Постановление ЕСПЧ от 23.02.2016 <Дело Мозер (Mozer) против Республики Молдова и России> (жалоба N 11138/10) [англ.] Часть 2

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  1. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

 

  1. In the report on its visit to Moldova between 21 and 27 July 2010 (CPT/Inf (2011) 8) the CPT stated that, following the refusal of the «MRT» authorities to allow members of the Committee to meet in private with detainees, the CPT had decided to call off its visit because a limitation of this kind ran counter to the fundamental characteristics of the prevention mechanism enshrined in its mandate.
  2. The relevant parts of the report of the CPT on its visit to Moldova between 27 and 30 November 2000 (CPT/Inf (2002) 35) read as follows:

«40. At the outset of the visit, the authorities of the Transnistrian region provided the delegation with detailed information on the five penitentiary establishments currently in service in the region.

In the time available, the delegation was not in a position to make a thorough examination of the whole of the penitentiary system. However, it was able to make an assessment of the treatment of persons deprived of their liberty in Prison No. 1, at Glinoe, Colony No. 2, at Tiraspol, and the SIZO (i.e. pre-trial) section of Colony No. 3, again at Tiraspol.

  1. As the authorities are certainly already aware, the situation in the establishments visited by the delegation leaves a great deal to be desired, in particular in Prison No. 1. The CPT will examine various specific areas of concern in subsequent sections of this report. However, at the outset, the Committee wishes to highlight what is perhaps the principal obstacle to progress, namely the high number of persons who are imprisoned and the resultant overcrowding.
  2. According to the information provided by the authorities, there are approximately 3,500 prisoners in the region’s penitentiary establishments i.e. an incarceration rate of some 450 persons per 100,000 of the population. The number of inmates in the three establishments visited was within or, in the case of Prison No. 1, just slightly over their official capacities. Nevertheless, the delegation found that in fact the establishments were severely overcrowded.

The situation was at its most serious in Prison No. 1. The cells for pre-trial prisoners offered rarely more — and sometimes less — than 1 m2 of living space per prisoner, and the number of prisoners often exceeded the number of beds. These deplorable conditions were frequently made worse by poor ventilation, insufficient access to natural light and inadequate sanitary facilities. Similar, albeit slightly better, conditions were also observed in the SIZO section of Colony No. 3 and in certain parts of Colony No. 2 (for example, Block 10).

  1. An incarceration rate of the magnitude which presently prevails in the Transnistrian region cannot be convincingly explained away by a high crime rate; the general outlook of members of the law enforcement agencies, prosecutors and judges must, in part, be responsible for the situation. At the same time, it is unrealistic from an economic standpoint to offer decent conditions of detention to such vast numbers of prisoners; to attempt to solve the problem by building more penitentiary establishments would be a ruinous exercise.

The CPT has already stressed the need to review current law and practice relating to custody pending trial (cf. paragraph 12). More generally, the Committee recommends that an overall strategy be developed for combating prison overcrowding and reducing the size of the prison population. In this context, the authorities will find useful guidance in the principles and measures set out in Recommendation No. R (99) 22 of the Committee of Ministers of the Council of Europe, concerning prison overcrowding and prison population inflation (cf. Appendix 3).

  1. The CPT recognises that in periods of economic difficulties, sacrifices may have to be made, including in penitentiary establishments. However, regardless of the difficulties faced at any given time, the act of depriving a person of his liberty always entails a duty to ensure that that person has access to certain basic necessities. Those basic necessities include appropriate medication. Compliance with this duty by public authorities is all the more imperative when it is a question of medication required to treat a life-threatening disease such as tuberculosis.

At the end of the visit, the CPT’s delegation requested the authorities to take steps without delay to ensure that all penitentiary establishments are supplied on a regular basis with medicines of various types and, in particular, with a suitable range of anti-tuberculosis drugs. The CPT wishes to be informed of the action taken in response to that request.

  1. Official health-care staffing levels in the penitentiary establishments visited were rather low and, at the time of the visit, this situation was exacerbated by the fact that certain posts were vacant or staff members on long-term leave had not been replaced. This was particularly the case at Prison No. 1 and Colony No. 2. The CPT recommends that the authorities strive to fill as soon as possible all vacant posts in the health-care services of those two establishments and to replace staff members who are on leave.

The health-care services of all three penitentiary establishments visited had very few medicines at their disposal, and their facilities were modestly equipped. The question of the supply of medicines has already been addressed (cf. paragraph 48). As regards the level of equipment, the CPT appreciates that the existing situation is a reflection of the difficulties facing the region; it would be unrealistic to expect significant improvements at the present time. However, it should be possible to maintain all existing equipment in working order. In this context, the delegation noted that all the radiography machines in the establishments visited were out of use. The CPT recommends that this deficiency be remedied.

On a more positive note, the CPT was very interested to learn of the authorities’ plans for a new prison hospital, with a region-wide vocation, at . This is a most welcome development. The Committee would like to receive further details concerning the implementation of those plans.

