(Application no. 48787/99)
This judgment is final but may be subject to editorial revision.
TABLE OF CONTENTS
the case of Ilascu and Others v.
The European Court of Human Rights, sitting as a Grand Chamber composed of:
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,
deliberated in private on 23 January, 26 February and
Delivers the following judgment, which was adopted on the last-mentioned date:
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.
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.
the applicants alleged that
1. The admissibility proceedings
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
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).
a decision of
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.
the witness hearings (see paragraphs 12 to 15 below), the parties were invited
by the President to file their final observations by
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
(b) The witness hearings
order to clarify certain disputed points and, in particular, the question
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.
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.
I. THE APPLICANTS
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
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.
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
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
dissolution of the
1. The dissolution of the USSR, the break-away of Transdniestria and Moldovan independence
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
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.
To date, the “MRT” has not been recognised by the international community.
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
Decree no. 234 of
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).
1989 onwards movements of resistance to Moldovan independence began to organise
clashes on a limited scale broke out between the Transdniestrian separatists
and the Moldovan police as early as November 1990 in eastern
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
applicants alleged that 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.
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.
the other hand, the Court notes that all the witnesses questioned on the
subject agreed that a Russian general had travelled from
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.
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
a decree of
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
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.
applicants further asserted that on
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
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.
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
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.
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.
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
Moldovan Government asserted that they had never claimed that the army of the
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
Russian Government argued that the former Fourteenth Army had been in
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.
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).
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”.
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”).
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.
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
Order no. 026 of
military units which had been part of the Fourteenth Army decided to join the
new army of 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.
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
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.
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
the first half of July 1992 intense discussions took place within the CIS about
the possibility of deploying a CIS peacekeeping force in
a CIS meeting held in
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).
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).
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.
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
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
agreement was not ratified by the authorities of 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.
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
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
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
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
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”.
a letter of
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.
Presidents advocated the rapid and fair settlement of the Transdniestrian
conflict by exclusively peaceful means based on respect for the principle of
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).
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.
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
ratification of the Convention by the
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.
Article 5 of the agreement, the sale of any type of military technology, weapon
or ammunition belonging to the military forces of the
to Article 7 of the agreement,
second agreement was approved only by the Moldovan Government, on
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”.
Court notes, firstly, that neither of the agreements of
further notes that, according to the witness evidence of Mr Sergeyev, the
commander of the ROG,
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”.
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.
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”.
withdrawal (transfer and decommissioning) of surplus ammunition and other ROG
equipment was planned to take place by
ratification of the Convention by the
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.
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.
to an OSCE press release, 29 railway wagons carrying bridge-building equipment
and field kitchens were moved out on
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
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).
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
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
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
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).
applicants alleged that a consulate of the
The Russian Government denied the existence of a Russian consulate in Transdniestrian territory.
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
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.
regard to the press articles submitted by the applicants mentioning the
existence of a consular office of the
applicants asserted that on
Resolution no. 1334 IGD of
politicians and representatives of the
their part, representatives of the “MRT” regime have travelled to
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
The other parties did not contest these facts.
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.
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.
is judicial cooperation for the transfer of prisoners between 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.
leaders have been awarded official distinctions by various institutions of 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).
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.
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
162. The Moldovan authorities have never officially recognised the organs of the “MRT”, as a State entity.
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).
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).
persons who had acted as senior officials of the “MRT” were able to return to
2. After ratification of the Convention by
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).
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).
is a single telephone system for the whole of
Moldovan Government’s information department issues identity documents
(identity cards) to all persons resident in
2001, under agreements with the World Trade Organisation, the Moldovan
authorities set up a chain of mixed Moldovan-Ukrainian customs posts along the
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.
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.
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
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.
second applicant, Alexandru Lesco, was arrested on
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
third applicant, Andrei Ivantoc, was arrested at his home on
fourth applicant, Tudor Petrov-Popa, was arrested on
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.
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
2. Detention of the first three applicants on the premises of the former Fourteenth Army
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.
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.
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 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.
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 and put back up at five in the morning.
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.
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.
first applicant remained in a cell at
second applicant was transferred from the Fourteenth Army’s garrison
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
fourth applicant was detained until the beginning of the trial at
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
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.
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
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.
authorities of the “MRT” did not respond to the judgment of
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
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”).
first applicant, although imprisoned, was elected a member of the Moldovan
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).
233. In 2001, at their request, Mr Ivantoc and Mr Lesco were likewise granted Romanian nationality.
C. The applicants’ detention after conviction
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.
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.
a letter sent in March 1999 to the Moldovan Parliament about the governmental
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.
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.
a letter to the Court of
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.
Ivantoc was refused a visit from his wife on
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.
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.
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
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.
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.
the above-mentioned letter of
these events, as appears from a letter of
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
negotiations between the
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
Sturza went one last time to
a letter of
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:
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
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.
a letter of
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.
Court has only the allegations of Mr Ilascu, a copy of Mr Smirnov’s
F. Steps taken after May 2001 to secure the other applicants’ release
Mr Ilascu’s release the representative of Mr Lesco submitted in a letter
received by the Court on
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.
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.
in Transdniestria on 18 and
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.
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
relevant provisions of the Minsk Agreement of
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,
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:
The High Contracting Parties hereby establish the Commonwealth of Independent States.
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...
High Contracting Parties undertake to discharge the international obligations
incumbent on them under treaties and agreements entered into by the former
Desiring to bring about as rapidly as possible a final ceasefire and settlement of the armed conflict in the Transdniestrian regions;
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:
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.
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.
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.
questions relating to the Fourteenth Army’s status or the stages and timetable
for its withdrawal will be settled by negotiations between 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
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.
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.
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.
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.”
“... 2. Article 6, with the exception of paragraphs 3 and 4 ...
