there were four armed guards present all the time. His stay in hospital had
lasted two weeks.
530. The
witness claims that her husband did not receive any orders or instructions from
the Moldovan authorities before he was arrested in 1992. She was with him all
the time. He was a member of the Popular Front. After her husband’s arrest they
had to leave their residence. She went to plead with the factory-owner, but he
said, “You must leave the flat, you are a terrorist’s
wife.” After ten days a woman with a child came to occupy the flat. The witness
was chased away and went to Chisinau. Six months after the event she was given
a hotel room by the Popular Front. Whenever she went to
3. Eudochia
IVANTOC
531. The
witness was living in
532. Her
husband was arrested there when he was on his own. He told her that many armed
people had entered the apartment, smashed their belongings, and beaten him
unconscious. The persons who burst in were wearing black uniforms. Her husband
was taken to the basement of the militia building in
The
witness met him in the office of the investigating offices, in the presence of
three or four other people. It was a short meeting and it had been impossible
for them to communicate properly. It was many weeks before the witness could
send him a food parcel.
533. From
the militia building the prisoners were transferred to the Fourteenth Army Commandatura
and then back to the militia building. Before their trial they were in either
one or the other of these places. The witness had one short meeting with her
husband during the period when he was being held at the Commandatura.
She did not know that he was being held there. When she was in the militia
building she saw him being brought into the building from a
534. The
conditions in the Commandatura were terrible. It was painful for the
applicant to talk about it. He was kept alone in a cell; at
535. When
he was held in police custody in
536. Following
the trial in 1993, the witness next saw her husband after a month as soon as
she received the permission to meet him. Whenever events got worse, that
affected visits. She was not able to visit her husband freely; she had to write
to Mr Shevtsov to get approval. For a long time she was not allowed to give him
newspapers in Romanian, but only in Russian. She could not correspond with him.
He was kept in solitary confinement, in the toughest wing of the prison. It was
very damp; there was a leaking roof and no daylight. There was permanent
psychological pressure on him. In 1999 he was the victim of a physical attack
when masked persons entered his cell, hit him with sticks and beat him up.
Everything in his cell was broken and his personal effects were taken away.
This is the time when he went on hunger strike. The 1999 incident occurred when
the applicant’s husband lodged his application with the European Court of Human
Rights, or even before – when the Sturza Government was elected. He was not
allowed to stay quietly in his cell, as there was a period of time when
everyday someone tried to exert psychological pressure on him.
537. The
witness complained to various Moldovan authorities. She did not approach the
Ministry of Justice directly. Together with the other wives, she approached the
President of the Republic and the Ministry dealing with the Transdniestria
issues. In reply, they were assured that negotiations were under way and things
would be back to normal soon. This was so even when they applied to the
Prosecutor General. But nothing ever came of these representations. The
applicants’ wives also applied to the Ombudsman, but they were told that he
could not go deeper into the case because he did not have sufficient power. The
other side was not subject to his authority, and everything depended on higher
authorities – in other words, the President’s Office and the State authorities.
The
OSCE mission visited her husband in prison after these representations in 1999.
538. There
was no proper access to medical assistance in the prison. The witness insisted
that a doctor from Chisinau go to see him in the prison in
539. On
540. Although
Andrei Ivantoc needs a special diet, he does not receive what he needs. He
cooks food for himself, from the parcels delivered to him by his family. The
prison authorities in
541. The
witness is not aware of her husband ever having received any instructions from
the
4. Raisa
PETROV-POPA
542. In
June 1992 the witness was living in
543. The
witness’s brother was detained in Tiraspol Prison until last year. He did not
speak about his treatment in prison. There were always persons present who
prevented him during the visits from speaking about matters other than family
matters. He sometimes said that he had been taken out of his cell at night or
verbally abused. The applicant never spoke about any medical treatment.
544. The
witness had not approached the Moldovan authorities on behalf of her brother in
order to seek his release; his wife had, but the witness did not know what authorities
she had approached. Nor did she know whether the Moldovan authorities had tried
to do anything following her brother’s arrest and conviction.
545. She
brought the application on behalf of her brother. Before the trial she did not
know Ilascu, Lesco or Ivantoc.
5. Stefan
URÎTU
546. The
witness was formerly a permanent resident of
547. By
June 1992 he had been living in
548. He
was arrested on
549. The
people arresting the witness were not in uniform. When he was arrested, there
were some vehicles from the Russian Army surrounding his house. He was taken to
the militia building in
550. The
witness was held in the militia building from 2 June until
551. The
witness talked to Lesco, who said that the conditions in the militia building were
quite good compared to those at the Fourteenth Army. The other prisoner who was
sharing the witness’s cell also told him that his colleagues had been taken to
the Fourteenth Army because the security was much stricter there. All this was
done when the fighting was going on in Bender.
552. He
was told by those who were detained at the Commandatura that their beds
were raised against the wall at 5 or
553. The
witness received a letter from a potential witness at the trial saying that he
had been warned that if he kept to his testimony that Ilascu had been beaten,
he would lose his job. He is now in detention. A person who gave evidence at
the 1993 trial in
554. During
his detention in the militia building, the witness was interrogated by Shevtsov, or Antiufeev as he now calls himself. The witness
was Chairman of the Committee for Human Rights created in 1990 and had access
to information concerning the situation in Transdniestria. Many people came to
see them for information. The constitutional Moldovan authorities avoided
responsibility for what the separatists were doing. Shevtsov, whom the witness
did not know at the time, was a better-trained professional than any Moldovan
would have been. The witness told him that he gave the impression of being from
555. The
witness was interrogated only once in the presence of a lawyer. Another time he
was interrogated at night by Mr Gorbov and another. They ill-treated him and
tried to get him to sign a document, but he refused.
556. The
witness was not tried. He was released after 82 days of detention. He does not
know why he was released, although he was subject to the same charges of
terrorism. During the applicants’ trial the witness sent a telegram to the
President of the so-called Supreme Court of Transdniestria, Mrs Ivanova, asking
to be heard by the court. He was refused. The answer given was that he was a
criminal who deserved to be in the cage with Ilascu, and he could not be heard
as a witness. Prosecutor Lukiç, whom the witness contacted, told him he could
not protect him a second time.
557. He
had been released on signing an undertaking that he would not leave
558. The
witness stated that Ivantoc’s house had been surrounded by military vehicles
and he had concluded that the Fourteenth Army and Colonel Bergman took part in
the arrest.
559. General
Iakovlev had previously been arrested by the Moldovan authorities for providing
arms to the separatists. The witness had seen the register, detailing how much
weaponry had been given and to whom. It was given to people in their homes so
that they could resist the constitutional forces of
560. General
Iakovlev was subsequently exchanged for 28 Moldovans. On another occasion, 23
Moldovan policemen were exchanged for 23 paramilitary soldiers. Groups of 25 to
35 people were regularly sent from Transdniestria to
561. After
his release, the witness had visited
562. The
witness considers that
563. Concerning
the Russian involvement in the events, the witness stated the following.
High-placed Russian personalities had visited
564. On
the day of the witness’s arrest, when he was taken to the security service, he
saw an important person coming out of the building. It was Makashov. He had
visited the separatist republic and said that with such weaponry they would not
be able to fight the Romanian fascists, that he was going to send them better
arms and that
565. The
Cossack troops who had taken part in the fighting were mobilised by the
566. In
1993 the separatist regime set up a parliament. General Lebed was elected to
the Supreme Soviet. General Lebed himself declared that he was the one who
guaranteed the independence of the
567. During
the war, the Transdniestrian side had tanks and armoured vehicles bearing the
emblem of the Russian army – the witness had seen that himself – in addition to
the Cossack troops. The witness went to Bender once. When he crossed the bridge
on foot he saw many tanks carrying the Russian three-coloured flag. On other
tanks the separatist flag was flying. He asked why Russian troops and
separatist troops were there and he was told that both had taken part in the
shooting. At a meeting held at the Ministry of Defence in Chisinau, where the
negotiations took place, the witness made a statement in front of the ministers
of foreign affairs present, including Mr Kozyrev and Mr Netkachiov, who was the
Commander of the Fourteenth Army at that time. The witness told them he would
lodge a protest because the Fourteenth Army was directly involved in the war.
The participants in the negotiations replied that they would leave for Bender
and try to gain evidence of that themselves.
568. After
his release the witness did all that he could to get the remaining six freed.
They represented a symbol for the Transdniestrian regime, to discourage others
from expressing political views. He was told by Prosecutor Irtenev that
569. The
witness did not know why he was arrested or why he was released. There was a
letter from the Moldovan Ministry of Education asking for his release, the
Ministry undertaking to ensure that the witness would be present for the
purposes of the investigation. The witness possessed much information about the
separatists, and for that reason he was not a convenient witness for the trial.
Alex Kokotkin, a journalist for a Russian newspaper, had tried, before his
arrest, to convince him of the benefits of collaborating with the separatist
regime. The witness had seen him later in the office of the investigators,
acting as if he was a boss. Kokotkin told him that additional Russian troops
had been brought in to secure Transdniestrian independence; they were called
peace-keeping troops. This journalist might have played a significant role in
obtaining the witness’s release.
570. The
witness also stated that he could name the persons who had gone to
6. Constantin
TÎBÎRNA
571. The
witness is the Director of the Surgical Clinic at the
572. He
was requested by the Ministry of Health of
573. When
he examined the applicants, Ilascu was in Hlinaia, the others were in Tiraspol
Prison. The prisoners made no complaints about the
574. He
saw Mr Ilascu himself only once. He looked like an ordinary prisoner, but he
did have a disorder of the digestive tract. However, his condition did not
necessitate any intervention by a surgeon; no surgery was necessary, and so he
was treated by a gastro-enterologist.
575. The
witness examined Mr Lesco when he was in hospital recovering from pancreatitis,
after he had undergone a surgical operation. He was invited to examine Mr Lesco
because he was recognised as an expert on this condition. Mr Lesco was
introduced to him by the doctor who had operated on him earlier. He had seen
the applicant in hospital, when he was suffering from acute pancreatitis. This
is a severe condition, with a mortality of 20 to 30%. He also saw him later,
when he was suffering from chronic pancreatitis, which often follows acute
pancreatitis. He could have acquired pancreatitis during his childhood,
although acute pancreatitis could also be the result of stressful conditions.
The witness and a team of doctors, led by Dr. S. Lesanu, examined the applicant
and recommended further treatment.
576. The
witness saw Mr Ivantoc in prison. He detected changes in his liver by means of
an ultrasound examination and liquid in the abdominal cavity, which is a sign
of high blood pressure.
577. The
witness made his notes on the applicants’ cases on sheets of paper provided by
the prison doctors. They kept these notes for their archives. The witness then
made his own report for his own personal purposes. He last went there over a
year ago.
578. There
is freedom of movement of doctors from
7. Nicolae
LESANU
579. The
witness is the chief doctor on curative issues at the
580. The
witness went to Transdniestria six times in all. The President and the
relatives of the applicants were worried about their medical state in prison.
The witness had to keep the President informed of their medical condition. He
usually took other doctors with him, for example, Professor Tîbîrna and a
gastro-enterologist.
581. The
applicants did not complain about ill-treatment.
582. The
medical notes made on the applicants were left behind with the prison
authorities there. The team of doctors insisted that the prison medical service
should follow their recommendations, which concerned the applicants’ medical
treatment, medication and diet.
583. Mr.
Ilascu said that he did not trust the prison authorities or the prison medical
service, as he was afraid of having drugs administered to him by the prison
authorities. He accepted medicine supplied by the family or by the doctors
coming from Chisinau.
584. The
examinations that the witness’s team had carried out in Transdniestria were
joint examinations with the doctors there. The applicants detained in Tiraspol
Prison were subject to a freer regime than in Hlinaia Prison. In Tiraspol
Prison there was a medical unit and only doctors were present during medical
examinations.
585. At
Hlinaia Prison the regime was stricter. There was always someone from the
prison service standing by, as well as the doctors.
586. The
witness and his team found no evidence either of physical ill-treatment or of
the administration of psychotropic drugs.
587. The
witness visited the applicants for the last time in 1997 or thereabouts. He
refused to go after that, despite a request from the Ministry of Justice,
because he no longer had the powers that he used to have when he was the
President’s adviser.
8. Andrei
IVANTOC
588. On
the morning of
589. He
was then taken to the Commandatura of the Fourteenth Army. There he was
interrogated by military people. Upstairs there were special elite troops and
Alpha troops. Colonel Bergman was the commander of the Fourteenth Army. The
applicant saw him personally, but Colonel Bergman did not interrogate him.
590. The
conditions at the Commandatura were inhuman. Detainees were beaten up
day and night by the marines and by Special Forces, who used batons and boots.
They would throw green gas capsules into the cells. The applicants were
detained in different cells. There were also other people detained there,
including Mr Godiac. The conditions of detention there were very bad. They were
taken to the toilet once every 24 hours and chased out by a dog if they did not
finish in the time allotted to them. At that point the applicant wanted to hang
himself.
Then
he was administered drugs. He was delirious; he imagined things. His
psychiatric problems resulted from his beatings.
The
guards at the Commandatura, like everything there, were under the
control of the Fourteenth Army. The special forces and
marines all had Russian insignia on their uniforms. It was the Russian special forces and marines who beat them up saying that they
were Romanian peasants. They had Russian emblems on their uniforms. The
applicant thought that they were Russian marines because they had the berets
and shirts of marines with Russian emblems on them.