  1. The CPT has already highlighted the poor material conditions of detention which prevailed in the establishments visited and has made recommendations designed to address the fundamental problem of overcrowding (cf. paragraphs 42 and 43).

In addition to overcrowding, the CPT is very concerned by the practice of covering cell windows. This practice appeared to be systematic  remand prisoners, and was also observed in cells accommodating certain categories of sentenced prisoners. The Committee recognises that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners. However, the imposition of such security measures should be the exception rather than the rule. Further, even when specific security measures are required, such measures should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy; moreover, the absence of these elements generates conditions favourable to the spread of diseases and in particular tuberculosis.

It is also inadmissible for cells to accommodate more prisoners than the number of beds available, thereby compelling prisoners to sleep in shifts.

Consequently, the CPT recommends that the authorities set the following as short-term objectives:

  1. i) all prisoner accommodation to have access to natural light and adequate ventilation;
  2. ii) every prisoner, whether sentenced or on remand, to have his/her own bed.

Further, as measures to tackle overcrowding begin to take effect, the existing standards concerning living space per prisoner should be revised upwards. The CPT recommends that the authorities set, as a medium-term objective, meeting the standard of 4 m2 of floor space per prisoner.

  1. As the delegation pointed out at the end of its visit, material conditions of detention were particularly bad at Prison No. 1 in Glinoe. The CPT appreciates that under the present circumstances, the authorities have no choice but to keep this establishment in service. However, the premises of Prison No. 1 belong to a previous age; they should cease to be used for penitentiary purposes at the earliest opportunity.»

 

  1. Organisation for Security and Co-operation in Europe (OSCE)

 

  1. In its Annual Report for 2005, the OSCE referred to events in Transdniestria as follows:

«The Mission concentrated its efforts on restarting the political settlement negotiations, stalled since summer 2004. The mediators from the Russian Federation, Ukraine, and the OSCE held consultations with representatives from Chisinau and Tiraspol in January, May and September. At the May meeting, Ukraine introduced President Victor Yushchenko’s settlement plan, Toward a Settlement through Democratization. This initiative envisages democratization of the Transdniestrian region through internationally conducted elections to the regional legislative body, along with steps to promote demilitarization, transparency and increased confidence.

In July, the Moldovan Parliament, citing the Ukrainian Plan, adopted a law On the Basic Principles of a Special Legal Status of Transdniestria. During consultations in September in Odessa, Chisinau and Tiraspol agreed to invite the EU and US to participate as observers in the negotiations. Formal negotiations resumed in an enlarged format in October after a 15-month break and continued in December following the OSCE Ministerial Council in Ljubljana. On 15 December, the Presidents of Ukraine and the Russian Federation, Victor Yushchenko and Vladimir Putin, issued a Joint Statement welcoming the resumption of negotiations on the settlement of the Transdniestrian conflict.

In September, Presidents Voronin and Yushchenko jointly requested the OSCE Chairman-in-Office to consider sending an International Assessment Mission (IAM) to analyse democratic conditions in Transdniestria and necessary steps for conducting democratic elections in the region. In parallel, the OSCE Mission conducted technical consultations and analyses on basic requirements for democratic elections in the Transdniestrian region, as proposed in the Yushchenko Plan. At the October negotiating round, the OSCE Chairmanship was asked to continue consultations on the possibility of organizing an IAM to the Transdniestrian region.

Together with military experts from the Russian Federation and Ukraine, the OSCE Mission completed development of a package of proposed confidence- and security-building measures, which were presented by the three mediators in July. The Mission subsequently began consultations on the package with representatives of Chisinau and Tiraspol. The October negotiating round welcomed possible progress on enhancing transparency through a mutual exchange of military data, as envisaged in elements of this package.»

On the question of Russian military withdrawal, the OSCE observed:

«There were no withdrawals of Russian arms and equipment from the Transdniestrian region during 2005. Roughly 20,000 metric tons of ammunition remain to be removed. The commander of the Operative Group of Russian Forces reported in May that surplus stocks of 40,000 small arms and light weapons stored by Russian forces in the Transdniestrian region have been destroyed. The OSCE has not been allowed to verify these claims.»

In its Annual Report for 2006 the OSCE reported as follows:

«…The 17 September «independence» referendum and the 10 December «presidential» elections in Transnistria — neither one recognized nor monitored by the OSCE — shaped the political environment of this work…

To spur on the settlement talks, the Mission drafted in early 2006 documents that suggested: a possible delimitation of competencies between central and regional authorities; a mechanism for monitoring factories in the Transnistrian military-industrial complex; a plan for the exchange of military data; and an assessment mission to evaluate conditions and make recommendations for democratic elections in Transnistria. The Transnistrian side, however, refused to continue negotiations after the March introduction of new customs rules for Transnistrian exports, and thus no progress could be made including on these projects. Attempts to unblock this stalemate through consultations among the mediators (OSCE, Russian Federation and Ukraine) and the observers (European Union and the United States of America) in April, May and November and consultations of the mediators and observers with each of the sides separately in October were to no avail.