Parliament of the
relevant provisions of the Moldovan Constitution of
“1. The Republic of
2. The Republic of
“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:
“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.”
“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.”
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: ...
status of the military formations of 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.
stages and timetable for the final withdrawal of the military formations of the
as long as Russian military formations remain in the territory of the
sale of any type of military technology, armaments and ammunition belonging to
the military formations of the
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.
of military aircraft inside the airspace of the
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.
manner of the transfer or sale of the immovable property of the military formations
a view to ensuring the withdrawal of the military formations of 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:
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.
aircraft may take off from
postal aircraft belonging to the Russian units may take off from
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).
of such requests and the authorisations needed for use of the
of the implementation of the present agreement will be carried out by the
representatives of the Ministries of Defence of 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.”
instrument of ratification of the Convention deposited by the
“1. The Republic of
“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.
for the use and transfer of property in the third category shall be laid down
parties have agreed to pay their debts to each other on
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.
ensure the rapid transfer of the immovable property, the representatives of the
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 APPLICANTS COME WITHIN THE JURISDICTION OF THE
A. Arguments submitted to the Court
1. The Moldovan Government
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.
the present case, the areas on the left bank of 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.
these measures had come to nothing, given that the “MRT” was an entity capable
of functioning autonomously in relation to
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
Government of 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).
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
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”.
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
Court must therefore ascertain whether
Court notes in the first place that
Court observes that in its decision on admissibility it held that the
declaration made by
question which arises is therefore whether, despite the above-mentioned
finding, the factual situation to which
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
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
when it ratified the Convention on
ceasefire agreement of
Court notes that after this period
Court accordingly sees in the declaration attached to the instrument of
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
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.
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.
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.
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
Court observes that it does not have jurisdiction to consider whether events
obligation to re-establish control over Transdniestria required
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).
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
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).
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:
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.
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.
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.
order to determine whether
II. WHETHER THE APPLICANTS COME WITHIN THE JURISDICTION OF THE
A. Arguments submitted to the Court
Government of the
Russian Government submitted that the acts complained of did not come within
the “jurisdiction” of the
had not been possible to honour the undertaking given by 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
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
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.
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
Government rejected the applicants’ allegation that 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
their written observations of
the hearing on
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.
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).
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
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.
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.
to the applicants, such acts, combined with the de facto control
exercised by the
relied on the Court’s case-law in the above-mentioned Loizidou v.
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.
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.
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
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
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
Court notes at the outset that the
ratification of the Convention by the
Court notes that on
also entered into negotiations with the
Court observes that during the Moldovan conflict in 1991-92 forces of the
former Fourteenth Army (which owed allegiance to 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.
the clashes between the Moldovan authorities and the Transdniestrian
separatists the leaders of the
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.
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.
remains to be determined whether that responsibility remained engaged and
whether it was still engaged at the time of the ratification of the Convention
ratification of the Convention by the
regard to the period after ratification of the Convention, on
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.
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 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).
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.
being had to the foregoing, it is of little
consequence that since
conclusion, the applicants therefore come within the “jurisdiction” of the
III. THE COURT’S JURISDICTION RATIONE TEMPORIS
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.
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”.
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
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.
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.
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
applicant submitted that the pardon decree signed by the “President of the MRT”
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.
Romanian Government submitted that since the Supreme Court of Moldova’s
B. The Court’s assessment
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
death penalty imposed on Mr Ilascu on
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.
Russian Government argued that the applicants’ allegations had nothing to do
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
applicant was sentenced to death on
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).
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.
Mr Ilascu was detained at the time when the Convention came into force with
regard to the
Ilascu was released in May 2001 and it is only from that date on that
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.
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.
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;
Russian Government submitted that the applicants’ allegations had nothing to do
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.
into account its conclusion above (see paragraph 352) that the responsibility
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.”
Russian Government confined their observations to the assertion that the
applicants’ allegations had nothing to do with the
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.
Russian Government submitted that the applicants’ allegations had nothing to do
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.
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.
addition, the Court notes with concern the content of the diplomatic note of
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.
the Court’s opinion, such remarks by the highest authority of a
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.”
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.
Gribincea did likewise for the other applicants in a letter received by 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.
Ilascu claimed 1,861 euros (EUR) for loss of salary and other allowances on
account of his detention from June 1992 until
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.
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).
Court reiterates that it has found violations of several Convention provisions
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.
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;
by eleven votes to six that there has been no violation of Article 3 of the
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
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;
by sixteen votes to one that
by sixteen votes to one that the
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;
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.
in English and in French, and delivered at a public hearing in the Human Rights
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.
PARTLY DISSENTING OPINION OF
JUDGE CASADEVALL, JOINED BY JUDGES RESS, BÎRSAN, TULKENS AND FURA-SANDSTRÖM
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.
ceasefire agreement of
the Court said, in view of the complexity of the factual situation, the
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).
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
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.
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
– 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.
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
have joined the dissenting opinion of Judge Casadevall but I would like to make
some additional remarks on the positive obligations of
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.
is obvious that there were different “phases” of more or less effective
political and judicial efforts to re-establish
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.
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
I am in agreement with the conclusion of the majority of the Court that the
responsibility of the
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.
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
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.
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.
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.
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.
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
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
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.
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.
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”.
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).
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.
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
I disagree with the majority that the applicants come under the “jurisdiction”
of the Moldovan Government and that
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.
all events I believe that the authorities of
DISSENTING OPINION OF JUDGE KOVLER
“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.
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.
Principality of Moldavia, which was created in 1360 after being detached from
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.
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.
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
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
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.
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
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).
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.
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.
has become clear firstly from the case-law of the
addition, ‘lawless’ areas have developed in separatist regions such as
a sense, the territorial reservation made by
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