The
worst ill-treatment he suffered was at the Commandatura. It was total
savagery.
591. From
the Commandatura of the Fourteenth Army he was taken to a psychiatric
hospital in
592. After
September 1992, when he and the others were transferred to the basement of the
pre-trial centre, they were also beaten up. They were taken out day and
night. This was done in a special room, an investigation room. The applicant
was beaten up until he lost consciousness, he was drugged, and his head was
banged against the wall, or squeezed between the door and the wall. That was
done by people from the Transdniestrian side.
593. After
the trial they were only occasionally beaten up. The applicants complained to
the OSCE. Mr Antiufeev was the head of all that. At one point a Ministerial
Commission came to investigate. The applicants were not examined by doctors. In
any event, the prison authorities isolated them until the bruises were gone.
The OSCE Commission came one month later, after the beatings, but there were
not many traces left by then.
594. The
worst period of ill-treatment was in 1992, when they came to the applicant’s
cell and to Ilascu’s. It was Antiufeev and Gusarov who were the prime movers.
595. Currently
the applicant is in solitary confinement: He sees no daylight, and only
exercises for two hours a day.
596. The
doctors in the prison service were little better than veterinary surgeons. The
prison doctor in the applicant’s prison was in fact a dentist by profession.
Professor Tîbîrna had visited the applicant. He had also been visited by other
doctors from
597.
In January 2003 he was in a room where prisoners are allowed long-term
meetings. He had never been examined by a doctor in his own cell. During the
examinations there was always someone from the prison administration there to
check and control.
598. Only
relatives are allowed for family visits. Sometimes parcels are allowed, but on
occasions there are problems with parcels. The applicants are not permitted to
write or receive letters in Romanian or to receive Romanian newspapers. Two
weeks before the hearings in February 2003, he had been seen by the Red Cross
and, before that, by doctors from the European Committee for the Prevention of
Torture.
599. The most recent visit he had had was two weeks before the
hearings in February 2003, when he was visited by a lady judge in connection
with the Torture Committee.
600. He
has no right to correspond with persons outside the prison, whether lawyers or
not.
601. In
May 1999, while he was in Tiraspol Prison no. 2, after he lodged his
application with the European Court of Human Rights, he was subjected to
ill-treatment there as well. Military forces came into his cell and beat him
up. These were military people under the command of Gusarov and Captain Matrovski
and people under Antiufeev/Shevtsov. He was told that if he did not withdraw
his application he would be eliminated. Afterwards he went on hunger strike and
wrote a complaint; and then a commission of investigation came.
602. The
only medical visits he had had were from doctors coming from Chisinau. The
prison doctor Lieutenant-Colonel Samsonov was a dentist. The applicant
claims that he has not received any services from the prison doctors.
603. His
cell and his belongings in it have been damaged. The first time this happened
was on
604. The
applicant considers that everything that has been done to him, and that is now
being done to him, has been done at Russian instigation.
605. Lieutenant-Colonel
Gorbov had been present at the arrest of Ilascu.
606. After
May 1998 the applicant did not see any Russian officials.
9. Alexandru
LESCO
607. At
the time of the events, in 1992, the applicant had been living in
608. On
1 or 2 July he was taken to the Commandatura building. He was taken
there in a car with the Russian emblem on the side and the Russian three-coloured
flag on it. The applicant was taken there twice on the same day. The first time
it was Delta people,
609. The
conditions were very harsh in the Commandatura. The food was good
because they ate from the soldiers’ rations. But sometimes there was no access
to a toilet for two or three days. They would then be taken out into the
corridor and to the toilet by a guard who had an Alsatian dog called Chan. They
were only given 45 seconds, which was not enough time, and then the dog was let
loose on them. This is why the applicants refused food, in order to get more
time to go to the toilet. The applicant had to relieve himself into plastic
bags because he was not sure whether the next day he would be taken to the
toilet. This went on for a whole month or so. At the weekends, when there were
few commanders present in the buildings, the guards would come into their cells
and assault them. They would say that they were acting against
610. At
the Commandatura he saw through a hole in the window of his cell Ilascu
being taken out of the building. The guards stopped him and said, “You’re
next.” He saw that Ilascu refused to be blindfolded and he was put up against a
wall. Ilascu said that he had been subjected to mock executions four times. The
applicant saw it only once.
611. He
was only once beaten with batons, but he was scared all the time. At the
weekend there were people who entered his cell. They had Russian insignia on
their sleeves.
He
stayed at the Commandatura until the beginning of August and then he was
taken back to the basement at the pre-trial detention centre.
612. In
the pre-trial centre he was interrogated three or four times by civilian
investigators, and beaten with a stick, but less than the other applicants. As
for the conditions of detention there, he had a bath once every ten days. There
was no toilet in the cell, so he was taken out of the cell each morning to go
to the toilet. The applicant had no visits from his family or a lawyer for the
first five or six months of his detention.
613. After
the trial he was taken to Tiraspol Prison No. 2. There were no sheets or
blankets, and he slept on bare benches. He was not personally ill-treated in
prison. He was not allowed to see his wife or his lawyer for six weeks.
He
received no medical visits from local doctors. When the applicants met their
wives, they would ask for Chisinau doctors to come; and then they were visited
a few times. Professor Tîbîrna saw the applicant in 1996 when he had chronic
pancreatitis. Doctor Lesanu also came to see him. He complained to these
doctors about the prison conditions but not about any ill-treatment after the
trial. His colleagues were held in separate cells, so he cannot confirm or deny
that they were ill-treated. It was in 1992 and 1993 that all the applicants
were ill-treated.
He
had have received regular visits from his family. Lately he has been receiving
parcels; in the beginning there were many more restrictions. It depended on how
the prison administration felt.
614. The
Moldovan Government authorities could do much more. Although the applicant’s
wife told him that the Moldovan authorities have been trying to assist her
during his detention, he considers that they could have done more after the
conflict ended.
615. The
applicant heard about the so-called “Ilascu group” for the first time when he
was arrested. He has never belonged to the military or secret services of
616. Since
the events of
10. Tudor
PETROV-POPA
617. On
618. He
was taken to the militia building. He was not immediately interrogated there.
He stayed there until
The
guards at the militia building told him that they came from various cities in
The
applicant saw Starojouk and Gorbov. They interrogated him. They did not wear
masks when interrogating him. They did not interrogate him about any links with
Ilascu and the Popular Front. They simply wanted him to admit that he was part
of the so-called Ilascu group and to confirm what they said. He was not a
member of any political party, but he did not want to fight on the
Transdniestrian side. He had been a soldier in
619. Then
he was taken to Tiraspol Prison. Before the trial, he was kept at the militia
station for several months, and then in solitary confinement at Tiraspol
Prison. He was never taken to the Fourteenth Army Headquarters. He was
interrogated during his detention by persons who were wearing masks.
620. The
applicant did not know Gorbov. He had met Bergman at the trial. He did not
really see Ilascu or Ivantoc during his detention. He did not know any of them
before the trial.
He
was not visited by a lawyer at all during the investigation, only after.
621. After
the trial he suffered no ill-treatment. At the time of the hearing the
applicant was detained alone in a cell in Hlinaia Prison, where Ilascu was.
In
1995 the applicant was visited by Professor Tîbîrna accompanied by Doctor
Lesanu, in
622. He
has received family visits, but guards are always present. He has corresponded
with his family, but they are not permitted to write to him in Latin script. He
receives about six parcels per year.
623. The
Moldovan Government had not done all that it could. In fact it had done
nothing; otherwise the applicants would already have been released. However,
his family had been given material and financial assistance by the Moldovan
Government.
624. The
applicant saw ammunition being given to the population in 1992. This ammunition
was taken from the Fourteenth Army. The Transdniestrian army came from the
Fourteenth Army, which had been the only one there before the Transdniestrian
regime suddenly seemed to have armed forces of its own.
11. Colonel
Vladimir GOLOVACHEV
625. The
witness previously worked in
He
was born in the
626. Since
July 1993 he has been the Governor of Prison No. 2 where is a harsher regime
than in Prison No. 3, which has women prisoners. All
the various conditions governing visits, whether long or short, parcels and so
on are to be found in the Prison Rules. Prisoners who do not break the Rules
benefit from all such entitlements. The strict regime includes all the
common-use facilities, such as the small factory, the sporting facilities and
so on, but also solitary confinement and a wing where dangerous prisoners are
kept together. Exercise walks are not available for persons in special cells.
627. Mr
Ivantoc is kept in a cell on his own, a cell designed for six prisoners,
because he refused to go on to the ordinary regime. Mr Lesco is kept in the
ordinary part of the prison and enjoys all the normal rights. This entails four
short visits and two long visits per year. There has never been any problem
about visits by lawyers. Persons detained under the strict regime however do
not often ask to see lawyers.
628. There
was no deterioration in the applicants’ conditions as from 1999. Mr Ilascu
never made a complaint about this.
629. Mr
Ivantoc received medical visits from doctors coming from Chisinau.
630. As
to the existence of any agreements or rules regarding the transfer of prisoners
to or from
631. The
witness was not aware that the Prosecutor General of
632. Mr
Ilascu was released in May 2001. He was freed by virtue of a decree by the
President of Transdniestria and an order of the Minister of Justice, Mr Balala.
He did not know how this happened, nor did he know who had accompanied Ilascu
to Chisinau.
633. Concerning
the treatment of sick prisoners, they were previously transferred to Benderi
hospital. Lately, however, this practice had been discontinued because of
problems. Therefore, for ordinary illnesses the treatment took place in prison.
Prisoners were taken to
634. Prisoners
do not often ask for a visit from a lawyer. If the lawyer has a proper permit,
then the Governor will give authorisation for the visit to take place. It is
the Minister of Justice who issues the permits. In Prison No. 2 there are only
convicted prisoners, no remand prisoners. Pre-trial detention takes place in
this part of the building, in Prison No. 3.
635. Mr.
Ilascu was kept in Prison No. 2 on his own from 1997 until he was freed. He was
kept in cell no. 13. He was held in a cell on his own because they had
never had such a category of prisoner before. There was therefore no point in
putting him together with ordinary criminals. Mr Ilascu was not asked
whether he wanted this. The witness knew nothing about Ilascu’s allegation that
on
636. Prisoners
can complain about alleged assault by prison staff, interference with parcels
and so on from
637. The
prisons in Transdniestria are run in accordance with the new Prison Code. The
Moldovan Code is not applicable there. Prison No. 2, like all the other prisons
there, has been under the control of the “
638. Mr
Ivantoc was a victim of his own actions, because he had refused to leave his
cell. As a consequence he had lost all his entitlements. He was in a cell by
himself because he did not wish to share a cell with others.
639. The
possibility of early release is decided after reviewing the prisoner’s file.
But the applicants in this case have never asked for any such review. They
addressed all their requests to the Moldovan Government.
640. As
Governor the witness has never had to discipline prison officers for
ill-treatment – just for transmitting messages illegally outside the prison and
that sort of thing.
641. The
uniform of the prison guards is similar to the Russian uniform. The insignia
are different. The Transdniestrian officials do not take orders from the prison
authorities in
642. The
applicants’ lawyers had never asked for a meeting with their clients. Had they
done so, such a request would have been properly considered.
643. There
is no law or official rule that prohibits prisoners’ correspondence in
Romanian, but the prison administration uses the language which is common in
Transdniestria, namely Russian. They must be able to have censors who are
capable of reading the prisoners’ correspondence. But the prisoners are allowed
to receive newspapers in Romanian.
12. Stepan
Konstantinovich CHERBEBSHI
644. The
witness was born in
645. In
Hlinaia Prison, prisoners are held alone in their cell which measures 16 square
metres. As regards the rules on visitors, correspondence and parcels, convicted
detainees were entitled to receive visits but they had to get permission first
according to the Prison Rules. However, prisoners in pre-trial detention had no
right at all to correspond.
646. The
witness was not aware of the rules as to visits from lawyers.
647. There
was a medical department in the prison, with a pharmacy, but there was no
clinic with beds. For that civil facilities were used. Medical visits occurred
upon request from the prisoner. The applicants had been examined by outside
doctors from
648. After
their trial the applicants were sent to Hlinaia Prison. Ilascu was held
separately and the other three were in one cell together. They had the right to
leave the cell and to have an exercise walk for one hour per day. Those who
were ill had one additional hour of exercise.
649. Hlinaia
Prison had a special wing for tuberculosis sufferers, but Petrov-Popa was not a
prisoner when the witness was Governor of Hlinaia Prison.
650. Ilascu
had been subject to special conditions in prison because he had been sentenced
to death. He was not allowed to share his cell with other prisoners. The window
of Ilascu’s cell had shutters which closed from the outside. The light still
came through, but the prisoner could not look through the shutter. For Ilascu
special permission from the Ministry of Justice was needed before anyone could
visit him.
651. The
witness never received any official complaints from Ilascu about his treatment
when in Hlinaia Prison. He never heard that Ilascu’s sentence had been quashed
by the Moldovan Supreme Court. Ilascu was not the only death-penalty
prisoner: there was one other, who was kept in the same conditions.