On 13 November, a group of 30 OSCE Heads of Delegations, along with OSCE Mission members, gained access for the first time since March 2004 to the Russian Federation ammunition depot in Colbasna, near the Moldovan-Ukrainian border in northern Transnistria. There were no withdrawals, however, of Russian ammunition or equipment from Transnistria during 2006, and more than 21,000 tons of ammunition remain stored in the region…»

The Annual Report for 2007 stated:

«The mediators in the Transnistrian settlement process, the Russian Federation, Ukraine and the OSCE, and the observers, the European Union and the United States, met four times. The mediators and observers met informally with the Moldovan and Transnistrian sides once, in October. All meetings concentrated on finding ways to restart formal settlement negotiations, which have nonetheless failed to resume.

The Mission witnessed that there were no withdrawals of Russian ammunition or equipment during 2007. The Voluntary Fund retains sufficient resources to complete the withdrawal tasks.»

In its Annual Report for 2008 the OSCE observed:

«Moldovan President Vladimir Voronin and Transnistrian leader Igor Smirnov met in April for the first time in seven years and followed up with another meeting on 24 December. Mediators from the OSCE, Russian Federation and Ukraine and observers from the European Union and the United States met five times. Informal meetings of the sides with mediators and observers took place five times. These and additional shuttle diplomacy efforts by the Mission notwithstanding, formal negotiations in the «5 + 2″ format were not resumed.

There were no withdrawals of Russian ammunition or equipment from the Transnistrian region during 2008. The Voluntary Fund retains sufficient resources to complete withdrawal tasks.»

In its Annual Report for 2009 the OSCE observed:

«Withdrawal of Russian ammunition and equipment. The Mission maintained its readiness to assist the Russian Federation to fulfil its commitment to withdraw ammunition and equipment from Transdniestria. No withdrawals took place in 2009. The Voluntary Fund retains sufficient resources to complete withdrawal tasks.»

Subsequent OSCE reports describe the confidence-building measures taken and note the various meetings between those involved in the negotiations concerning the settlement of the Transdniestrian conflict. They do not contain any reference to the withdrawal of troops from the «MRT».

 

  1. Other materials from international organisations

 

  1. In Catan and Others (cited above, §§ 64 — 73) the Court summarised the content of various reports by intergovernmental and non-governmental organisations concerning the situation in the Transdniestrian region of Moldova and the Russian military personnel and equipment stationed there during 2003 and 2009. It also summarised the relevant provisions of international law (ibid., §§ 74 — 76).
  2. In paragraph 18 of Resolution 1896 (2012) entitled «The honouring of obligations and commitments by the Russian Federation», the Parliamentary Assembly of the Council of Europe noted as follows:

«The opening of polling stations in Abkhazia (Georgia), South Ossetia (Georgia) and Transnistria (Republic of Moldova) without the explicit consent of the de jure authorities in Tbilisi and , as well as the prior «passportisation» of populations in these territories, violated the territorial integrity of these States, as recognised by the international community, including the Parliamentary Assembly.»

  1. On 10 May 2010 the International Committee of the Red Cross (ICRC) replied to a letter from the Permanent Mission of the Republic of Moldova concerning the applicant’s case, stating that an ICRC delegate and a doctor had seen the applicant on 29 April 2010. During their visit, they had met with the applicant in private and had been told that he had regular contact with his family and could receive parcels from them.

 

III. Relevant domestic law and practice of the Republic of Moldova

 

  1. The relevant provisions of the Constitution read as follows:

Article 114 Administration of justice

«Justice shall be administered in the name of the law only by the courts of law.»

Article 115 Courts of law

«(1) Justice shall be administered by the Supreme Court of Justice, the courts of appeal and the courts of law.

(2) For certain categories of cases special law courts may operate under the law.

(3) The setting up of extraordinary courts shall be forbidden.

(4) The structure of the law courts, their sphere of competence and legal procedures shall be laid down by organic law.»

  1. Section 1 of the Law on the status of judges (no. 544, 20 July 1995, as in force at the time of the events) reads as follows:

Section 1 Judges — bearers of judicial authority

«(1) Judicial authority shall be exercised only by the courts, in the person of the judge, who shall be the sole bearer of such authority.

(2) Judges shall be the persons constitutionally vested with judicial duties, which they shall exercise in accordance with the law.

(3) Judges of the courts shall be independent, impartial and immovable, and shall obey only the law.»

