Постановление ЕСПЧ от 23.02.2016 <Дело Мозер (Mozer) против Республики Молдова и России> (жалоба N 11138/10) [англ.] Часть 3

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  1. Exhaustion of domestic remedies
  1. The parties’ submissions


  1. In their observations of 31 October 2014 (paragraphs 114 and 115) the Moldovan Government submitted that the applicant had not exhausted the remedies available to him in Moldova (see paragraph 79 above). In particular, they noted that while he had obtained the quashing by the Supreme Court of Justice of his conviction by the «MRT court», he had not applied, on the basis of the quashing of that judgment and relying on Law no. 1545 (1998) (see paragraph 72 above), for compensation from the Republic of Moldova for the breach of his rights.
  2. The applicant did not comment on this issue.


  1. The Court’s assessment


  1. According to the Court’s settled case-law, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. Those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports 1996-IV; and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 70, 25 March 2014; and Gherghina v. Romania [GC] (dec.), no. 42219/07, § 84, 9 July 2015).
  2. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others, cited above, § 66; and Others, cited above, § 71; and Gherghina, cited above, § 85). To be effective, a remedy must be capable of directly redressing the impugned state of affairs and must offer reasonable prospects of success (see Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II, and Others, cited above, § 74 and Gherghina, cited above, § 85).
  3. In the present case the Court notes that section 1 of Law no. 1545 expressly states that it applies to cases where damage is caused by the unlawful actions of the criminal investigation bodies, the prosecution authorities or the courts (see paragraph 72 above). According to the Moldovan Government (see paragraph 129 below), only those authorities (in particular the courts) which were created in accordance with Moldovan law can be officially recognised as such. In the Court’s view, this seems to exclude any compensation for the unlawful acts of any «courts» or «prosecution» or other authorities created by the «MRT».
  4. Moreover, despite the fact that the Moldovan Government submitted several examples in which the Supreme Court of Justice had quashed rulings handed down by the «MRT courts» (as in , § 222), as well as cases where Law no. 1545 had served as a basis for successfully claiming compensation, they did not submit any example of an individual obtaining compensation from Moldova after the quashing of an «MRT court» conviction. The Court is not convinced that in such circumstances Law no. 1545 applies to the applicant’s case.
  5. The Court observes that in their observations of 31 October 2014 the Moldovan Government specified that the domestic remedies to be exhausted by the applicant in Moldova «[were] available remedies, which [were] effective to the extent of the Government’s positive obligations and lack of effective control» (paragraph 129). In the light of this statement, their objection can be understood as referring only to the possibility of obtaining compensation under Law no. 1545 for the four-month delay (see paragraphs 48 and 51 above) in fulfilling the positive obligation to take diplomatic, economic, judicial or other measures aimed at ensuring observance of the applicant’s Convention rights.
  6. However, the Court considers that there is nothing in Law no. 1545 that would allow the applicant to claim compensation for such a delay, since it deals with cases in which the various Moldovan investigating authorities or courts (see paragraphs 72 and 117 above) have breached an individual’s rights in the framework of criminal or administrative contravention proceedings, and not with the delayed use or failure to make use of diplomatic or other means at the State level.
  7. In view of the above considerations, the Court rejects the Moldovan Government’s objection of non-exhaustion of domestic remedies.


  1. Alleged violation of Article 5 § 1 of the Convention


  1. The applicant complained that he had been arrested and detained by unlawfully created militia and courts. He relied on Article 5 § 1 of the Convention, the relevant part of which reads as follows:

«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:…

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;…»