652. Hlinaia
Prison was not subordinate to the Supreme Court of Moldova and the organs of
the
653. The
witness never received any orders either from
654. A
prison governor has no power, without a superior order, to make a decision on
the transfer of a prisoner. During the time the witness was Prison Governor, he
never had a prisoner transferred from another country, for example
13. Sergey
KUTOVOY
655. The
witness has been the Governor of Prison No. 1 since 2001. He entered the
penitentiary system in 1993 and has spent his professional career in prison
administration. He is also studying for an Open University degree.
656. In
2000 a new Criminal Code and new internal Prison Rules of the “MRT” had been
introduced. The position was significantly different before, when the
legislation and rules of the
657. No
complaint was ever received from the prisoners about their conditions of
detention. None were made to the Council of Europe’s Committee for the
Prevention of Torture. But it was true that a very recent report by this
Committee made certain criticisms concerning the covering of the windows in the
cells and the regime of isolation. The investigation of a member of the prison
staff after a complaint by a prisoner was rather an exception. There had been
no more than twelve since the witness had taken up his duties.
658. The
right of a convicted prisoner to receive a visit from his lawyer depends on the
seriousness of the crime for which the prisoner is detained, on whether he has
previous convictions and so on. There are three categories of prison regime.
The prison authorities apply the courts’ decision as to what regime is to be
applied to a prisoner. The prison administration can subsequently change the
regime – for example, if the prisoner has committed a breach of the prison
regulations.
659. Neither
the Prison Administration in
660. The
transfer of a prisoner from one institution to another can only be decided by a
court. The Government decide on an extradition case.
661. At
the time of the hearing, the only one of the applicants detained there was
Petrov-Popa. Cell no. 31 used to be occupied by Ilascu. The cell had a standard
window with shutters. These shutters are the same as those used in Chisinau
prisons. Recently, in Hlinaia Prison the shutters had been dismantled in six
cells, but for lack of financial and technical means it had not been possible
to remove them in all cells, as the shutters needed to be replaced with bars.
662. Prisoners
suffering from tuberculosis are detained in all zones of the prison; there are
no specialised units for such patients. Mr Petrov-Popa, who had tuberculosis,
had moved into the cell previously occupied by Mr Ilascu. He was allowed
to go for exercise walks just like the other prisoners. In 2002 Mr
Petrov-Popa’s regime had been improved on the witness’s orders. He was the only
prisoner to have benefited from a new regime in that year. Mr Petrov-Popa now
has the right to receive six parcels and six short-term visits per year,
instead of three.
No
restrictions on language are applied. Thus, Mr. Petrov-Popa could receive
letters or newspapers in Romanian. Mr Petrov-Popa has never complained about
the conditions in his cell. He was the one who asked to go back into his present
cell. Petrov-Popa has never asked for a visit by a lawyer.
14. Lieutenant-Colonel
Yefim SAMSONOV
663. The
witness was head of the medical department in the Transdniestrian prison
service.
664. The
witness examined the applicants during the trial, in Tiraspol Prison
No. 2. There were prison officers present. The applicants never trusted
prison medical services and categorically refused medical services from the
medical staff of Prison No. 2. They never asked the witness to examine them in
relation to alleged ill-treatment. The witness never saw any signs of
ill-treatment on them. On several occasions, doctors from outside the prison
service, from Chisinau, came to examine the applicants and brought the
appropriate medicine with them. These were Professor Tîbîrna and
Dr Lesanu.
665. The
applicants were not suffering from any special illnesses. In 2002 Mr
Petrov-Popa was treated for tuberculosis. He had a damaged lung from which
liquid was drained. Some time ago Ivantoc had had a liver operation. Professor
Tîbîrna came as a specialist from Chisinau to treat him. The recommendations of
Professor Tîbîrna’s team in relation to the applicants were not implemented,
because the applicants refused, as they did not trust the prison doctors.
666. The
Prison Administration in Transdniestria did not take instructions from the
15. Vasiliy
SEMENCHUK
667. The
witness, the holder of a Moldovan passport obtained before he was working in
the prison service, has been the prison doctor in Hlinaia Prison No. 1 since
1995. He never worked in Tiraspol Prison No. 2. As the prison doctor in Hlinaia
Prison, he was responsible for all sanitary and hygiene conditions in the
prison. The witness was a dentist, but he could also carry out blood tests.
Moreover, he was assisted by a surgeon and other specialists on his staff.
668. The
witness had only met the applicant Ilascu, none of the other
applicants. Mr. Ilascu never asked to see the witness; he wanted an
outside medical delegation from
669. There
are no regular medical visits for prisoners, but only if the prisoner asks.
There is a permanent medical unit in the prison.
670. The
witness did not meet the applicant Petrov-Popa. The applicant was detained in a
cell on his own. Mr Petrov-Popa never asked for medical assistance. He was
currently on level 3 of his illness, that is, the illness was not active.
Treatment was needed every nine months, not at shorter intervals, as was
confirmed by the Medical Department.
671. There
was a visit to the prison in 2003 by the Council of Europe’s Committee for the
Prevention of Torture. The witness did not remember the visit by this Committee
in the year 2000. He did not remember that after the 2000 visit, the CPT was
concerned about the applicant’s access to treatment for tuberculosis, in that
he was dependent on his family and their resources for purchasing medicine, and
that it was up to his family to provide food for his special diet. The witness
recalled that in the past the prison administration did not have the
appropriate medicine to dispense to Mr Petrov-Popa, but stated that the
situation had changed.
672. Mr.
Ilascu never complained about his teeth. He had all his teeth when the witness
saw him. After the visit by Professor Tîbîrna’s team, Ilascu’s wife brought him
medicine from Chisinau. The witness was always present during Mrs Ilascu’s
visits and he encouraged her to bring Ilascu the necessary medicines. Mr Ilascu
complained about his stomach, but his pain was not the result of any act by the
prison administration. The witness last saw Ilascu in 1999.
16. Dumitru
POSTOVAN
673. Mr
Postovan worked as a prosecutor from 1990 till 1994 and as Prosecutor General
from 1994 till 1998. He had been appointed prosecutor in 1990 by the Parliament
of Soviet Moldova. At the time of the hearings, he was working for the Chamber
of Trade and Industry, and advised its President on international law.
674. There
was never an official split between
675. The
applicants were not “arrested”; they were just captured. There was no custody order
of an official court of Moldova. A number of people were captured. The
Prosecutors’ Office wrote to Smirnov, in his capacity as head of the Tiraspol
City Council (he had been appointed in 1990) asking him to hand these people
over to the prosecuting authorities of the Republic of Moldova, but there was
no answer to this request. It was Mr Sturza who headed the negotiations.
676. General
Iakovlev was detained around February-March 1992 upon an order issued by the
Prosecutor General’s Office. The order to arrest him was indeed discussed with
the top leadership in
The
witness had heard about the rumours that Iakovlev had been released in exchange
for the release of 23 Moldovans detained by the Transdniestrians. Indeed, the
Moldovan authorities were detaining about 40 Transdniestrians and an exchange
had taken place. But this had nothing to do with Iakovlev. The witness was not
aware of any pressure from the Russian Government to release him. He knew that
General Stolyarov came from
677. The
Prosecutor General’s Office had warned the President of the so-called Supreme
Court of the “
678. For
every case where a crime was suspected of having occurred in Transdniestria,
the Prosecutor General’s Office opened a case file. It did so also as regards
Ilascu and his fellow prisoners, after the decision of the “MRT Supreme Court”
had been quashed by the Moldovan Supreme Court, but it was impossible to carry
out an investigation and proceed to all necessary acts for that purpose. In
August 1995 an amnesty was granted by the President of Moldova, followed up by
a decision of the Parliament. The effect of this on investigations was that any
case covered by the amnesty was stopped.
679. The
witness’s deputy opened a criminal investigation in December 1993 in relation
to the prosecutors and judges who had been involved in conducting the Ilascu
trial, on suspicion of committing an abuse of power. A number of investigations
concerning persons occupying posts of power in Transdniestria were opened. But
it proved impossible, not just difficult, to carry out any investigation. The
Prosecutor General’s Office interviewed the families of the Ilascu group, but
they could not provide much information.
680. Apart
from the Ilascu group, there were other people who were detained for short
periods in Transdniestria, but no one was prosecuted.
681. Following
the motion of October 1995 by the Moldovan Parliament calling on the Moldovan
Government to deal as a matter of priority with the problem of the detention of
the Ilascu group, the Prosecutor General’s Office requested that the file be
sent to them by the people in Transdniestria for the purpose of an
investigation, and that the persons they were detaining be transferred to
Moldova. But these requests were simply ignored. One could see no way of
resolving the issue satisfactorily other than by diplomacy.
682. The
witness was not in office in the year 2000 and was therefore unable to answer
any questions about the order annulling the prosecution of the judges and
prosecutors in Transdniestria who had been involved in the trial against the
applicants. Likewise, the only information he had about the release of Ilascu
was what he had read in the newspapers: that this release was the result
of negotiations between President Voronin and the Russian President.
683. Between
1992 and 1998, apart from the dispatch of numerous letters, the witness’s
deputy, Vasile Sturza, was specifically charged with the responsibility of
working to secure their release. He went to
The
Prosecutor General’s Office did not contact the Russian prosecution authorities
directly, although there was an agreement to that effect between the Moldovan
and Russian authorities.
684. The
witness stated that, officially, there were never any recognised or implemented
agreements between the judicial authorities of
685. The
witness was not aware of the order issued by his successor, Mr Iuga, in
August 2000, dropping the charges against the judges and prosecutors who had taken
part in the Ilascu trial, but thought that the Prosecutor General should have
invoked other Articles of the Criminal Code, for example the one on abuse of
public power, so that they would not be free of any criminal charge.
686. According
to the witness, the effect of initiating a criminal investigation against the
governor of the prison where the members of the Ilascu group are held, is that he would run the risk of being arrested in
687. The
witness considered that the State authorities of
688.
The witness stated that there were other instances apart from the Ilascu case
in which a criminal prosecution had been started against judges and prosecutors
in Transdniestria. He did not know for certain the outcome of those
investigations, but he presumed that they were stopped for the same reasons.
689. The
witness did not feel any pressure at all when he was working in the Prosecutor
General’s Office. The Prosecutor General was independent of the Government. The
Minister of Justice could not give him instructions, though the Government
could address requests or proposals for the opening of an investigation.
690. The
witness considered that the constitutional Moldovan authorities exercised no
power or authority over the eastern part of the country.
691. Smirnov
was arrested in 1992 and then released. It is true that Antiufeev and others
visited
692. The
witness was not aware that officers of the Fourteenth Army had been detained by
the constitutional Moldovan authorities during the conflict in 1992. Indeed, he
had written to the Russian prosecuting authorities in relation to the presence
of the Cossacks in Transdniestria in order to learn about the position of
693. There
were official relations between the Prosecutor General’s Office in
694. The
witness had seen a film on Russian television about the participation in the
elections there of a “Colonel Gusev” who was in fact General Lebed, but the
Moldovan authorities had no official information on that, however.
695. President
Snegur went before Parliament to say that the Fourteenth Army had intervened in
Transdniestria with their tanks. The witness thought that this information must
have been true since he could not see otherwise where the Transdniestrian
separatists had got their tanks from. The witness also acknowledged that in
June 1992 official information was presented to Parliament by the Ministry of
the Interior about the participation of tanks and armoured vehicles in the
conflict. But it was not easy to say whom to prosecute. In the beginning, the
Fourteenth Army was supposed to belong to
17. Valeriu
CATANA
696. The
witness was the Prosecutor General of
697. The
constitutional prosecuting authorities of
698. The
witness had not heard about the order of
699. The
witness had read in the newspapers that President Voronin and the
President of
700. There
was no cooperation, whether official or unofficial, between the prosecuting
authorities of
The
witness knew that the Ministry of the Interior had orders to cooperate with the
Ministry of the Interior of Transdniestria in order to improve the fight
against crime - to return to the other side of the river persons suspected of
serious crimes. But there was no formal extradition as such, since it concerned
persons on the territory of the same State. But unofficially it did go on. As
regards extradition in general, previously it was done by decision of a
prosecutor. Now the legislation had changed and what was required was a
decision by a court.
There
was no official agreement between
701. During
his period of office the witness received no requests from Mr Ilascu or
the other applicants and had no contact with the Transdniestrian authorities
about the Ilascu case. In that period no one in his office worked on the case
brought against the judges and prosecutors in Transdniestria. The case was
suspended. In the period 1998 to 1999 no investigation was pursued in that
connection, although the formal decision stopping the case was taken in 2000.
702. The
Supreme Court of
703. No
complaint was sent by Mr. Ilascu to the Prosecutor General’s Office. The letter
which Mr Ilascu sent in 1999 to the Moldovan Parliament was not forwarded by
Parliament to the prosecuting authorities. The witness had never heard before
of such a petition by Mr. Ilascu.
704. The
witness stated that he had been forced to resign for political reasons because
persons from the Communist Party objected to his work, as he insisted on taking
his decisions on the basis of the law and not according to the way the
political wind was blowing. When a dismissal is judged to be desirable, one can
always find a reason, and that is what happened to the witness. The post of
Prosecutor General was a political position in a sense. The witness tried not
to get involved in political activities and just to stick to the law. But
unfortunately some cases touch on politics.
705. The
witness was of the opinion that the release of the Ilascu group would have been
possible only by the use of force. The constitutional Moldovan authorities
could not have done more than they did. Even in terms of international
pressure, they did all that they could.
18. Witness
X.