  1. Under Annexes 2 and 3 to the Law on judicial organisation (no. 514, 6 July 1995), as in force at the time of the events, six first-instance courts and one second-instance court (the Bender Court of Appeal) were created, empowered to examine cases originating from the various settlements on the territory controlled by the «MRT». On 16 July 2014 Parliament decided to close down the Bender Court of Appeal because it was examining a considerably smaller number of cases than the other Courts of Appeal. The judges working there were transferred to other Courts of Appeal, while the cases on its docket were transferred to the Court of Appeal.
  2. In accordance with section 1 of Law no. 1545 (1998) on compensation for damage caused by illegal acts of the criminal investigation bodies, the prosecution authorities or the courts, compensation may be sought in court where damage is caused by the unlawful actions of the criminal investigation bodies, the prosecution authorities or the courts within the framework of criminal or administrative contravention proceedings.
  3. The Moldovan Government submitted examples of past rulings by the Moldovan Supreme Court of Justice similar to the decision of 22 January 2013 (see paragraph 26 above), in which that court quashed convictions imposed by various «MRT courts» on the grounds that they had been handed down by unlawfully created courts. They also referred to the cases of v. Moldova ((dec.), no. 25451/08, 14 September 2010), and  v. Moldova (no. 38281/08, §§ 60 — 76, 2 November 2010) and Bisir and Tulus v. Moldova (no. 42973/05, §§ 21 et seq., 17 May 2011) in support of their assertion that compensation for wrongful prosecution or conviction could be claimed under Law no. 1545.

 

  1. Other relevant materials

 

  1. On 19 May 2009 the press office of the «MRT prosecutor» published a report according to which a visit to the detention facilities in the Slobozia region of the «MRT» had revealed multiple regulatory breaches regarding hygiene, the physical conditions of detention and medical assistance.
  2. The applicant submitted copies of decisions of the «Tiraspol City Court» of 14 April 2009, 11 June 2010, 1 April 2011, 25 February 2012 and 18 November 2013 in cases not related to the present one, ordering the detention pending trial of persons accused of various crimes. None of these decisions specified the period of detention of the persons concerned.
  3. He also submitted the text of several provisions of the «MRT Code of Criminal Procedure». According to Article 79, detention pending trial cannot exceed two months. If the investigation cannot be completed in that period, it may be extended by the court. Under Article 78, paragraph 15, of the same «Code», a person accused of serious and extremely serious offences may be detained pending trial on the basis of the severity of the crime alone. Under Articles 212/1 and 212/2 of the same «Code», the duration of detention of a person whose case is being examined by the trial court cannot exceed six months initially, but may be extended by the court. According to the applicant, the practice of the «MRT courts» is that, once a case has been submitted to the trial court, no further extension of the period of detention pending trial is required during the first six months of such detention.
  4. The applicant also submitted various news items from the media published on the territory controlled by the «MRT» regarding the judiciary in the region. Some of these items refer to politically motivated persecution using the «courts» as a means of exerting pressure, or allege that the «MRT Supreme Court» is a «puppet court» of the «MRT President». Others mention the appointment of new judges to the «MRT courts», referring to the freshly appointed «judges» as having barely any experience, and citing examples such as that of a person who became a judge of the «Tiraspol City Court» at the age of 25, three years after graduating from the local university.

 

THE LAW

 

  1. The applicant complained, inter alia, that he had been arrested and detained unlawfully by the «MRT» authorities. He further alleged that he had not been given the requisite medical assistance for his condition, had been held in inhuman conditions of detention and had been prevented from seeing his parents and his pastor. He submitted that both Moldova and Russia had jurisdiction and were responsible for the alleged violations.

 

  1. General admissibility issues

 

  1. The Russian Government argued that the applicant did not come within their jurisdiction and that, consequently, the application should be declared inadmissible ratione personae and ratione loci in respect of the Russian Federation. For their part, the Moldovan Government did not contest that the Republic of Moldova retained jurisdiction over the territory controlled by the «MRT», but submitted that the applicant had failed to exhaust the remedies available to him in Moldova. The Court finds it appropriate, before examining the admissibility and merits of each complaint lodged by the applicant, to examine these two objections potentially affecting all of the complaints.

 

  1. Jurisdiction

 

  1. The Court must first determine whether, for the purposes of the matters complained of, the applicant falls within the jurisdiction of either or both of the respondent States, within the meaning of Article 1 of the Convention.

 

  1. The parties’ submissions

 

(a) The applicant

(i) The jurisdiction of the Republic of Moldova

  1. The applicant submitted that, although Moldova lacked effective control over Transdniestria, the region clearly remained part of Moldovan national territory and the protection of human rights there remained Moldova’s responsibility.
  2. He argued that, apart from the general measures taken by Moldova aimed at resolving the conflict and ensuring observance of human rights in the Transdniestrian region, the authorities had failed to take measures to secure his individual Convention rights.

(ii) The jurisdiction of the Russian Federation

  1. The applicant submitted that the Court’s findings of fact in and Others (cited above, §§ 379 — 91), which had led it to conclude that Russia exercised a decisive influence over the «MRT» (§ 392), also applied to the present case. The «MRT» continued to survive only by virtue of Russia’s military, economic, financial, informational and political support. Russia had «effective control or at the very least a decisive influence» over the «MRT».
  2. Furthermore, the actions of the Russian authorities in the present case sent out a different message from the country’s official position: it was unclear why the Russian embassy would send the complaint made by the applicant’s mother to the «MRT prosecutor’s office» (see paragraph 49 above) if Russia did not recognise the «MRT» as a lawfully created entity.