  1. Admissibility


  1. The Court notes that the complaints under Article 5 § 1 are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.


  1. Merits
  1. The parties’ submissions


(a) The applicant

  1. The applicant complained that his detention had been unlawful. The Court’s case-law in respect of the requirement of lawfulness referred primarily to the observance of domestic law. Since the applicant’s detention had been ordered by «MRT courts», created in breach of the relevant Moldovan legislation (see paragraphs 69 and 70 above), it could not be considered «lawful» within the meaning of Article 5 § 1 of the Convention. Moreover, the principle of ex injuria jus non oritur dictated that acts which were contrary to international law could not become a source of legal acts for the wrongdoer.
  2. Referring to and Others (cited above, § 460), the applicant submitted in particular that the judicial system of the «MRT» did not reflect a legal tradition compatible with the Convention. The «MRT courts» lacked independence and impartiality. Relying on a number of documents, he argued that the appointment procedures for judges were not transparent and that judges were not sufficiently independent from the executive, in particular from the President of the «MRT». In his view, there had been frequent incidents of corruption and abuse of criminal procedures for private business interests, and his own case provided an example. Moreover, the procedures which the «MRT courts» applied in respect of detention did not comply with Convention standards and did not offer guarantees against arbitrariness. The Court should therefore confirm the approach taken in and Others (cited above).
  3. The applicant argued further that there were important differences between the present case and the cases concerning the «Turkish Republic of Northern Cyprus» («TRNC»). Firstly, the attitude of the State exercising effective control over the area differed. While Turkey recognised the «TRNC» as an independent State, Russia did not recognise the «MRT» and, as was clear from the Russian Government’s observations in respect of jurisdiction in the present case, continued to consider the «MRT» as part of the Republic of Moldova. Secondly, Moldova had established a parallel system of courts for the Transdniestrian region. The task of these courts, located on the territory controlled by Moldova, was to examine civil and criminal cases relating to the Transdniestrian region. Any recognition by the Court that the «MRT courts» could be regarded as «tribunals established by law» or that they could impose «lawful» detention would undermine the functioning of these legitimate Moldovan courts. Thirdly, in contrast to the situation in the «TRNC», the «MRT courts» did not apply the laws of the Republic of Moldova or the laws of the Russian Federation, but rather their own legal system which was not compatible with Convention standards.
  4. The applicant finally complained that after his case had been sent to the trial court, his detention was unlawful since the last court order extending his detention had expired on 24 November 2009 and no new order was adopted until 21 April 2010.

(b) The Moldovan Government

  1. The Moldovan Government argued that the Court should follow the approach taken in the and Others judgment (cited above, §§ 436 and 460 — 462).
  2. They referred to the judgment of 22 January 2013 by the Supreme Court of Justice of the Republic of Moldova (see paragraph 26 above) and stressed that it had confirmed the unlawful and arbitrary nature of the applicant’s conviction. They maintained that the «MRT courts» were organs of an illegal entity which had not been recognised by any State. The applicant’s detention as ordered by the courts of the «MRT» could not be regarded as «lawful» within the meaning of Article 5 § 1 of the Convention. In the Moldovan Government’s view, any conclusion to the contrary would imply a recognition of certain powers on the part of the unrecognised entity.
  3. The Moldovan Government also pointed to differences between the legal traditions of the «MRT» and the «TRNC» which had led to different conclusions being reached by the Court in and Others (cited above) on the one hand and in the cases of Foka v. Turkey (no. 28940/95, 24 June 2008) and Protopapa v. Turkey (no. 16084/90, 24 February 2009) on the other hand. The same approach as in and Others should be taken in the present case. The legal system of the «MRT» was based on the old Soviet system and did not reflect any commitment to the Convention or other international human rights standards. The Moldovan Government referred in particular to the «Report on Human Rights in the Transnistrian Region of the Republic of Moldova» (see paragraph 62 above). In their view, this report showed that the judicial organisation of the «MRT» did not comply with the basic principles of independence and impartiality.
  4. Finally, the Moldovan Government submitted that they could not comment on the lawfulness of the applicant’s detention from the point of view of compliance with «MRT» law, since in any event that law was unconstitutional and the «MRT» legal system did not correspond to the principles of democracy, independence and impartiality of the judicial organisation.

(c) The Russian Government

  1. The Russian Government did not submit any specific observations in this regard. Their position was that they did not have «jurisdiction» in the territory of the «MRT» and that they were therefore not in a position to make any observations on the merits of the case.


  1. The Court’s assessment


  1. The Court notes that the applicant was arrested on 24 November 2008 and subsequently held in detention pending trial from 26 November 2008 to 1 July 2010 (see paragraphs 13 and 22 above). Accordingly, Article 5 § 1 (c) of the Convention is applicable.
  2. It is well established in the Court’s case-law on Article 5 § 1 that any deprivation of liberty must not only be based on one of the exceptions listed in sub-paragraphs (a) to (f) but must also be «lawful». Where the «lawfulness» of detention is in issue, including the question whether «a procedure prescribed by law» has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law, but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see, for example, Del Prada v. Spain [GC], no. 42750/09, § 125, ECHR 2013).
  3. In the present case, the question arises whether the applicant’s arrest and pre-trial detention can be regarded as «lawful» for the purpose of Article 5 § 1 of the Convention, given that they were ordered by organs of the «MRT», an unrecognised entity. The Court therefore considers it appropriate to set out the general principles established in its case-law in respect of the lawfulness of acts adopted by the authorities of unrecognised entities.