706. The
witness was a former senior official involved in negotiations with
Transdniestria. At the time of the hearings, he was working in a
non-governmental organisation.
707. The
Fourteenth Army was involved in the events of 1991 to 1992. Retired Fourteenth
Army officers were hired by the separatists. The Fourteenth Army then
intervened directly, which led to a military victory for the separatists.
Thereafter
There
was a meeting of the Moldovan, Russian and Ukrainian Ministers in which the
witness participated. There was a possibility of a resolution of the situation
in 1992.
708. Smirnov
was hidden by the Command of the Fourteenth Army, by Guennadi Iakovlev, in
August 1991 when he feared arrest by the Moldovan authorities. Iakovlev was
then placed under the orders of Smirnov, with instructions to protect the
unconstitutional regime in Transdniestria.
The
witness was present in person in the spring of 1992 at the interrogation of a
young man from
709. The
witness carried out an interview with Igor Smirnov. He had been elected,
together with 64 other representatives, to the United Council of Labour in
Transdniestria in February/March 1990. He had voted for Mircea Druc as Prime
Minister and so had every possibility to prove himself a democratic. The
witnessed interviewed him with regard to the purpose of holding the so-called
second Congress in 1990 (this being the Congress which led to the proclamation
of the
The
scenario used in Transdniestria had been used before in Abkhasia and
710. On
25 or
711. Igor
Smirnov was a citizen of the
712. The
witness thought that the Russian troops would stay in
If
the Fourteenth Army withdrew, this would lead eventually to a solution of the
problem. No military equipment had been withdrawn recently. The date for the
complete withdrawal had not been respected, and the new one would not be
either. There was a statement on the web site of the Russian Duma to the effect
that members of the Duma were requested to refrain from making declarations on
Transdniestria because of the case pending before the European Court of Human
Rights, since such declarations could damage the situation in the case.
713. Mr
Ilascu represented the Popular Front in
714. General
Lebed, Commander of the Fourteenth Army like Iakovlev before him, had allowed
himself to be elected to the unconstitutional legislative body in
Transdniestria. He had openly described how he had armed the Cossacks to fight
the constitutional Moldovan authorities.
715. One
of the questions asked at the public hearing before the Court in
There
was also a debt of seven hundred million dollars owed by Transdniestria to
As
regards political support, one could cite the declarations of the Russian
Vice-President, Mr Rutskoi, in
716. The
budget of
717. If
the Fourteenth Army had not participated in the conflict in 1991 and 1992, the
illegal regime would not have survived. The participation of the Fourteenth
Army was decisive for the military, political and moral defeat of the
constitutional Moldovan authorities. And it was essential for ensuring the
survival of the illegal, separatist regime.
718. The
witness first heard of the Ilascu group after their arrest. He did not know
whether this group were members of the secret services
of
19. Mircea
SNEGUR
719. The
witness was President of Moldova from 1990 until 1996. At the time of giving
evidence, he was honorary President of the Liberal Party.
720. In
1989 Russian troops arrived in large numbers in
President
Yeltsin possibly did not give any direct orders. But it could not be denied
that there had been military, economic and intellectual support. The rebels in
Transdniestria had at their disposal a very well-equipped army.
721. The
document ending the conflict, signed by Yeltsin and the witness, attested to
the fact that the parties in the conflict were
Before
the presidential declaration was signed, it was the task of Alexander Rutskoi,
the Russian Vice-President, to come to Chisinau to negotiate a settlement. The
draft agreement he negotiated was then signed in
722. The
July 1992 cease-fire agreement in
723. The
reason why the agreement in 1992 was signed was that there was a risk of seeing
the Fourteenth Army in the streets of Chisinau. People were dying. One
particular State was supplying arms to the rebels in order to make this
possible. There was a risk of tanks arriving in Chisinau. No tanks are produced
in Transdniestria. Forty per cent of the industry in
What
the Moldovan side wanted was an end to the conflict, a cease-fire, and that
they obtained. They also supported, in the drafting of the document, the
introduction of peace-keeping forces in Transdniestria from
724. Tanks
of the Fourteenth Army took part in the conflict. For example, in the Bender
operation, tanks crossed the bridge and then went back.
725. No
negotiations took place directly with the Fourteenth Army. But there were
telephone conversations with the Fourteenth Army in order to try to persuade
them not to arm the separatist rebels, for example with General Lebed. The
witness heard statements by General Lebed on television saying, “Our tanks are
going to
726. In
the agreement of
727. The
witness thought that the political and economic support to Transdniestria from
the
728. As
to relations with Transdniestria, since 1992, after the situation calmed down,
there had been no more shooting. The next stage was to try to seek a final
settlement of the conflict. The first productive meeting took place on
During
the witness’s time as President, there had been contacts with Transdniestria,
sometimes good, sometimes bad. The Moldovan view was that negotiations were
better than conflict. The participants were the witness himself, Mr Smirnov,
the Speaker of the Moldovan Parliament, Mr Diacov, and Mr Lucinschi. On the
Transdniestrian side, there was also their so-called Prime Minister and other
Ministers and Departments when particular items came up on the agenda – for
example post, customs and media. Most of the time, the Moldovans met their
demands, especially on economic issues, because otherwise ordinary commercial
enterprises, the working people and the peasants would have suffered. There
were no representatives from the Fourteenth Army there as a party. There were
mediators present at all meetings – from
729. As
to the presence of Russian troops in
If
the withdrawal of the Russian troops from Transdniestria had taken so long
despite previous agreements, it was because this must have been the wish of the
730. A
number of efforts were made after the cease-fire to secure the applicants’
release. For example, there was the decree in 1995 declaring an amnesty for all
those who had taken part in the conflict. For anyone detained in
731. Mr
Yeltsin’s reaction every time was one of understanding and compassion and
promises to influence Smirnov. But this did not happen. President Yeltsin never
said that he had no influence. He was forever making promises that he would try
to influence Smirnov, but his promises would stay without effect until the next
meeting. The release of Ilascu was not the result of any action by Smirnov
himself. It was only done because of pressure from the outside.
732. The
signing by President Lucinschi of the memorandum of May 1997 in
733. In
the Joint Control Commission, under the aegis of the Ministry of Integration,
there were always problems because of interventions by the Transdniestrian
side, especially in connection with Bender and their attempts to get the
Moldovan police to withdraw.
The
witness had signed documents giving greater local authority to Transdniestrian
authorities within the
The
witness had no problems in going to or from Transdniestria,
he was never stopped or humiliated.
734. The
constitutional Moldovan authorities provided support to the families of the
Ilascu group.
As
to Mr Ilascu, the witness met him when he went into politics. After Mr Ilascu
was released they met once, in Chisinau. He once telephoned to the party’s
headquarters and left his telephone number, but he had no more contact with
him.
735. Smirnov
was released for a number of reasons, in particular good intentions prompted by
good faith, by a desire to obtain what the Moldovan authorities wanted through
negotiations.
20. Alexandru
MOSANU
736. From
1990 until February 1993 he was the President of the Moldovan Parliament, and
from 1993 until 2001 he was a Member of Parliament.
737. The
Parliament had evidence that the separatist forces on the left bank of the
Guennadi
Iakovlev, who was the ideologist of the separatist movement, said in a
newspaper article on
738. Without
the support of the
739. Towards
the end of June 1992 General Lebed, as Commander of the Fourteenth Army, called
the witness on the telephone, when the President of the State was away, and
ordered him not to allow the transfer of certain military formations of the
Moldovan Army from one zone of the country to another. When the witness replied
that he did not know who Mr Lebed was and that he had to come and explain
the purpose of his visit to
740. At
about the same time, at the end of June 1992, the supply of electricity to
Chisinau from the power station in Cuciurgani, in Transdniestria, was
disconnected. As
741. In
1992 the witness did not know about the Ilascu group; he learned about it
later. At that time many people were being killed, arrested and buried. Mr
Ilascu was not an MP then. He was first elected in 1994 on the list of the
Popular Front, and re-elected in 1998.
742. The
authorities in
The
witness heard of Mr Ilascu on
743. A
committee was set up in Parliament to deal with the problem of the Ilascu
group. The authorities in
744. There
was no reaction on the part of the Russian authorities when appeals seeking
withdrawal of the Cossacks were made. The witness telephoned Mr Hasbulatov, the
Speaker of the Russian Parliament, but he showed no interest. The Moldovan
Parliament also sent representatives to the Russian and Ukrainian Parliaments
to explain their position. There was no official response to the Moldovan
appeals.
In
October 1994
The
Moldovan Parliament supported Yeltsin during the coup in
745. The
reason behind the cease-fire agreement of
746.
21. Witness
Y.
747. At
the time of giving evidence, the witness was a senior member of the Liberal
Party of Moldova. He was a former member of the Moldovan Parliament and a
former diplomat.
748. The
When
President Snegur and the Prime Minister, Andrei Sangheli, were in
However,
the talks between
Failure
to solve the overall problem gave the Russians the excuse to keep their Army
there. And it was they who controlled the possibility of settling the dispute.
The
synchronisation formula was proposed by the representative of the Russian
Ministry of Foreign Affairs. It was expressly included in the press release at
their request. When
749. The
witness was not aware of any cases of the peace-keeping forces breaching their
terms of reference. His main dossier was the Russian Organisational Group, and
the peace-keeping troops were not part of his brief. The witness learned later
that the peace-keeping forces were used several times by the Russian military
without the consent of Chisinau.
750. The
Ilascu issue was raised many times by the Moldovan authorities. In December
1992 negotiations were commenced with the Transdniestrian side, at a venue
outside
751. There
where indications of the Russian policy towards Transdniestria on the Internet
sites of various research and other institutions in
752. The
witness recalled an ultimatum from the Russian side, given in 1994 at the
United Nations General Assembly when the Moldovan Representative, for the first
time at such a level, alluded to the participation of the Russian side in the
Transdniestrian conflict. The Deputy Foreign Minister of the
753. The
treaty drafted in 1990 was much better for
754. From
1997 to 1998 the witness was adviser on Transdniestrian issues, including the
question of the release of the Ilascu group. This problem was raised many
times. In the witness’s view, much more could have been done, more efficiently,
than the efforts that were actually made. The witness’s plan for the settlement
of the Transdniestrian problem was rejected by the then Moldovan authorities,
and he was dismissed as the principal adviser in charge of Transdniestria because
his plan was disclosed.
755. The
Russian authorities were unfortunately providing support to the illegal
Transdniestrian regime in
756. On
757. The
200,000 tons of Fourteenth Army military equipment remaining in Transdniestria
should belong to
758. Smirnov
was a citizen of the
22. Andrei
SANGHELI
759. The
witness became Prime Minister in July 1992. The armed conflict occurred before
then. At the time of giving evidence, he was working for a French firm as
Director General. The witness had held no political office after 1997.
760. Although
there was no proof that the Fourteenth Army was involved in the fighting in
1992, arms, ammunition and equipment of the Fourteenth Army were used by the
separatist forces. The ammunition and armoured vehicles that the
761. The
problem of the Ilascu group was on the agenda at every meeting that
The
release of the Ilascu group was a political problem. The Transdniestrian regime
was keeping the remaining applicants in prison as a bargaining chip. They
wanted to derive benefit from any decision to release the prisoners.
762. Concerning
the financial support allegedly accorded to the rebel regime in
763. In
1993 the witness discussed this debt issue with the Russian Government and also
with the Transdniestrian authorities. They agreed to divide the debt in two.
The witness did not know whether the Transdniestrians paid their part, but
thought that they did not.
23. Witness
Z.
764. The
witness was a former minister of
765. The
witness participated in all the relevant negotiations. He therefore had
information about the transfer of military equipment from the Fourteenth Army
and the ROG to the separatist forces. Before the war broke out there had been a
massive transfer of munitions to the separatists. This started with a decision
of the Supreme Soviet to set up a paramilitary force to ensure order.
At
the time of the referendum about joining the
The
witness stated that he was in possession of a great deal of information on the
quantity of arms actually transferred. After the war the process continued.
This was done through resolutions of the Russian and Transdniestrian
Governments. The Russian Prosecutor General inspected the Russian Army.
The
witness pointed out that there was archive evidence, in the form of television
film, which showed clearly that the main tanks that took part in the assaults
were flying Russian flags. Some of these tanks were indeed flying two flags,
the Transdniestrian as well as the Russian flag.
766. After
the armed conflict, there was an exchange of prisoners. The Dubasari hostages,
i.e. 30 policemen captured by the Transdniestrian forces, were kept for about a
month.
It
was never intended to include the Ilascu group in an operation involving the
exchange of Iakovlev for the 30 policemen, since Iakovlev’s release had
occurred before Mr Ilascu’s arrest.
The
issue of the Ilascu group was nevertheless raised by the Moldovan authorities
in the context of an exchange of prisoners. During the armed conflict
767. The
direct negotiations with Mr Smirnov were aimed at the implementation of various
decisions taken by Parliament and the Government regarding the settlement of
the conflict. These negotiations took place with General Creanga and concerned,
for example the withdrawal of military formations. That was in March 1992.
Then, on
768. The
relations between
The
Control Commission was initially composed of a Russian delegation, a Moldovan
delegation and a Transdniestrian delegation. Later they were joined by
delegations from the OSCE and the
769. The
separatist regime could not exist without Russian support. It was not ethnic,
religious or even internal political reasons that prompted this conflict. It
was dictated by external reasons. It was designed to split
770. This
was not an ethnic conflict. Guslyakov was the General in command of the Bender
police station. He ensured law and order there on behalf of the constitutional
Moldovan order. He was Russian-speaking. He did all that he could to maintain
order, for as long as he could. He subsequently became a Deputy Minister in
771.