(b) The Moldovan Government

(i) The jurisdiction of the Republic of Moldova

  1. The Moldovan Government submitted that, according to the rationale of and Others (cited above), the applicant fell within Moldova’s jurisdiction because, by claiming the territory and by trying to secure applicants’ rights, the Moldovan authorities assumed positive obligations in respect of applicants. The Moldovan Government maintained that they still had no jurisdiction over Transdniestrian territory in the sense of authority and control; nevertheless, they continued to fulfil the positive obligations established by and Others and were intensifying their diplomatic efforts in that regard.
  2. For instance, the Moldovan authorities kept all the parties in the ongoing negotiations concerning the Transdniestrian region informed of all relevant developments; they also continued to request Russia’s withdrawal of its military equipment and personnel from the region and to ensure observance of human rights there. At Moldova’s insistence the European Union (EU) had been included in the negotiation format in 2005, and later that year the EU Border Assistance Mission to Moldova and Ukraine (EUBAM) had started its work of offering technical advice to Moldova and Ukraine in securing better control of their borders with the Transdniestrian region. Moldovan officials continued to ask Russia to honour its obligations in various international fora such as the United Nations, the Council of Europe, the EU and the OSCE.
  3. Moreover, still according to the Moldovan Government, they had — in response to the high number of complaints about alleged breaches of human rights in the «MRT» — set up a number of legal mechanisms aimed at guaranteeing constitutional rights, including the right to property, medical treatment, justice, education, and so forth. Hence, the Moldovan authorities had opened various amenities in settlements near the region, such as passport and other documentation offices, prosecutors’ offices and courts.
  4. With regard to specific cases of alleged violations of human rights in the region such as that of the applicant, the Moldovan authorities were taking the only steps available to them, that is to say, asking for assistance by Russia and other countries and international organisations in influencing the «MRT» authorities to ensure the observance of such rights.

(ii) The jurisdiction of the Russian Federation

  1. The Moldovan Government submitted a number of media reports from the «MRT» and Russia, which in their view confirmed that in 2010 the Russian Federation had continued to support the separatist regime. They referred to bans on selling Moldovan wine in Russia in 2006 and 2010; the continued payment of up to 50% of pensions and salaries in the public sphere with money received from Russia; declarations by various Russian and «MRT» officials concerning close relations with and support from Russia; the continued delivery of natural gas from Russia to the «MRT» for only a nominal payment; the development of a common education system and textbooks and the recognition of «MRT» diplomas in Russia; allegations in the «MRT» media that by choosing political parties which received economic aid, Russia was able to influence politics there; messages from the Russian Foreign Minister, Serghei Lavrov, and the Russian ambassador to Moldova, Valeri Kuzmin, congratulating the separatist leaders on the twentieth anniversary of the self-proclamation of their independence; and the attendance of various Russian officials at the anniversary celebrations in Tiraspol.
  2. According to the Moldovan Government, the «MRT» continued to have Russia’s political, economic and financial support. The presence of Russian troops and the massive assistance given to the «MRT» complicated the negotiations aimed at settling the conflict.

(c) The Russian Government

(i) The jurisdiction of the Republic of Moldova

  1. The Russian Government did not comment on the jurisdictional position of the Republic of Moldova in the present case.

(ii) The jurisdiction of the Russian Federation

  1. The Russian Government took issue with the Court’s approach to jurisdiction in and Others (cited above). They contended that, in keeping with the Court’s reasoning in the cases of Loizidou v. Turkey ((preliminary objections), 23 March 1995, § 62, Series A no. 310) and Cyprus v. Turkey ([GC], no. 25781/94, § 76, ECHR 2001-IV), a State could be considered to be exercising extraterritorial jurisdiction if it (a) continued to exercise control through subordinate local authorities and (b) kept control over the whole territory owing to the presence of a large number of troops and «practically exercised a global control over» the relevant territory. Neither of these two conditions was met in the present case. The situation was similar to the case of and Others v. Belgium and Others ((dec.) [GC], no. 52207/99, ECHR 2001-XII), in which the Court had recognised that jurisdiction could only be extended extraterritorially in exceptional cases.
  2. Moreover, the concept of «effective control» as applied by the Court when establishing whether a State exercised extraterritorial jurisdiction was at variance with its meaning in public international law. The notion of «effective and overall control» had first appeared in the case-law of the International Court of Justice (ICJ), but had a different meaning there. Comparing the present situation to that in the Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America, International Court of Justice judgment of 27 June 1986, §§ 109 — 115), the Russian Government argued that they had much less influence over the «MRT» authorities than the United States of America had had over the rebels in Nicaragua, notably in terms of the strength of their military presence in the «MRT». In fact, Russia was one of the mediators of the conflict between Moldova and the self-proclaimed «MRT». The ICJ had confirmed its position in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro, judgment of 26 February 2007 — «the Bosnian Genocide case»). The notion of «overall control» had been further developed by the International Criminal Tribunal for the Former Yugoslavia. The Court’s interpretation of this notion differed from the interpretations of these international tribunals.
  3. Moreover, Russia had never engaged in the occupation of any part of Moldovan territory. It could not be said that Russia exercised jurisdiction in the present case, where the territory was controlled by a de facto government which was not an organ or instrument of Russia and which did not depend on Russia in any way. On the contrary, Russia considered the «MRT» to be an integral part of the Republic of Moldova. Russia’s military presence was restricted to a limited number of peacekeepers; therefore, there were no grounds for concluding that it exercised control through the strength of its military presence. The Russian Government referred in that connection to the cases of Al-Skeini and Others v. the United Kingdom ([GC], no. 55721/07, § 139, ECHR 2011) and Jaloud v. the Netherlands ([GC], no. 47708/08, § 139, ECHR 2014). They referred to a newspaper article submitted by the applicant, according to which there had been fewer than 400 Russian peacekeepers in the region in October 2006, «on a par with the number of military servicemen from the «MRT» and Moldova».
  4. In reply to a question by the Court as to whether there had been any relevant developments since the adoption of its judgment in and Others (cited above), the Russian Government submitted that Moldova had in the meantime been accepted into the World Trade Organisation (WTO) as an entire trade zone which included the Transdniestrian region. This, in their opinion, showed that there was scope for negotiation and cooperation between Moldova and the «MRT».