(a) General principles concerning the lawfulness of acts adopted by unrecognised entities

  1. The Court considers that this issue is to be viewed in the context of its general approach to the exercise of extraterritorial jurisdiction in unrecognised entities. In that context the Court has had regard to the special character of the Convention as an instrument of European public order for the protection of individual human beings and its mission, as set out in Article 19 of the Convention, to «ensure the observance of the engagements undertaken by the High Contracting Parties». It has underlined the need to avoid a vacuum in the system of human rights protection and has thus pursued the aim of ensuring that Convention rights are protected throughout the territory of all Contracting Parties, even on territories effectively controlled by another Contracting Party, for instance through a subordinate local administration (see Cyprus v. Turkey, cited above, § 78).
  2. In Cyprus v. Turkey (cited above, §§ 91 — 94) the Court examined the question whether applicants could be required to exhaust remedies available in the «TRNC», that is, in an unrecognised entity. It drew inspiration, inter alia, from the stance of the ICJ in its Advisory Opinion concerning the «Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), notwithstanding Security Council Resolution 276 (1970)» (International Court of Justice Reports 16, p. 56, paragraph 125). In that Advisory Opinion the ICJ had found that, while official acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the mandate were illegal and invalid, this invalidity could not be extended to those acts such as, for instance, the registration of births, deaths or marriages, the effects of which could be ignored only to the detriment of the inhabitants of that territory. The Court found that use should be made of remedies available in the «TRNC» provided that it could be shown that they existed to the advantage of individuals and offered them reasonable prospects of success. On a more general level it noted that the absence of courts in the «TRNC» would work to the detriment of the members of the Greek-Cypriot community. The Court then concluded as follows (Cyprus v. Turkey, cited above, § 96):

«…the obligation to disregard acts of de facto entities is far from absolute. Life goes on in the territory concerned for its inhabitants. That life must be made tolerable and be protected by the de facto authorities, including their courts; and, in the very interest of the inhabitants, the acts of these authorities related thereto cannot be simply ignored by third States or by international institutions, especially courts, including this one. To hold otherwise would amount to stripping the inhabitants of the territory of all their rights whenever they are discussed in an international context, which would amount to depriving them even of the minimum standard of rights to which they are entitled.»

  1. The Court confirmed this approach in Demopoulos and Others v. Turkey ((dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, § 95, ECHR 2010-I). Again in the context of exhaustion of domestic remedies, the Court noted that those affected by the policies and actions of the «TRNC» came within the jurisdiction of Turkey, with the consequence that Turkey could be held responsible for violations of Convention rights taking place within that territory. It went on to say that it would not be consistent with such responsibility under the Convention if the adoption by the authorities of the «TRNC» of civil, administrative or criminal law measures, or their application or enforcement within their territory, were to be denied any validity or regarded as having no «lawful» basis in terms of the Convention. Furthermore it noted (ibid., § 96) as follows:

«The right of individual petition under the Convention is no substitute for a functioning judicial system and framework for the enforcement of criminal and civil law.»

  1. In Cyprus v. Turkey (cited above) the Court also had to deal with another issue of relevance in the present context. The applicant Government complained under Article 6 that Greek Cypriots in northern Cyprus were denied the right to have their civil rights and obligations determined by independent and impartial courts established by law. The Court held as follows:

«231. As to the applicant Government’s claim that «TRNC» courts failed to satisfy the criteria laid down in Article 6, the Commission noted, firstly, that there was nothing in the institutional framework of the «TRNC» legal system which was likely to cast doubt either on the independence and impartiality of the civil courts or the subjective and objective impartiality of judges, and, secondly, those courts functioned on the basis of the domestic law of the «TRNC» notwithstanding the unlawfulness under international law of the «TRNC»‘s claim to statehood. The Commission found support for this view in the Advisory Opinion of the International Court of Justice in the Namibia case (see paragraph 86 above). Moreover, in the Commission’s opinion due weight had to be given to the fact that the civil courts operating in the «TRNC» were in substance based on the Anglo-Saxon tradition and were not essentially different from the courts operating before the events of 1974 and from those which existed in the southern part of Cyprus.