772. Iakovlev
was arrested by the Moldovan security service. There was enough evidence of his
having helped to arm the separatists. It is not true that he was freed because
there was not enough evidence against him.
773. General
Lebed, who was the Commander of the Russian Operational Group, was elected to
the Transdniestrian Parliament in 1993.
774. Paramilitary
forces from Transdniestria took part in the war in Abkhasia. A Dolphin force
detachment belonging to the Transdniestrians took an active part in the
operations in Abkhasia. This was confirmed by Antiufeev’s colleague from OMON,
Goncharenko Matveev, Deputy Minister of Security of
the
Goncharenko
requested that people who had fought against the legal, constitutional forces
of
775.
24. Anatol
PLUGARU
776. The
witness was the Minister of National Security between August 1991 and July
1992. Before that, he was a colonel and was appointed head of the KGB in
777. The
witness knew Mr Ilascu because of his job. He came into contact with him when
778. The
witness did not know whether the Russian special services, the Alpha Group,
were involved in the interrogation of Ilascu.
779. The
witness considered that Mr Ilascu was a prisoner of war falling under the
Geneva Conventions of 1949 and their Protocols. A number of attempts had been
made to exchange Mr Ilascu and his colleagues but
780. Moreover,
781. The
Ministry of the Interior did talk to the Transdniestrian authorities. Many
attempts were made to have Mr Ilascu and the other applicants released. But all
proposals were rejected because the Ilascu case represented a means of
effective leverage for the Transdniestrians, a tool which they could use to
humiliate
782. The
separatist regime de facto, was outside the legal control of the
constitutional Moldovan authorities. The Moldovan legal authorities had been
effectively destroyed in Transdniestria. The Transdniestrian regime was armed
with weapons from the stocks of the Fourteenth Army. Iakovlev had armed these
paramilitary forces. Lebed had pursued a policy of “active neutrality”.
783. There
was the “Balkan Arch Plan” with the following scenario : if
784.
785. The
cease-fire agreement with the Russians was signed in July 1992. The witness was
dismissed five days before that, under pressure from the Russians.
786. The
witness stated that he had never met Mr Gorbov. Earlier, before the armed
conflict, he was dismissed from the Moldovan Ministry of the Interior. When the
conflict broke out, he offered his services to the
The
witness knew Olga Capatîna, he knew that she was a
civil activist. She was involved in the League of Wives and Mothers of Soldiers
who died in
787. The
witness met Mr Ilascu in his capacity as head of the ex-Soviet
788. The
Moldovan Ministry of Security did not receive any support from outside. It is
true that
But
support was given by
25. Nicolai
PETRICA
789. The
witness was a graduate of a tank academy. On
790. He
commanded the Moldovan forces in the Dubasari fighting. It was Russian Army
soldiers that shot at the Moldovans. They were using 152 mm shells, which the
separatists did not have at that time. They were shooting from the
Cocieri-Dubasari line. Negotiations took place on
791. The
church in Golicani was destroyed by a 152 mm shell; shells of that calibre also
fell in the
General
Lebed openly said that he was pursuing a policy of “active defence”. They, the
Russian soldiers, fired shots towards the town of
792. Between
21 July and
793. In
May 1992 sixteen tanks were handed over to the Transdniestrian Guards. Of them,
thirteen tanks went to the Kacheevskii bridge-head. But on 24 May the witness
met his opposite number, whom he knew as a comrade from the
It
was not possible for the Transdniestrians to seize tanks. Lebed was permanently
there. The order came from
794. On
26. Vasile
RUSU
795. At
the time of giving evidence, the witness was the Prosecutor General of
796. The
criminal investigation opened in December 1993 against the judges and
prosecutors involved in the Ilascu trial was not taken far because the
necessary inquiries would have had to have been undertaken on the eastern, left
bank of the Dniester, and that was under the control of the separatist regime.
The legitimate authorities of
In
December 2002 the investigation was suspended. A criminal investigation was
also opened in 2000 in respect of the governor of Hlinaia Prison for unlawful
deprivation of liberty, but that investigation had also been suspended because
it was impossible to carry out any real investigatory work.
The
witness was of the opinion that the proceedings instituted against the judges
and prosecutors under Articles 190 and 192 of the Criminal Code were incorrect.
It would have been more appropriate to investigate under Articles 116 § 2 and
207 for usurpation of the identity of an official person and unlawful
imprisonment, as was done in regard to the investigation launched against the
governor of Hlinaia Prison.
797. An
exchange of prisoners involving the Ilascu group was proposed to the
Transdniestrian authorities, but the proposal was rejected. In the witness’s
period of office there had been no exchange of convicted prisoners between
The
witness did not know the Prosecutor General of Transdniestria,
he had never had any telephone contact with him.
798. If
the judges and prosecutors involved in the Ilascu trial or the governor of
Hlinaia Prison chose to come to Chisinau, as they could, they would be
questioned and the required procedure would be carried out. It would not be
necessary to detain them and it could not be known whether, as a result of any
interrogation, they would actually be charged with deliberate usurpation of
public office - that would be prejudging the investigation.
The
witness was not aware that the offences with which the prosecutors and judges
were charged (under Articles 116 and 207 of the Criminal Code) were considered
to be time-barred according to the Public Prosecutor Iuga’s decision of August
2000.
The
witness was of the opinion that if the Tiraspol prosecutors or judges involved
in the Ilascu trial travelled to the right bank of the Dniester, a criminal
investigation under Article 207 of the Criminal Code could be launched against
them despite possible problems of prescription.
Persons
can be convicted in absentia if there is sufficient evidence to confirm
their guilt. If these persons went abroad, for example, to
799. As
Prosecutor General, the witness was not allowed to travel to the left bank. At
the time of giving evidence, his Office had no control over events on the other
side of the river. The witness preferred not to answer the question as to
whether he was able to work with his colleagues on the other side of the
800. The
witness stated that if the file came before him as Prosecutor General of
The
witness had not had the opportunity to question Mr Ilascu when he came to
Chisinau after his release, on
27. Vasile
STURZA
801. From
2000 until
802. The
Commission of which the witness was Chairman was dealing essentially with the
political problems relating to the status of Transdniestria and its main goal
was to settle the latter’s legal status. There was another Commission dealing
with the social and economic problems arising from the Transdniestrian
situation. The economic, cultural and social aspects were handled in parallel
in another commission.
803. In
the context of the negotiations on the status of Transdniestria there were
discussions about the legality of official acts accomplished by the
Transdniestrian authorities, but the Moldovan side had always insisted on the
unconstitutionality of acts carried out by the Transdniestrian authorities.
Between 2001 and 2003 many draft texts for the status of Transdniestria were
discussed during the negotiations, some of which contained provisions
concerning what was to be done about decisions of the Transdniestrian
authorities, for example criminal sentences imposed and civil court judgments
delivered in the previous ten years.
804. Concerning
the possible release of Ilascu and his group, the Prosecutor General’s Office
asked the Prosecutor’s Office in Transdniestria for them to allow the Ilascu
case to be investigated by the constitutional authorities of
805.
In 1994, while the witness was in the Prosecutor General’s Office, he was sent
by President Snegur to Transdniestria to seek the release of Mr Ilascu and
the other applicants. Later, in 1996, he was allowed by Mr Smirnov to have
a first meeting in person with Ilascu in Hlinaia Prison. The witness was the
first to meet him in this way. The witness had a personal discussion with
Smirnov, on the instructions of President Snegur, to request the release of
Ilascu and the others. It was a complex and sensitive matter. A lot of politics
were involved in the case. He had many discussions with Mrs Ivanova, the
judge who tried the case as President of the so-called Supreme Court of
Transdniestria, with Mr Lukiç, the prosecutor in the case, with the Minister of
the Interior of the Transdniestrian regime, and with the President of the
Supreme Soviet of Transdniestria. At the beginning they agreed to examine the
case with a view to the release of all the prisoners who had been tried, but
they required that the procedure laid down in Transdniestria be followed.
806. There
was a Decree issued by Smirnov in March 1993 whereby a Commission on Pardons
was created. A Regulation on the activity of this Commission was brought out.
In order to observe the proper procedure, therefore, one had to convince the
members of this Commission to release the detainees in question. The witness
therefore had meetings with the Chairman of the Commission. Throughout 1996,
from April until the autumn, the witness had many discussions with the
Commission, which had the power to grant pardons to all persons tried in
Transdniestria. It was complicated, because one had to convince each individual
member of the Commission. The last meeting that the witness had was with the
representatives of all the services, that is to say, the Prosecutor’s Office,
the Supreme Court and the Supreme Soviet. All attended. Their conclusion was
that the release of the Ilascu group could go ahead if confirmed by the
decision of Mr Smirnov, who refused however.
The
discussions concerning release continued after 1996. Smirnov would say “yes”,
and then “no”. The final decision was taken in spring 2001. Previously, on
The
Moldovan authorities continued at the same time to discuss with the
Transdniestrian authorities the unconditional release of Ilascu and his group.
Mr Voronin and Mr Hill made separate appeals. There was a request for a trial
of the case by the Polish courts. These appeals were sent by the witness to the
Transdniestrian authorities. Finally, on
When,
on
As
to why the Transdniestrians refused to release them all,
Following
the failure to release the others, this issue was raised at all meetings with
the Transdniestrians when the witness headed this Commission. There was another
appeal signed by the witness and by the then Minister of Justice,
Mr Morei.
807. After
May 2001 there was no further meeting with Smirnov on this topic. They avoided
any such meetings. The witness discussed the issue of the applicants’ release
with his
808. As
to the order for the investigation of judicial officials who had taken part in
the illegal trial in Transdniestra, this was quashed on
The
witness had a discussion with President Snegur at the relevant time on this
issue, and then a lunch with the Transdniestrian authorities who were
constantly asking for this criminal investigation to be annulled. It was
discussed at the level of the leadership of the prosecuting authorities on both
sides. It was stipulated as one of the conditions for the settlement of the
status issue in general. But the legal and political considerations were
different and separate. The witness was of the opinion that what the
Transdniestrian prosecutors and judges had done was unconstitutional and that
they should be brought to justice. The status of Transdniestria is still the
subject of discussion on the basis of a draft instrument. This discussion
embraced the general question of criminal liability not just that of the
persons involved in the Ilascu case.
The
Moldovan authorities were aware of the request to resolve the problematic
situation of the people involved in creating the conflict. The witness
therefore found it difficult to say whether the decision of
809. The
withdrawal from Transdniestria of Russian troops was never raised in the
status-negotiation Commission. This issue was addressed in a different context.
In the list of guarantees on the status of Transdniestria, one related to
military issues. The Ministries of Foreign Affairs and Defence discussed the
question of the withdrawal of Russian troops within the framework of the
bilateral relations between
In
Transdniestria thousands of criminal cases had been tried. There was a lot of
politics bound up with the Ilascu case. The Transdniestrians had always said it
was not a political case but an ordinary case of citizens who had committed
murders and must therefore serve their sentences.
810. The
witness met the applicants, and also their families on many occasions, in
connection with various issues such as medical care, material support,
conditions of detention. All their requests had been satisfied in so far as
they came within the competence of the constitutional Moldovan authorities.
Family visits to the prison had been facilitated by the Moldovan authorities
with the provision of transport. Health care had been provided through the
Moldovan Ministry of Health. Mr Sturza’s Commission saw to it that they were
sent what they requested, such as newspapers and financial support for the
family.
811. The
Ministry of Justice carried out preparatory work for
812. The
Moldovan authorities have never recognised the judicial decisions and official
acts of the Transdniestrian region; they consider them unconstitutional. In
order to prevent the Transdniestrian people from suffering from this situation
after the events of 1990, Moldovan courts for areas in the Transdniestrian
region have been established on the right bank of the river. In the instances
mentioned in the question (of measures in family-law matters adopted by
Transdniestrian courts and authorities), citizens are forced to go to the
constitutional (i.e. legal) courts of
This
whole problem is the subject of on-going discussions. Ten thousand civil cases
have already been decided by the Transdniestrian courts. It is necessary to
settle what will happen in those cases. It would be an unrealistic solution for
them all to be reviewed afterwards. However, if a citizen living in
Transdniestria does not agree with the decision taken by the Transdniestrian
court, he or she should have the right to appeal to the constitutional Moldovan
authorities in order to have the case reviewed.
813. In
any instance where a citizen whose case has been decided in Transdniestria goes
to the Supreme Court of Moldova, he or she will obtain a review. And the
Supreme Court will declare the Transdniestrian decision unconstitutional. There
have been many such cases over the years. Civil cases are reviewed, so as to
ensure that the rights of the individual are preserved.
814. When
the Moldovan authorities heard of the deaths of Gusar and Ostapenko, they were
ready to investigate and to find out who were the culprits. They entered into
contact with the Tiraspol Prosecutor’s Office in order to find out who was to
blame for the murders. But the Moldovan authorities were met with a blank wall.