 

  1. The Court’s assessment

 

  1. Article 1 of the Convention reads as follows:

«The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.»

In the present case, issues arise as to the meaning of «jurisdiction» with regard to both territorial jurisdiction (in the case of Moldova) and the exercise of extraterritorial jurisdiction (in the case of the Russian Federation).

(a) General principles

  1. In and Others (cited above), the Court established the following principles regarding the presumption of territorial jurisdiction:

«311. It follows from Article 1 that member States must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their «jurisdiction».

The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention.

  1. 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 and Others v. France, nos. 48205/99, 48207/99 and 48209/99, § 20, judgment of 14 May 2002; and Others v. Belgium and Others (dec.) [GC], no. 52207/99, §§ 59 — 61, ECHR 2001-XII; and Assanidze v. Georgia [GC], no. 71503/01, § 137, ECHR 2004-II).

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  and Others, 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, §§ 76 — 80, cited above, and also cited in the above-mentioned  and Others decision, §§ 70 — 71), acts of war or rebellion, or the acts of a foreign State supporting the installation of a separatist State within the territory of the State concerned.

  1. 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 the 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 and Others 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.

  1. The Court considers that where a Contracting State is prevented from exercising its authority over the whole of its territory by a constraining de facto situation, such as obtains when a separatist regime is set up, whether or not this is accompanied by military occupation by another State, it does not thereby cease to have jurisdiction within the meaning of Article 1 of the Convention over that part of its territory temporarily subject to a local authority sustained by rebel forces or by another State.

Nevertheless, such a factual situation reduces the scope of that jurisdiction in that the undertaking given by the State under Article 1 must be considered by the Court only in the light of the Contracting State’s positive obligations towards persons within its territory. The State in question must endeavour, with all the legal and diplomatic means available to it  foreign States and international organisations, to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention.

  1. 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.»

These principles were recently reiterated in Sargsyan v. Azerbaijan ([GC], no. 40167/06, § 128, ECHR 2015).

  1. As regards the general principles concerning the exercise of extraterritorial jurisdiction, the Court, in so far as relevant, summarised them as follows in Catan and Others (cited above):

«103. The Court has established a number of clear principles in its case-law under Article 1. Thus, as provided by this Article, the engagement undertaken by a Contracting State is confined to «securing» ( in the French text) the listed rights and freedoms to persons within its own «jurisdiction» (see Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161;  and Others v. Belgium and Others [GC] (dec.), no. 52207/99, § 66, ECHR 2001-XII). «Jurisdiction» under Article 1 is a threshold criterion. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see  and Others v. Moldova and Russia [GC], no. 48787/99, § 311, ECHR 2004-VII; Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 130, 7 July 2011).

  1. A State’s jurisdictional competence under Article 1 is primarily territorial (see Soering, cited above, § 86; , cited above, §§ 61; 67; , cited above, § 312; Al-Skeini, cited above § 131). Jurisdiction is presumed to be exercised normally throughout the State’s territory (, cited above, § 312; Assanidze v. Georgia [GC], no. 71503/01, § 139, ECHR 2004-II). Conversely, acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1 only in exceptional cases (, cited above, § 67; Al-Skeini, cited above § 131).
  2. To date, the Court has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extra-territorially must be determined with reference to the particular facts (Al-Skeini, cited above, § 132).
  3. One exception to the principle that jurisdiction under Article 1 is limited to a State’s own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that 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 the Contracting State’s own armed forces, or through a subordinate local administration (Loizidou v. Turkey (preliminary objections), 23 March 1995, § 62, Series A no. 310; Cyprus v. Turkey [GC], no. 25781/94, § 76, ECHR 2001-IV, , cited above, § 70; , cited above, §§ 314 — 316; Loizidou (merits), cited above, § 52; Al-Skeini, cited above, § 138). Where the fact of such domination over the territory is established, it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survives as a result of the Contracting State’s military and other support entails that State’s responsibility for its policies and actions. The controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights (Cyprus v. Turkey, cited above, §§ 76 — 77; Al-Skeini, cited above, § 138).
  4. It is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State’s military presence in the area (see Loizidou (merits), cited above, §§ 16 and 56; , cited above, § 387). Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region (see , cited above, §§ 388 — 394; Al-Skeini, cited above, § 139).