  1. As to the applicant Government’s challenge to the very legality of the «TRNC» court system, the Court observes that they advanced similar arguments in the context of the preliminary issue concerning the requirement to exhaust domestic remedies in respect of the complaints covered by the instant application (see paragraphs 83 — 85 above). The Court concluded that, notwithstanding the illegality of the «TRNC» under international law, it cannot be excluded that applicants may be required to take their grievances before, inter alia, the local courts with a view to seeking redress. It further pointed out in that connection that its primary concern in this respect was to ensure, from the standpoint of the Convention system, that dispute-resolution mechanisms which offer individuals the opportunity of access to justice for the purpose of remedying wrongs or asserting claims should be used.
  2. The Court observes from the evidence submitted to the Commission (see paragraph 39 above) that there is a functioning court system in the «TRNC» for the settlement of disputes relating to civil rights and obligations defined in «domestic law» and which is available to the Greek-Cypriot population. As the Commission observed, the court system in its functioning and procedures reflects the judicial and common-law tradition of Cyprus (see paragraph 231 above). In its opinion, having regard to the fact that it is the «TRNC domestic law» which defines the substance of those rights and obligations for the benefit of the population as a whole it must follow that the domestic courts, set up by the «law» of the «TRNC», are the fora for their enforcement. For the Court, and for the purposes of adjudicating on «civil rights and obligations» the local courts can be considered to be «established by law» with reference to the «constitutional and legal basis» on which they operate.

In the Court’s opinion, any other conclusion would be to the detriment of the Greek-Cypriot community and would result in a denial of opportunity to individuals from that community to have an adjudication on a cause of action against a private or public body (see paragraph 96 above). It is to be noted in this connection that the evidence confirms that Greek Cypriots have taken successful court actions in defence of their civil rights.»

  1. In several judgments concerning Turkey the Court has applied the principles established in the case of Cyprus v. Turkey to criminal matters (see Foka, cited above, § 83, where the arrest of the Greek-Cypriot applicant by a «TRNC» police officer was found to be lawful for the purpose of Article 5; Protopapa, cited above, § 60, where both the pre-trial detention and the detention after conviction imposed by the «TRNC» authorities were considered to be lawful for the purpose of Article 5 and a criminal trial before a «TRNC» court was found to be in accordance with Article 6; and also Asproftas v. Turkey, no. 16079/90, § 72, 27 May 2010; Petrakidou v. Turkey, no. 16081/90, § 71, 27 May 2010; and Union des droits de l’homme and Josephides v. Turkey (dec.), no. 7116/10, § 9, 2 April 2013).
  2. In and Others (cited above, § 460), when examining whether the applicants’ detention following their conviction by the «MRT Supreme Court» could be regarded as «lawful» under Article 5 § 1 (a) of the Convention, the Court formulated the general principle as follows:

«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 with the Convention, in order to enable individuals to enjoy the Convention guarantees (see, mutatis mutandis, Cyprus v. Turkey, cited above, §§ 231 and 236 — 237).»