815. The
negotiations about the technical details of the Ilascu group’s release started
on
Immediately
after May 2000 when Smirnov said that he could agree to the review of the
Ilascu case by another country, the Moldovan authorities contacted
816. Every
thing done in the Ilascu case and in relation to the Transdniestrian problem in
general, was done in earnest, with the utmost seriousness, regardless of when
the events occurred. The witness himself studied the case-file several times.
Some important studies were carried out at the instigation of the OSCE. Any
preliminary criminal investigation would be complicated today, eleven years
later, but the Moldovan prosecuting authorities would try their best.
28. Victor
VIERU
817. The
witness has been the Vice-Minister of Justice since 2001. Before that he was a
lawyer. The witness never dealt with the Ilascu case. It was never raised in
any meeting that he attended.
The
witness was indeed a member of the Commission on the negotiation of status
headed by Mr Sturza. However, in meetings in which he participated, release of
the remaining members of the Ilascu group was never raised as an issue.
818. The
witness found, as a lawyer, that the decision taken by the Prosecutor General’s
Office in August 2000 to quash the order of 1993 opening a criminal
investigation against the persons responsible for the trial of Ilascu and his
colleagues was incorrect.
819. The
Moldovan authorities have never recognised documents issued by the
unconstitutional authorities of Transdniestria. The witness was of the view
that the protocol of May 2001, signed by Mr Voronin and Mr Smirnov, was not
legally binding. Firstly, the supreme law of the
29. Andrei
STRATAN
820. The
witness was the Director of Customs Control from 1999 until 2001. At the time
of giving evidence, he was Ambassador, Head of the Office for the Pact for
Stability in
821. The
Moldovan customs authorities have no authority de facto regarding the
transport of goods in the
Most
of the corporate entities in Transdniestria prepare their customs documents in
Arms
exports from
Arms
were exported from
822. The
Customs Department was not responsible for the issue of certificates of origin.
That came under the responsibility of the Chamber of Commerce.
823. Some
goods were manufactured partly in
824. No
joint customs posts were ever set up between the right and left banks of the
river. Since 1995
825. Energy
supplies from
826. The
witness did not know whether the transport of goods, destined for export from
Transdniestria direct to another country, would be registered. The witness
never had any such documentation before him, which suggested, to his mind, that
other ways of exporting such goods had been found and that there was
uncontrolled trade between Transdniestria and third countries, apart from
weapons. The Moldovan Customs Department has a brigade for the investigation of
illegal exports. But this brigade can only operate in territory that is
accessible to them and open to their control. Cross-border trade between
Transdniestria and the
827. The
witness did not know how it was possible that on bottles of brandy made in
828. The
Moldovan Customs Department does not operate any customs control on the right
bank of the
30. General
Boris SERGEYEV
829. The
witness was born on
830. The
mission of the ROG is twofold: Peace-keeping force (PKF) and units responsible
for guarding, and gradually repatriating to the
831. As
to the PKF, there are about 360 persons: two battalions and an aviation group.
The battalions alternate on duty and, when on duty, they are subordinate only
to the Joint Command of the PKF. The Russian PKF battalions are
organisationally dependent on the ROG. These battalions are located separately from
the ROG troops, and have their own command centre. Other units of the ROG are
not involved in the PKF and never were. The Russian PKF has no tanks. The
aviation group is responsible for
832.
The present headquarters of the ROG were formerly the headquarters of the
Fourteenth Army. The overall number of staff in the ROG was at the time of his
giving evidence less than 1,500 persons, comprising all military units.
833. There
is a military airport in
834. There
is very little traffic at
As
to the security of the airport, the ground used for the landing and take-off of
heavy aircraft and helicopters of the Russian forces is protected by the
Russian forces. The territory of the aerodrome is nevertheless open, so the
Transdniestrians, if they wanted, could interfere. However, they do not
interfere and similarly the Russian forces do not interfere with the way the
Transdniestrians use their part of the airport.
835. The
withdrawal of the ROG should have been completed by the end of 2002. It has now
been put back to the end of 2003. At present, equipment from the warehouses in
Kolbasnoye was being transported. 69 trips were required for the supplies and
ammunition, and another 15 for military equipment. This would take until the
end of 2003. The witness stated that he preferred not to say why the withdrawal
had taken so long, as making a statement on this issue would be beyond his call
of duty. The timetable was fixed by the President and the Ministry of Defence.
The witness only had to implement their decisions.
Withdrawal
to
836. The
witness stated that he would contact the Transdniestrian authorities regarding
the withdrawal only if he was directed to do so in each individual case by his
superior authorities. The process is often hindered by the Transdniestrian
authorities, but at present they have undertaken to cooperate and to let the
transport pass. The ROG offered compensation to the “MRT” for the withdrawal,
either by writing off debts or by transferring non-military assets to them.
837. The
OCSE performs inspections both at the places where the equipment is loaded for
transportation, and in
838. ROG
personnel can only move around if authorisation is given by the
Transdniestrians. The same authorisation is needed for importing goods and
supplies. Express authorisation is also needed from the Transdniestrian
authorities to use railroad and road transportation, both in and out. The ROG
is required to submit notice of every proposed movement, with details about the
vehicle. Otherwise the Transdniestrian authorities detain or block cars and
transport vehicles.
The
witness stated that at the time of giving evidence, there were three vehicles
detained illegally by the Transdniestrian authorities.
839. The
ROG held no joint exercises with the Transdniestrian armed forces.
840. Whenever
the need arose to contact the Transdniestrian authorities, the hierarchy in
841. The
ROG does not lack military supplies and ammunition and does not need to bring
in any fresh material of that kind. Other supplies for maintenance purposes
(e.g. fuel) come from various places - from the
842. The
Transdniestrian authorities consider that, following the break-up of the
843. In
1992 Mikhail Bergman was the military commander in
844. The
Fourteenth Army was created in 1956, as part of the
The
witness did not know anything about General Lebed’s election to the
Transdniestrian parliament in 1993. After
845. The
uniform of the ROG has a chevron on the sleeve saying
846. The
ROG holds joint exercises with the Moldovan armed forces, in central
The
cooperation with
847. The
witness was subordinate to the commander of the
848. Soldiers
guarding ammunition stores are issued with a manual explaining when they can
open fire. There has never been any question of opening fire on Moldovan
troops.
31. Colonel
Alexander VERGUZ
849. The
witness was born on
850. There
had been three instances in 2002 of Transdniestrian authorities seizing ROG
vehicles with supplies and holding them illegally.
851. The
ROG’s main function in Transdniestria was to maintain order within the ROG
forces; it was not involved in political issues. The ROG was stationed outside
Russian territory, and dealt only with things that arose within the ROG. The
main tasks of the ROG were guarding the arms and ammunition stores and training
military personnel. The PKF’s task, to keep order in the security zone, was
directed towards the “outside world”, but the PKF troops were not a part of the
ROG; they were a separate force.
852. The
witness has been serving in
853. There
was no transfer of weapons, but weapons were forcibly seized because the people
were in revolt. It was unforeseeable. Women and children came and, under cover
of their intervention, the seizure of weapons took place. The soldiers who were
under a duty to guard the weapons could not possibly shoot at women and
children. The situation was truly exceptional. The people who did it were
desperate: there was a war; they needed to defend their homes. Lorries were
also used to break into stores that were protected by mines. It would have been
impossible to recover the seized weaponry without provoking a combat situation.
There were no seizures of weapons before the armed conflict broke out.
854. The
loss of weapons was categorised as robbery or theft, and proceedings were
started to investigate each and every incident. The witness stated that he was
not aware of the outcome of these criminal proceedings.
855. Mikhail
Bergman was the Commandant in 1992. The building of the Commandatura
was situated in the Kirpichny proezd, about one kilometre away from the HQ. It
was under full control of the Russian military at that time; it could not be
shared with any Transdniestrian authorities.
32. Lieutenant-Colonel
Vitalius RADZAEVICHUS
856. The
witness was born in
857. The
movement of transport in Transdniestria was difficult. Recently three transport
vehicles being sent to
858. Olga
Capatina served in the ROG under the name of Olga Suslina. The witness thought
she was an agent of Smirnov.
859. The
witness denied that the marines or the Alpha Group of the FSB were ever
deployed in Transdniestria.
33. Colonel
Anatoli ZVEREV
860. The
witness was born in 1953 in the
861. The
joint peace-keeping forces were established by virtue of the Agreement of 1992
between the Moldovan and Russian Presidents. The Russian part of the
peace-keeping forces was made up of 294 personnel, 29 vehicles, and 264 rifles.
It also had 17 armoured vehicles, stationed at the posts of the PKF and used
for communication. The guns were Kalashnikov machine-guns and Makarov pistols;
there were no heavier weapons, like grenade-launchers, flame-throwers,
anti-tank missiles, etc. All vehicles and servicemen of the PKF bore special
insignia. They were allowed to travel around freely - as stipulated by the 1992
Agreement. The Russian Peace-keeping forces and the ROG were entirely separate.
The senior positions in the PKF were occupied by officers from
862. The
PKF’s duties were to prevent the transport of arms, explosives and drugs, and
to ensure law and order in the security zone.
The
Moldovan and Transdniestrian forces were responsible for monitoring and
preventing actions by destructive forces from their respective sides. In
1992-1993 the tasks of the PKF were different: to stop the armed conflict, to
separate the combatants, to take away the arms and help to restore order. At
present they were maintaining peace and monitoring the implementation of the
agreements.
863. The
witness’s immediate superior was the Joint Control Commission (JCC), which was
set up by the same 1992 Agreement. The JCC was composed of three delegations:
one from the
34. Lieutenant-Colonel
Boris LEVITSKIY
864. The
witness was born on
The
witness was the President of the court, and the only judge. The place of the
second garrison judge remains vacant. The witness was dealing with
administrative, civil and criminal cases as well as military disciplinary
offences. As a military judge, he was subordinate to the Judicial Department of
the Supreme Court - not to the ROG or their commanders, or to the Ministry of
Defence or Ministry of Justice.
The
military court which existed in Transdniestria in the days of the Fourteenth
Army was transferred to the jurisdiction of the
865. The
ROG had no direct contacts with either the Moldovan or the Transdniestrian
judicial authorities. If anyone were to escape to Moldovan territory, the ROG
would have to seek that person’s extradition through the Ministry of Defence
and the Ministry of Foreign Affairs in
The
witness stated that the Transdniestrian authorities prevented the free movement
of the ROG’s military personnel. For instance, he was himself one day stopped
in his car when travelling to Kolbasnoye, and was prevented from getting there.
35. Lieutenant-Colonel
Valery SHAMAYEV
866. The
witness was born on
867. As
Prosecutor of Military Unit 14101 the witness was directly responsible to the
Military Prosecutor of the
The
witness’s duties were to oversee compliance with the law in the ROG, and to
investigate criminal offences committed by ROG military personnel, not those
committed by local civilians. The witness had had no cases of theft, robbery or
the illegal transfer of arms or equipment.
868. The
ROG’s military prosecutors did not generally have direct contacts with either
the Moldovan or the Transdniestrian judicial authorities. The witness did not
have any special instruction on how to deal with the Transdniestrian authorities.
The
only case involving any co-operation had occurred in 2002. A ROG soldier and
some under-age civilians were suspected of beating up an elderly person, who
had died. The law enforcement bodies in
As
the witness did not lay any charges against those civilians, he did not
institute proceedings against them, but the local prosecuting authorities did
bring a case against the local suspects before the Transdniestrian courts. The
witness was not aware of any other such instances of cooperation.
869. The
witness stated that the ROG’s personnel had no problems moving around in
Transdniestria; he himself could move around freely in his car. They could also
travel freely to the other side of the river, with the permission of their
superior officer.
870. The
witness was aware of the three vehicles detained illegally by the
Transdniestrian authorities. No investigation had been conducted into the case,
because the military prosecutor only has jurisdiction over Russian military
personnel. The witness knew that the Command was trying to negotiate their
return. Likewise the theft of arms from the Russian Army by Transdniestrian
militia would not fall within the witness’s powers. He would investigate if it
were uncertain who had committed the theft but, once the evidence established
that it was Transdniestrian people he could not take the matter further. He
would send the file to
871. The
witness could not contact the Moldovan authorities directly, unless he had
special permission.
36. Vasiliy
TIMOSHENKO
872. The
witness was born on
873. The
Fourteenth Army headquarters moved to
The
witness’s job was to oversee the law and order in the Fourteenth Army. The
jurisdiction extended only to the military - previously of the Fourteenth Army,
now of the ROG - not to civilians or the Transdniestrian militia. If there were
an assault on a Russian serviceman by a Transdniestrian civilian, that would be
investigated by the Transdniestrian prosecuting authorities. In practice the
Transdniestrian authorities always acted on their own,
and did not ask for Russian participation. The ROG’s military prosecutors would
normally investigate suspected connivance by military personnel, including
circumstances where the actual theft had been carried out by civilians and, if
there were sufficient evidence of connivance by military personnel, they would
go ahead with a prosecution. In the event of theft of army property by the
Transdniestrian militia with the connivance of Russian military personnel, the
ROG military prosecutor could thus prosecute the latter but not the former. But
no such facts had occurred in normal times. The ROG’s military prosecutors
investigated cases against servicemen when arms and equipment were taken from
the Russian military, but only during a conflict. And during the 1991-1992
conflict there was in fact no supply of military equipment to outsiders by
Fourteenth Army military personnel.