  1. The Government of the Russian Federation contend that the Court could only find that Russia was in effective control if it found that the «Government» of the «MRT» could be regarded as an organ of the Russian State in accordance with the approach of the International Court of Justice in the Case Concerning the Application of the Convention on the Prevention and Punishment of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro (see paragraph 76 above). The Court recalls that in the judgment relied upon by the Government of the Russian Federation, the International Court of Justice was concerned with determining when the conduct of a person or group of persons could be attributed to a State, so that the State could be held responsible under international law in respect of that conduct. In the instant case, however, the Court is concerned with a different question, namely whether facts complained of by an applicant fell within the jurisdiction of a respondent State within the meaning of Article 1 of the Convention. As the summary of the Court’s case-law set out above demonstrates, the test for establishing the existence of «jurisdiction» under Article 1 of the Convention has never been equated with the test for establishing a State’s responsibility for an internationally wrongful act under international law.»

These principles were recently reiterated in Chiragov and Others v. Armenia ([GC], no. 13216/05, § 168, ECHR 2015).

(b) Application of these principles to the facts of the case

(i) The jurisdiction of the Republic of Moldova

  1. The Court must first determine whether the case falls within the jurisdiction of the Republic of Moldova. In this connection it notes that the applicant was at all times detained on Moldovan territory. It is true, as all the parties accept, that Moldova has no authority over the part of its territory to the east of the River Dniester, which is controlled by the «MRT». Nevertheless, in and Others (cited above), the Court held that individuals detained in Transdniestria fell within Moldova’s jurisdiction because Moldova was the territorial State, even though it did not have effective control over the Transdniestrian region. Moldova’s obligation under Article 1 of the Convention to «secure to everyone within [its] jurisdiction the [Convention] rights and freedoms», was, however, limited in the circumstances to a positive obligation to take the diplomatic, economic, judicial or other measures that were both in its power to take and in accordance with international law (ibid., § 331). The Court reached a similar conclusion in the cases of and Others v. Moldova and Russia (no. 23687/05, §§ 105 — 11, 15 November 2011) and Catan and Others (cited above, §§ 109 and 110).
  2. The Court sees no reason to distinguish the present case from those cited above. Although Moldova has no effective control over the acts of the «MRT» in Transdniestria, the fact that the region is recognised under public international law as part of Moldova’s territory gives rise to an obligation for that State, under Article 1 of the Convention, to use all the legal and diplomatic means available to it to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention to those living there (see and Others, cited above, § 333, and Catan and Others, cited above, § 109). The Court will consider below (see paragraphs 151 — 155) whether Moldova has satisfied this positive obligation.