(b) Application of these principles to the present case

  1. With reference to the above general principles established in its case-law, the Court considers that the primary concern must always be for Convention rights to be effectively protected throughout the territory of all Contracting Parties, even if a part of that territory is under the effective control of another Contracting Party (see paragraph 136 above). Accordingly, it cannot automatically regard as unlawful, for the limited purposes of the Convention, the decisions taken by the courts of an unrecognised entity purely because of the latter’s unlawful nature and the fact that it is not internationally recognised.
  2. In line with this rationale the Court finds it already established in its case-law that the decisions taken by the courts of unrecognised entities, including decisions taken by their criminal courts, may be considered «lawful» for the purposes of the Convention provided that they fulfil certain conditions (see and Others, cited above, § 460). This does not in any way imply any recognition of that entity’s ambitions for independence (see mutatis mutandis, Cyprus v. Turkey, cited above § 92).
  3. At the same time, the Court has long held that «[t]he Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective» (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32). It is insufficient to declare that the Convention rights are protected on a certain territory — the Court must be satisfied that such protection is also effective. A primary role in ensuring that such rights are observed is assigned to the domestic courts, which must offer guarantees of independence and impartiality and fairness of proceedings. Consequently, when assessing whether the courts of an unrecognised entity satisfy the test established in its and Others judgment, namely whether they «form part of a judicial system operating on a «constitutional and legal basis»… compatible with the Convention» (cited above, § 460), the Court will attach weight to the question whether they can be regarded as independent and impartial and are operating on the basis of the rule of law.
  4. In verifying whether the «MRT courts» which ordered the applicant’s detention, namely the «Tiraspol People’s Court» and the «MRT Supreme Court» satisfy the above criteria, the Court must start from the findings made in its previous case-law concerning this unrecognised entity. In and Others (cited above, §§ 436 and 461), referring to «the patently arbitrary nature of the circumstances in which the applicants were tried and convicted» in 1993 (§ 215), the Court found that the «Supreme Court of the MRT» «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» (§ 436). At the same time, it cannot be excluded that the situation has evolved since that judgment was rendered in 2004. This makes it necessary to verify whether what was established in and Others with respect to the «MRT courts» before the Republic of Moldova and the Russian Federation became parties to the Convention in 1997 and 1998 respectively continues to be valid in the present case.
  5. The Court notes that the parties were asked, with specific reference to its case-law, to comment on the question whether the «MRT courts» could order the applicant’s lawful arrest and detention within the meaning of Article 5 § 1 of the Convention. Moreover, they were asked to comment on the specific legal basis for the applicant’s detention in the «MRT». The Moldovan Government commented briefly that the legal system of the «MRT» was based on the former Soviet system and that the «MRT» courts lacked independence and impartiality (see paragraph 130 above). As to the legal basis for the applicant’s arrest and detention, they stated that they could not submit such information. The Russian Government referred to their position concerning their lack of jurisdiction and did not make any comments on the merits. The applicant, for his part, alleged in particular that the «MRT courts» lacked independence and impartiality.
  6. In the Court’s view, it is in the first place for the Contracting Party which has effective control over the unrecognised entity at issue to show that its courts «form part of a judicial system operating on a constitutional and legal basis reflecting a judicial tradition compatible with the Convention» (see paragraph 144 above). As the Court has already established (see paragraph 111 above), in the case of the «MRT» it is Russia which has such effective control. To date the Russian Government have not submitted to the Court any information on the organisation of the «MRT» courts which would enable it to assess whether they fulfil the above requirement. Nor have they submitted any details of the «MRT» law which served as a basis for the applicant’s detention. Furthermore, the Court notes the scarcity of official sources of information concerning the legal and court system in the «MRT», a fact which makes it difficult to obtain a clear picture of the applicable laws. Consequently, the Court is not in a position to verify whether the «MRT courts» and their practice fulfil the requirements mentioned above.
  7. There is also no basis for assuming that there is a system reflecting a judicial tradition compatible with the Convention in the region, similar to the one in the remainder of the Republic of Moldova (compare and contrast with the situation in Northern Cyprus, referred to in Cyprus v. Turkey, cited above, §§ 231 and 237). The division of the Moldovan and «MRT» judicial systems took place in 1990, well before Moldova joined the Council of Europe in 1995. Moreover, Moldovan law was subjected to a thorough analysis when it requested membership of the Council of Europe (see Opinion No. 188 (1995) of the Council of Europe Parliamentary Assembly on the application by Moldova for membership of the Council of Europe), with amendments proposed to ensure compatibility with the Convention, which Moldova finally ratified in 1997. No such analysis was made of the «MRT legal system», which was thus never part of a system reflecting a judicial tradition considered compatible with Convention principles before the split into separate judicial systems occurred in 1990 (see paragraph 12 above and and Others, cited above, §§ 29 and 30).
  8. The Court also considers that the conclusions reached above are reinforced by the circumstances in which the applicant in the present case was arrested and his detention was ordered and extended (see paragraphs 13 — 15 and 17 above, especially the order for his detention for an undefined period of time and the examination in his absence of the appeal against the decision to extend that detention), as well as by the case-law referred to by the applicant (see paragraphs 75 above) and the various media reports which raise concerns about the independence and quality of the «MRT courts» (see paragraph 77 above).
  9. In sum, the Court concludes that its findings made in and Others (cited above, §§ 436 and 460 — 462) are still valid with respect to the period of time covered by the present case. It therefore finds that the «MRT courts» and, by implication, any other «MRT authority», could not order the applicant’s «lawful arrest or detention» within the meaning of Article 5 § 1 (c) of the Convention. Accordingly, the applicant’s detention based on the orders of the «MRT courts» was unlawful for the purposes of that provision.