874. The
Commandatura building had detention facilities. It was under the
supervision of the prosecutor’s office and also subject to the garrison head of
the Fourteenth Army. No civilians would be detained there. The Commandatura
was disbanded in 1996, and now the Transdniestrian prosecutor’s office was
situated there.
875. The
witness gave the following account of the applicants’ arrest and detention.
When the conflict broke out, a group of terrorists began operating in the
region, the Bujor group. Some prominent persons, like Gusar, a member of the
Transdniestrian militia, Ostapenko and others were killed, and their funerals
turned into massive demonstrations. These people were killed by the Chairman of
the Popular Front Ilascu and the circumstances in which these people had been
shot and burned were known to the whole town.
Therefore,
Mr Chariev, the Transdniestrian prosecutor, made a request to the commander,
General Lebed, to place the terrorists in the military premises for a while, in
order to prevent public revenge. General Lebed refused permission. The witness,
as prosecutor, inspected the guard-house (date not recalled). He noticed that
in one wing there were three or four cells partitioned off and, instead of a
ROG escort and guard, there were Transdniestrian police. There was also a
separate entrance for access to the wing where the applicants were held.
Mikhail Bergman told the witness that he had given permission for the
terrorists to be held temporarily at the ROG guard-house, to protect their
lives and health from the mob. The witness drew his attention to the fact that
he had broken disciplinary regulations and directed that the guard-house be
vacated immediately, which Mikhail Bergman refused to order. The witness then
informed General Lebed about this, who became very
angry with Mr Bergman. The witness went the next day to see Mr Bergman in order
to use his powers to deal with the breach. But the cells had already been
emptied. Therefore, the applicants were only kept there one or two days.
Bergman
was wrong to allow the detention of these civilians in the Commandatura
and their supervision and interrogation by the Transdniestrian militia. No
disciplinary proceedings were instituted against Bergman, because this was a
minor disciplinary infringement which was corrected almost immediately.
876. The
applicants were not transferred to the Moldovan authorities for trial, as this
was a time of war. These people had blood on their hands and had to face
justice for what they had done. If the applicants had been released, it was not
certain they would have been punished. Emotions in the population were running
high.
877. After
the collapse of the
On
878. The
Russian Army sleeve chevrons and shoulder flashes were introduced in 1994;
before that the insignia were those of the Soviet Army. The Transdniestrians
had been using their flag and symbols since 1992.
879. There
had been no occupation of
880. When
the conflict started in 1992, the ROG continued to maintain good communications
with the Moldovan military. When the premises of the Fourteenth Army near
Bender were hit by shells from the Moldovan side, the witness called them on
the telephone to tell them that they had hit the ROG. After that, the Russian
troops opened an investigation into the bombardment. The file was sent to
881. Neither
the Fourteenth Army nor its tanks were involved in the armed conflict. There
was an incident when two tanks were hijacked by the Transdniestrians and driven
onto the bridge. The Russian forces tried to stop them, and one of them was hit
from the Moldovan side and set on fire.
882. The
witness had never heard about 40 unarmed Moldovans being killed in a bus
in Bender near the fortress. But he did hear about an ambulance being shot at
by the Moldovan armed forces, an attack in which a pregnant woman and a nurse
had died. He also heard about other atrocities committed by the Moldovan forces
- for example, the incident about one month later when the Moldovan forces
bombed inhabited settlements. The Moldovan planes bombed the town of
883. The
witness was not aware of incidents when the Fourteenth Army supplied arms to
the Transdniestrian authorities or armed civilians. The Fourteenth Army
retained all its military hardware; nothing was handed over. No theft of
Fourteenth Army military property occurred during the 1991-1992 period. There
were four cases of seizure of military property at the beginning of the armed
conflict. The witness sent these cases to the Transdniestrian prosecutor, as it
was not possible to send the file on to the Moldovan authorities.
884. The
witness knew General Costas, former head of the Moldovan DOSAAF (Voluntary
Society to Support the Army, Air Force and Navy). The DOSAAF of Moldova had a
lot of military equipment for training - planes, tanks, armoured vehicles, etc.
It had a military range where it would give people training in how to drive
tanks, make parachute jumps, fire and reload cannons, and so on. The Moldovan
DOSAAF left their equipment to
885. The
witness knew personally Mr Nosov, the first deputy to the Chief Military
Prosecutor, but was not aware that Mr Nosov had come to
37. Vladimir
MOLOJEN
886. The
witness was the General Director of the Department of Information Technology
(DIT) of the Government of Moldova. He had held this post for two and a half
years. Before that he was the Head of the Department responsible for
citizenship documents in the Ministry of the Interior. In 1991 and 1992 he was
the Deputy Minister of the Interior.
887. The
witness’s Department delivers passports and part of its work is drawing up the
register of Moldovan citizens. As far as people living in Transdniestria are
concerned, documents are delivered confirming that they are Moldovan citizens.
The register of Moldovan citizens does not yet include all citizens because the
establishment of the register is a ten-year programme, continuing until 2005.
Citizens wanting a passport will apply to passport offices which exist in
various places in the country. This applies to citizens living in
Transdniestria as well. Officially there is no such thing as a Transdniestrian
passport. There are rumours to the effect that one is being planned. The
Moldovan DIT has no contacts with the Transdniestrian authorities as regards
the issue of passports.
888. The
DIT of
Any
person who wants the establishment or renewal of a Russian passport would have
to go to the Russian Embassy. According to the Moldovan statistics there are
more than a thousand Russian citizens residing in
The
witness pointed out that at the time of giving evidence, according to Moldovan
law, a person could only hold one citizenship.
Consequently, if a Moldovan citizen took out the citizenship of another
country, then they would be expected to send a request to the DIT for
cancellation of their Moldovan citizenship. In exceptional cases, by virtue of
a presidential decree, a Moldovan citizen could have dual citizenship. Only
Moldovan citizens could work in the public service and be a civil servant.
889. Telephones,
both land and mobile, come under the Department that deals with communications,
not the Information Technology Department. The DIT has no contact with the
telephone people. The witness did not know whether there was a common telephone
system for
890. Mr
Smirnov does not hold Moldovan citizenship and has never asked for it. There
was a protocol of
891. In
1992 the majority of the population in
A
person possessing two passports would be offered a choice. But he or she would
remain a Moldovan citizen until the choice had been made, despite having two
passports at the same time.
892. A
telephone call from Chisinau to
893. The
question whether a residence permit could be refused to someone who has
committed a crime was not a matter for the DIT, but for the Immigration
Department. The witness knew however that Moldovan legislation provided for the
refusal of a residence permit to a foreign applicant who had committed a crime.
Concerning
the issue of a Moldovan identity document to Mr Ordin, a member of the Supreme
Soviet of Transdniestria regarded as a danger to the national security of
38. Ion
COSTAS
894. The
witness was the Minister of Defence of Moldova from February 1992 until
The
witness became a General in the Soviet Army in 1984. He is a graduate of the
Air Officers’ Institute. He was a military pilot. He graduated from the
From
895. In
1992 the Moldovan side started recruiting people for the defence of the realm
against the forces of Smirnov.
The
Transdniestrians had nine thousand militiamen trained and armed by officers of
the Fourteenth Army. These officers were moved to the reserves and appointed
commanders of platoons and battalions of the OSTK police. In addition, there
were five to six thousand volunteers who came forward after an appeal was made
on Russian television for fighters to go to Transdniestria to support the
cause. These volunteers came from all over the
This
is without talking about the arms and ammunition which were available on both
sides. There were no tanks at all on the right side of the river - no artillery
of the Grad-type, mobile missile launchers or heavy shells. On the left side of
the river they had three battalions of Grad-type artillery, missile launchers
and grenade launchers. They had aircraft from the DOSAAF Organisation and
helicopters and tanks of the Fourteenth Army.
896. At
a meeting that President Snegur had with Mr Gorbachev in 1990, the latter made
it clear that, unless
897. As
to the presence of Russian troops in
898. The
witness stated that he held information from the General Staff that in 1990 to
1991, when the
899. DOSAAF
was a civic organisation composed of all persons fit for combat, from the age
of fourteen to the age of sixty. It included therefore the whole society and
was an immense organisation, with a permanent structure. In the
There
were no tanks, helicopters, missile launchers and the like available to DOSAAF
in Soviet times. There was not much weaponry made available to that
organisation; it was mainly for training.
The
CIS, after it was set up, had armed forces, with a command led by
representatives of the Russian Army. Marshal Shapashnikov was the Commander and
also the Minister of Defence of the CIS. This Minister was appointed in
accordance with a proposal made by the President of the
All
the top commanders of CIS troops were from
900. Marshal
Shapashnikov, Commander-in-Chief of the united armed forces of the CIS, did not
respond to the letter sent to him in April 1992 by the President of Moldova,
drawing his attention to the fact that CIS military forces were participating
in the transfer of arms to the separatists.
The
policy which he was pursuing was designed to keep
When
Lebed took over the Fourteenth Army, a substantial transfer of weapons
occurred, including a lot of anti-personnel mines, to the separatists by the
Fourteenth Army. Stockpiles of arms were moved from Kolbasna. In 1990, when he
was the Minister of the Interior, the witness took part in a meeting with
General Iakovlev, Commander of the Fourteenth Army and the Moldovan Prime
Minister Muravschi. As regards the separatists, Iakovlev said that he had
received specific instructions from the Russian Ministry of Defence to provide
arms to the militia in Transdniestria. In reply to Mr Muravschi, who wanted to
know if that was a warning, General Iakovlev said: “No, it is just a fact that
10,000 Kalashnikovs have been transferred to the militia for the defence of the
Transdniestrian region.” General Iakovlev added that he had been given
instructions to resist attempts by
The
transfer of weaponry was therefore inevitable. Everything was well organised.
The
witness pointed out that civilians cannot lay mines;
this specific task can only be performed by professionals with military
training. After the conflict,
901. The
Ministry of Defence of
902. The
witness had not wanted to retire; it was the decision of Parliament and
President Snegur, who were saying that his departure was required by
903. There
was an incident in which Moldovan aircraft dropped bombs on a village in
Transdniestria. There were two air missions, involving four units, with two
aircraft taking part on each occasion. When the order came through to stop the
separatists crossing the bridge, the order was given to bomb the bridge. The
aircraft used were not properly equipped for bombing missions. The bombs were
dropped but did not fall on the bridge. There were tanks on the bridge. It was
not necessary to be a military officer to identify whose tanks they were; it
was clear that the tanks and the soldiers were from the Fourteenth Army. They
had deliberately put the soldiers on reserve, and then called on them to man
the tanks. The people manning those tanks were not amateur cyclists. Only a
professional could manoeuvre a tank. They fired on the Moldovan forces. It was
all filmed and recorded.
904. The
military action could have been avoided had the Russian side not provoked and
supported this invasion. The conflict was the deliberate decision of the
Russian leadership at the time.
905.
When the
906. General
Lebed said many times that his Fourteenth Army was able to reach
907. The
separatists in Transdniestria in 1991 to 1992 did not have much difficulty in
restructuring their manufacturing lines in the existing factories there in
order to produce arms. Probably by 1992 they were already able to manufacture
arms of their own.
The
Moldovan air force had Mig-29 aircraft combat. The Commander-in-Chief of the
Armed Forces was the President, President Snegur, and the General Staff was
under General Creanga. The witness denied having spoken to Mr Plugaru on the
telephone in relation to the use of combat aircraft, since Mr Plugaru was not
on that level.
908. The
witness stated that he had never received any reports alleging ill-treatment by
Moldovan soldiers of the civilian population and that he had no power anyway to
investigate such matters.
909.
After the bloodshed had stopped,
39. Valentin
SEREDA
910. At
the time of giving evidence, the witness had been the Director General of
Prisons in
911. There
are no agreements for judicial cooperation in the penitentiary field between
912. The
institution which treats patients for tuberculosis in Tighina had its water and
electricity supplies cut off by the Transdniestrian authorities. Moldovans sent
a diesel energy plant and water tanks there. Cars visiting from
913. There
is not one single prisoner detained in Moldovan prisons on the basis of a
decision by a Transdniestrian court. This is so even in Moldovan institutions
in Tighina. Similarly, no person is detained in a Transdniestrian prison on the
basis of a Moldovan court decision.
914. The
witness came from Tighina, but he had never visited any prisons there during
the last fifteen years. However, he thought that there were no major
differences as regards the conditions of detention, prison food, medical
assistance, and so on, between
915. If
a prisoner from
916. In
2002
917. During
the cross-examination by the applicants’ lawyers, the witness was informed that
a transfer of detainees occurred between the
In
particular, the applicants’ lawyers put forward the case of V.C., who was born
in 1968, arrested in the “MRT” in 1992 and transferred in 1993 to
In
response to this information, the witness stated that he was not aware of that,
and that he could not be, as he was only aware of transfers from or to the
territory controlled by the Moldovan authorities. He was certain that those
transfers were not effected through or with the
authorisation of Moldovan institutions and assumed that they were arranged
directly between the authorities of Transdniestria and those of the
40. Victor
BERLINSCHI
918. The
witness was a Member of Parliament from 1990 until 1994 and Chairman of the
Parliamentary Committee on fighting crime. At the time of giving evidence, he
was a practicing lawyer and no longer a Member of Parliament.
919. The
Parliamentary Committee had no involvement with the Transdniestrian conflict.
The witness himself had no direct knowledge of the Ilascu case. He withdrew
completely from politics in 1994.