(ii) The jurisdiction of the Russian Federation

  1. It follows from the Court’s case-law set out above (see paragraphs 97 and 98), that a State can exercise jurisdiction extraterritorially when, as a consequence of lawful or unlawful military action, it exercises effective control of an area outside its national territory (see paragraph 98 above and Loizidou (preliminary objections), cited above, § 62; Loizidou v. Turkey (merits), 18 December 1996, § 52, Reports of Judgments and Decisions 1996-VI; Cyprus v. Turkey, cited above, § 76; and and Others, cited above, §§ 314 — 16; compare and contrast , cited above, § 70). Moreover, the Court reiterates that a State can, in certain exceptional circumstances, exercise jurisdiction extraterritorially through the assertion of authority and control by that State’s agents over an individual or individuals (see Al-Skeini and Others, cited above, §§ 136 and 149, and Catan and Others, cited above, § 114). In the present case, the Court accepts that there is no evidence of any direct involvement of Russian agents in the applicant’s detention and treatment. However, it is the applicant’s submission that Russia has «effective control or at the very least a decisive influence» over the «MRT» and the Court must establish whether or not this was the case at the time of the applicant’s detention, which lasted from November 2008 until July 2010.
  2. The Russian Government submitted an argument based on the ICJ Bosnian Genocide case, as they had done in Catan and Others (cited above, § 96), and the case of Nicaragua v. the United States of America (see paragraph 93 above), which was part of the case-law taken into account by the Court in Catan and Others (cited above, § 76). In these cases the ICJ was concerned with determining when the conduct of a group of persons could be attributed to a State, with the result that the State could be held responsible under international law for that conduct. In the instant case, however, the Court reiterates that it is concerned with a different issue, namely whether the facts complained of by the applicant fall within the jurisdiction of a respondent State within the meaning of Article 1 of the Convention. As the Court has already found, the test for establishing the existence of «jurisdiction» under Article 1 of the Convention has never been equated with the test for establishing a State’s responsibility for an internationally wrongful act under international law (see paragraph 98 above, and Catan and Others, cited above, § 115).
  3. Although in Catan and Others the Court focused on determining whether Russia had jurisdiction over the applicants between 2002 and 2004, in establishing the facts of that case the Court referred to a number of developments that occurred subsequently. It thus took note, inter alia, of resolutions adopted by the Russian Duma in February and March 2005 calling on the Russian Government to ban imports of alcohol and tobacco from Moldova (see Catan and Others, cited above, § 29); the Russian Government’s ban on meat products, fruit and vegetables from Moldova in 2005 (§ 30); the absence of any verified withdrawals of Russian military equipment from the «MRT» since 2004 (§ 36); the continued presence (by the date of the judgment in Catan, October 2012) of approximately 1,000 Russian military servicemen in the «MRT» to guard its arms store (§ 37); the economic support being provided through close cooperation with Russian military production companies or through the purchase by Russian companies of «MRT» companies, as well as the purchases of supplies in Transdniestria (§ 39); the close economic ties between the «MRT» and Russia, including the token payment to Gazprom of only approximately 5% of the cost of the natural gas consumed (data for 2011, § 40); the economic aid provided to the «MRT» between 2007 and 2010 (§ 41); and the number of «MRT» residents granted Russian citizenship (§ 42).
  4. In addition, various reports from intergovernmental organisations cited in Catan and Others (§§ 64 — 70) refer to the period 2005 to 2008, and reports by non-governmental organisations (§§ 71 — 73) cover the period 2004 to 2009.
  5. The Court further notes that some of its conclusions in Catan and Others, while referring to the period between August 2002 and July 2004, were based on factual findings in respect of which the parties in the present case have not submitted any new information. These concern the quantity of weapons and munitions stored at Colbasna (§ 117); the dissuasive effect of the relatively small Russian military presence in the Transdniestrian region and its historical background, namely the intervention of Russian troops in the 1992 conflict between the Moldovan authorities and the «MRT» forces, the transfer of weapons to the separatists and the arrival in the region of Russian nationals to fight alongside the separatists (§ 118); and the combination of the continued Russian military presence and the storage of weapons in secret and in breach of international commitments, sending «a strong signal of continued support for the «MRT» regime» (see Catan and Others, cited above, § 119).
  6. In and Others (cited above, §§ 116 — 20) the Court analysed whether Russia’s policy of supporting the «MRT» had changed between 2004 and the date of the applicants’ release in 2007. It concluded as follows:

«…the Russian Federation continued to enjoy a close relationship with the «MRT», amounting to providing political, financial and economic support to the separatist regime.

In addition, the Court notes that the Russian army (troops, equipment and ammunition) was at the date of the applicants’ release still stationed on Moldovan territory in breach of the Russian Federation’s undertakings to withdraw completely and in breach of Moldovan legislation…

…the Russian Federation continued to do nothing either to prevent the violations of the Convention allegedly committed after 8 July 2004 or to put an end to the applicants’ situation brought about by its agents.»

  1. The Court also notes that Russia was criticised for opening polling stations in the «MRT» without Moldova’s consent and issuing passports to a large number of people in the Transdniestrian region as recently as 2012 (see paragraph 67 above).
  2. In Catan and Others the Court concluded (§ 121) as follows:

«…the Russian Government have not persuaded the Court that the conclusions it reached in 2004 in the  judgment (cited above) were inaccurate. The «MRT» was established as a result of Russian military assistance. The continued Russian military and armaments presence in the region sent a strong signal, to the «MRT» leaders, the Moldovan Government and international observers, of Russia’s continued military support for the separatists. In addition, the population were dependent on free or highly subsidised gas supplies, pensions and other financial aid from Russia.»

The Court considers, given the absence of any relevant new information to the contrary, that this conclusion continues to be valid for the period under consideration, namely November 2008 to July 2010.

  1. Lastly, it should be noted that in the present case the Russian Government’s arguments concerning the jurisdictional issue are essentially the same as those which they advanced in Catan and Others (cited above). The only development cited by the Russian Government which occurred since the period covered by the two judgments in and Others and Catan and Others (that is, the period prior to 2004), namely Moldova’s acceptance into the WTO (which, the Russian Government argued, provided scope for cooperation between Moldova and the «MRT», see paragraph 95 above), does not, in the Court’s view, have a bearing on this issue.
  2. The Court therefore maintains its findings made in and Others, and Others and Catan and Others (all cited above), to the effect that the «MRT» is only able to continue to exist, and to resist Moldovan and international efforts to resolve the conflict and bring democracy and the rule of law to the region, because of Russian military, economic and political support. In these circumstances, the «MRT’s» high level of dependency on Russian support provides a strong indication that Russia continues to exercise effective control and a decisive influence over the «MRT» authorities (see Catan and Others, cited above, § 122).
  3. It follows that the applicant in the present case falls within Russia’s jurisdiction under Article 1 of the Convention. Consequently, the Court dismisses the Russian Government’s objections ratione personae and ratione loci.
  4. The Court must therefore determine whether there has been any violation of the applicant’s rights under the Convention such as to engage the responsibility of either respondent State.

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