  1. Responsibility of the respondent States


(a) The Republic of Moldova

  1. The Court must next determine whether the Republic of Moldova fulfilled its positive obligations to take appropriate and sufficient measures to secure the applicant’s rights under Article 5 § 1 (see paragraph 100 above). In and Others (cited above, §§ 339 — 40), the Court held that Moldova’s positive obligations related both to measures needed to re-establish its control over the Transdniestrian territory, as an expression of its jurisdiction, and to measures to ensure respect for individual applicants’ rights. The obligation to re-establish control over Transdniestria required Moldova to refrain from supporting the separatist regime and to act by taking all the political, judicial and other measures at its disposal for re-establishing control over the territory. The Court took the same approach in Catan and Others (cited above, § 145).
  2. As regards the first aspect of Moldova’s positive obligation, to re-establish control, the Court in and Others (cited above, §§ 341 — 45) found that from the onset of the hostilities in 1991 and 1992 until July 2004, when judgment was given, Moldova had taken all the measures in its power to re-establish control over Transdniestrian territory. The Court found no reason to depart from that finding in Catan and Others (§ 146). In the present case, the parties did not submit any new argument on the issue. There is nothing to indicate that the Moldovan Government changed their position in respect of Transdniestria in the intervening years up to the period of the applicant’s detention from November 2008 to July 2010. The Court therefore sees no reason to reach a different conclusion in the present case.
  3. Turning to the second aspect of the positive obligation, namely to ensure respect for the applicants’ rights, the Court found in and Others (cited above, §§ 348 — 52) that Moldova had failed to fully comply with its positive obligations to the extent that from May 2001 it had failed to take all the measures available to it in the course of negotiations with the «MRT» and Russian authorities to bring an end to the violation of the applicants’ rights. In the present case, however, the Court considers that the Moldovan Government made considerable efforts to support the applicant. In particular, the authorities made a number of appeals to various intergovernmental organisations and foreign countries, notably Russia, asking them to assist in securing the applicant’s rights (see paragraph 51 above). When the applicant asked the Moldovan Supreme Court of Justice to quash his conviction, he obtained such a decision (see paragraph 26 above) and the prosecutor’s office did eventually take whatever steps it could to investigate the applicant’s allegations relating to his unlawful detention (see paragraphs 52 and 53 above).
  4. It is true that the Prosecutor General’s Office and the Human Rights Centre did not intervene when the applicant’s parents complained to them (see paragraphs 47 and 48 above). However, this may be seen against the background of the efforts made by other authorities, including those at the highest level, to ensure the protection of the applicant’s rights. Considering the number of complaints about breaches of Convention rights by the «MRT» authorities and the inevitable delay in dealing with all of them at a high diplomatic level, the Court cannot conclude that the initial lack of reaction amounts, by itself, to a failure by Moldova to take whatever steps it could in order to secure the applicant’s rights.
  5. In the light of the foregoing, the Court considers that the Republic of Moldova fulfilled its positive obligations in respect of the applicant. It therefore finds that there has been no violation of Article 5 § 1 of the Convention by the Republic of Moldova.

(b) The Russian Federation

  1. The Court notes that there is no evidence that persons acting on behalf of the Russian Federation directly participated in the measures taken against the applicant.
  2. Nevertheless, the Court has established that Russia exercised effective control over the «MRT» during the period in question (see paragraph 110 above). In the light of this conclusion, and in accordance with the Court’s case-law, it is not necessary to determine whether or not Russia exercises detailed control over the policies and actions of the subordinate local administration (see Catan and Others, cited above, §§ 106 and 150). By virtue of its continued military, economic and political support for the «MRT», which could not otherwise survive, Russia’s responsibility under the Convention is engaged as regards the violation of the applicant’s rights.
  3. In conclusion, and after having found that the applicant’s detention was unlawful under Article 5 § 1 of the Convention (see paragraph 150 above), the Court holds that there has been a violation of that provision by the Russian Federation.
  4. Having reached this conclusion, the Court finds it unnecessary to examine separately the additional complaint under Article 5 § 1 (see paragraph 127 above).


III. Alleged violation of Article 5 § 4 of the Convention


  1. The applicant complained that he had been absent from some of the court hearings concerning his detention pending trial. He relied on Article 5 § 1 of the Convention. The Court considers that this complaint is to be examined under Article 5 § 4 of the Convention, which reads as follows:

«Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.»

  1. The Moldovan Government did not make any specific submissions in respect of this complaint.
  2. The Russian Government did not make any submissions on this point.

163. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. However, in view of the reasons for finding that the applicant’s detention was unlawful (see paragraph 150 above), the Court considers that it is unnecessary to examine separately the complaint under Article 5 § 4.

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