He
was however involved in the discussions in 1991 until 1992 with the
Transdniestrian leadership to resolve the conflict. But they said that they had
their own armed forces and would do their own job, and the discussions came to
nothing.
41. Constantin
OBROC
920. The
witness was Deputy to the Moldovan Prime Minister from May 1990 till June
1992. From 1993 until 1996 he was an adviser to President Snegur on local
administration. From 2002 onwards he had been an independent consultant. As
Deputy to the Prime Minister, he was dealing mainly with problems of local
administration. There were three Deputies to the Prime Minister in the
Muravschi Government. The witness was appointed head of the Parliamentary
Committee dealing with the negotiations with the Transdniestrian regime. As one
of its last acts, this Committee managed in 1992 to bring Transdniestrian
parliamentarians to the Moldovan Parliament. Then the armed conflict broke out.
921. The
witness did not resign of his own accord in June 1992. The whole Muravschi
Government was dismissed; there was a crisis between Parliament and the
Government because of the Transdniestrian situation.
The relation between
922. The
witness did not have any information about the distribution of arms by the
Fourteenth Army to the Transdniestrian population.
However,
the participation of the Fourteenth Army in the conflict was a well known fact.
It was fully documented in the press. The tanks of the Fourteenth Army, in
particular, were involved. The witness was not in the field, he did not see the
military operations himself, so that he could not describe directly to what
extent the Fourteenth Army participated, how many soldiers and so on. But it
was quite clear that it happened; everyone knew about it.
923. The
witness did not take part in any negotiations with the Russians, but with the
Transdniestrian people. The Parliamentary Committee he headed brought together
elected parliamentarians from Transdniestria, the
924. The
witness’s opinion was that the Ilascu trial was the consequence of a political
game on a large scale. There were no clear reasons for their trial. There had
been an exchange of prisoners on both sides, but this group had been excluded.
If
the Russian side had wanted the release of the Ilascu group, this would have
happened.
925. The
interests in Moldovan territory went back more than two centuries, to the time
of the Russian-Turkish war. There had been so many Slavs, i.e. Russians and
Ukrainians, living in
The
activities on the left bank were promoted and coordinated by the Soviet
authorities. President Gorbachev sent his representative, Marshal Achrameyev.
926. The
witness came up with a proposal to resolve the Transdniestrian
problem: give the Transdniestrians a degree of power to govern themselves,
so as to allay their fears and to satisfy them. The witness suggested that the area
be called the Transdniestrian “Region” (whereas they now call themselves a
Republic), that there be a common currency and a common responsibility for
foreign relations for the whole country of Moldova, that the Transdniestrians
be allowed to have some symbol of their own, such as a flag, and that they have
some military forces under their authority. A similar scheme was proposed for
Gagauzia. The plan also involved dividing the Regions into counties but
preserving
Originally,
the point of view of the Transdniestrian authorities was the same as that of
the Moldovan authorities. When the
Concerning
the recognition issue, it was difficult to adopt a strictly legal, formalistic
approach, to the effect that since the lawfulness of the Transdniestrian regime
is not recognised by the Moldovan Government or the international community,
927. The
witness did not know anything about the applicants being allegedly Moldovan
intelligence agents in Transdniestria.
928. No
one in the Government was in favour of the use of force in order to solve the
Transdniestrian conflict. But when the militia premises and other buildings
were occupied in the beginning,
929. Assistance
was provided by the central Moldovan Government and local authorities to the
families of the Ilascu group. In his position as presidential adviser, the
witness had received Mrs Ilascu on several occasions and taken her to see the
President of Moldova.
930. One
objective of the Yeltsin/Snegur Agreement of
42. Mihail
SIDOROV
931. At
the time of giving evidence, the witness was a Member of Parliament and
Chairman of the Committee for Human Rights and National Minorities.
The
witness started his career as a professional judge. For fifteen years he worked
in the judicial system of
932. When
he was elected Member of Parliament in 1994, the chapter in his life concerning
his position as former Head of the Justice Directorate in Transdniestria was
closed. No one on the Central Election Committee raised any objections. There
the witness did not hear anything of the Ilascu case.
The
fact that for a short while he was at the service of the separatist regime in
Transdniestria has not been an obstacle for the witness in his subsequent
career in
933. In
May or June 1998, when the witness was Ombudsman, the wives of the Ilascu group
came to see him. The witness and his colleagues advised them that they had no
real means of solving the problem and that they would be better served in going
to see the OSCE Mission. The witness then worked with the OSCE. Other citizens
from Transdniestria came to see the witness with problems, but the Ombudsman’s
office was not capable of solving these problems without the OSCE.
934. The
Moldovan Government had no power to influence the Transdniestrian regime in
order to secure the release of the Ilascu group. After the illegal regime
created its own administration, including courts, there was no contact, no
official channel through which the Moldovan authorities could influence them.
Four years after the trial, there were attempts to do something. Before that it
would have been pointless, because
The
witness took part in international meetings of Ombudsmen because he took the
view that
935. In
March 1994, just after Mr Ilascu had been elected as a Member of Parliament for
the first time, the Parliament prepared the conditions for him to serve as
Member of Parliament. At that time the Ilascu file had a political dimension.
If one viewed the case only from a strictly legal point of view, perhaps one
could have acted in a quicker and more constructive way.
Mr
Ilascu’s release was the result of a political move; it did not follow from any
measure by the legal authorities.
The
Government did not have any realistic possibility of doing anything about the
Ilascu case. It could not deal with it as a matter of priority. In 1997 the
witness was nominated to act with the Deputy Minister of Justice,
Mr Sturza, to deal with the Ilascu problem. There was a meeting between
Mr Sturza and the so-called Minister of Justice of Transdniestria. This
was a purely protocol meeting. It did not change anything. There were no
relations afterwards. If the meetings had continued, the Ilascu problem would
have been raised, but things did not happen that way.
936. The
witness could not remember which of the three Ombudsmen dealt with the Ilascu
case. It was during the first months of the Ombudsman’s office. The witness had
meetings with the OSCE at which he raised the issue of the Ilascu case. As a
parliamentarian he did not approach any international organisations about the
Ilascu case. His opinion was that they were not in a position in
937. The
witness was not aware that a judgment of
938.
The witness had never seen the Ilascu file. From the information he had, it
seemed to him that the main provisions of criminal procedure were fulfilled –
that is to say, the accused were charged and indicted, the defence had access
to the court file, evidence was taken from witnesses, proof of the alleged
conduct was adduced, and there was a hearing before a court at which the
defendants were present. From the procedural point of view, it appeared to the
witness that all the standards of criminal procedure were fulfilled. The
witness admitted that the judgment of the trial court was quashed as being
unconstitutional and agreed that that decision itself needed to be implemented.
He thought that an appeal or review court should study the whole file.
As
regards the victims of the alleged crimes, the witness’s opinion was that the
decision in this case would be linked to the settlement of the whole
Transdniestrian problem.
939. In
so far as further action should be considered in terms of criminal procedure,
the witness saw two possible scenarios. Firstly, the Supreme Court of Moldova,
as the highest court in the land, would review the case. Secondly, one could
start from the premise that the facts did indeed prove that a criminal
prosecution should have been brought: there was a criminal investigation, evidence was assembled, and so on. On that
basis, the case should be referred to the Supreme Court for further study.
There should be a re-consideration of impartial evidence, outside the political
context. The witness was of the opinion that the Code of Criminal Procedure did
not include any provision for what was done by the Supreme Court in the Ilascu
case. In any event, he did not know of any other such cases in Transdniestria
and
940. The
witness was aware of the decision of August 2000 by the Prosecutor General to
quash the criminal investigation against the Transdniestrian prosecutors and
judges who had taken part in the Ilascu trial. In 1995 or 1996 the Moldovan
Parliament had a meeting with colleagues from
941. The
witness stated that at the time when he was Ombudsman there were three
Ombudsmen. He could not remember which one of them was specifically dealing
with the Ilascu case. If they had directly approached the Transdniestrian
administration, they would not have achieved anything. This was illustrated by
their efforts regarding the problems encountered by the institution which
existed for the treatment of prison inmates with tuberculosis in Bender. The
Transdniestrian local authorities had cut off the electrical and gas supplies
and the sewers. One of the Ombudsmen approached Mr Smirnov. But there was no
response at all. The Ombudsman’s office approached the OSCE, an international
organisation – the only entity with some influence in the region.
942. Courts
had been functioning in Transdniestrian towns for more than ten years; they had
ruled on more than 4,000 criminal cases and more than 10,000 civil cases. The
question therefore arose whether every such judgment should be annulled or not.
Either all these cases would be re-heard or there would be a simple review of
these cases on request, if necessary with a decision by the Supreme Court.
943. The
crisis of 1991 to 1992 was not the result of spontaneous acts. In 1989 a new
languages law was enacted in
Similar
events occurred in the Gagauzian region. Parliament was summoned in order to
settle the problem through peaceful means, but the Gagauzians and the
Transdniestrians decided to set up their own power structures. Parliament
thereupon declared these power structures unconstitutional. Consequently, as
from August 1990 there were three regions in
The
events in 1990 developed very fast. In October 1990 there was a march by
volunteers to southern
In
March 1992 the armed conflict flared up, first in Dubasari and then in Bender.
After that all the links of the negotiating process broke down. Parliament had
no access to the left bank. There were no relations between official structures
from 1992 onwards. It was only in 1994 that Parliament established a Committee
for re-establishing contact between the official structures of
944. The
witness took part in drafting the law on Gagauzia, which conferred an
autonomous status on this region in 1994. There was no military conflict
between Gagauzia and
945. Since
the end of 1990 there had been a separate judicial system in Transdniestria.
None of the judgments delivered by the courts in Transdniestria was recognised
by the judiciary in
946. The
witness underlined that Transdniestria exists de facto as a sovereign
State, with its own legislation, its own judiciary and its own processes for
the execution of judgments. It had recently created a
The
witness was of the opinion that there was no responsibility on the part of the
947. Referring to the influence other countries have over
Transdniestria, the witness emphasised that Transdniestria was a free market
place. Its most stable source of investment was German capital but that there
was also some Belgian investment in local enterprises. According to the
Transdniestrians, their currency was printed in
948.
949. In
November 1990 Parliament adopted a decision as regards the taking of measures
to stabilise the social and economic situation in
43. Pavel
CREANGA
950. The
witness was Deputy Minister of Defence in May/June 1992. He was then Minister
of Defence from 1992 until 1997. At the time of giving evidence he was retired.
Before his service as Deputy Minister of Defence in 1992 he had returned to
From
1990 until 1992 he worked at the Military Department. From 1997 onwards he had
not held any official posts.
951.
After the declaration of Moldovan independence, some people in
It
was no secret that the separatists received support from
The
Moldovan armed forces in 1992 comprised approximately ten battalions, that is,
six thousand active troops on a permanent basis and that was the position until
the end of the conflict. They were made up of troops from the Ministry of the
Interior and the police, and there were three detachments of volunteer forces.
That made a total of up to six thousand active troops. The Transdniestrian
forces also numbered about six thousand. The Russian Fourteenth Army had about
twelve to fourteen thousand troops.
The
Moldovan armed forces did not have the kind of equipment that the separatists
had. The Moldovan forces had one automatic weapon for every ten people in the
beginning. They did not have proper units.
The
Fourteenth Army provided the separatists with equipment and support. The
officers of the Popular Guards came from the Fourteenth Army and the Fourteenth
Army was supplying them with weapons.
The
witness went to see Iakovlev who told him that the Transdniestrians had
thousands of rifles. Under the guise of seizure, using children and women,
large numbers of weapons were handed over. About 30 tanks were transferred, 32
armoured personnel carriers, 24 artillery weapons, mortars, anti-tank
grenade launchers, anti-tank artillery and air defence units. The Commander of
the Fourteenth Army, General Lebed, declared on television that he had
personally called up and armed twelve thousand soldiers for the
Transdniestrians and that he personally had made the existence of their armed
forces possible. The operations of the Transdniestrian armed forces were
carried out under the control of officers of the Fourteenth Army.
The
tanks that appeared on the
The
witness stated that he had documents on the handing over of weapons to the
separatists by the Fourteenth Army and added that perhaps the documents were
still in the Ministry of Defence. One thing is a physical handover, a transfer.
A formalised transfer on the basis of official documents is quite another
thing. The separatists “seized” weapons from the Fourteenth Army by the use of
women and children. The tanks which had been seized with the help of human
shields were from the 183rd motorised infantry regiment and other units of the
Fourteenth Army. Under the disguise of a seizure using a human shield of women
and children, it was in reality a handover.
The
weaponry and equipment in question could not have been part of DOSAAF property.
DOSAAF did indeed have one million bullets, but only very light weapons. DOSAAF
did not have any combat weapons at all.
952. The
armed units of the Transdniestrians were better equipped than the Moldovan
units. They had tanks, whereas the Moldovans did not have one single tank. They
had more armoured cars than the Moldovans did. The Moldovans had powerful
artillery, for example the Uragan system which is capable of travelling
up to 27 km, but that was not used.
953.
954. As
to the shooting in the Tighina/Bender fortress, when the Moldovan forces
entered the city of
955.
The
Moldovan troops did have an air defence, but there was no collective defence
with the
956. The
volunteer groups fighting for
957.
958. During
the conflict, the Fourteenth Army was stationed at the
959. At
the time when the witness was Minister of Defence, there were agreements signed
between