Постановление ЕСПЧ от 23.02.2016 <Дело Мозер (Mozer) против Республики Молдова и России> (жалоба N 11138/10) [англ.] Часть 5

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  1. Responsibility of the respondent States

 

(a) The Republic of Moldova

  1. The Court notes at the outset that the nature of the positive obligations to be fulfilled by the Republic of Moldova (see paragraphs 99 and 100 above) does not require the payment of compensation for breaches by the «MRT». Accordingly, the rejection of the preliminary objection concerning non-exhaustion of domestic remedies owing to the absence of a proven right to compensation from the Moldovan authorities for breaches of Convention rights by the «MRT» (see paragraphs 115 — 121 above) does not have any effect on the Court’s analysis concerning the fulfilment of positive obligations by the Republic of Moldova.
  2. The Court considers that it would be inconsistent for it to find that Moldova, while having no means of controlling the actions of the «MRT» authorities, should be held responsible for its inability to enforce any decisions adopted by the Moldovan authorities on the territory under the effective control of the «MRT». The Court reiterates that the positive obligation incumbent on Moldova is to use all the legal and diplomatic means available to it to continue to guarantee to those living in the Transdniestrian region the enjoyment of the rights and freedoms defined in the Convention (see paragraph 100 above). Accordingly, the «remedies» which Moldova must offer the applicant consist in enabling him to inform the Moldovan authorities of the details of his situation and to be kept informed of the various legal and diplomatic actions taken.
  3. In this connection the Court notes that Moldova has created a set of judicial, investigative and civil service authorities which work in parallel with those created by the «MRT» (see paragraph 205 above). While the effects of any decisions taken by these Moldovan authorities can only be felt outside the Transdniestrian region, they have the function of enabling cases to be brought in the proper manner before the Moldovan authorities, which can then initiate diplomatic and legal steps to attempt to intervene in specific cases, in particular by urging Russia to fulfil its obligations under the Convention in its treatment of the «MRT» and the decisions taken there.
  4. In the light of the foregoing, the Court considers that the Republic of Moldova has made procedures available to the applicant commensurate with its limited ability to protect the applicant’s rights. It has thus fulfilled its positive obligations. Accordingly, the Court finds that there has been no violation of Article 13 of the Convention by that State.

(b) The Russian Federation

  1. In the present case, the Court has found that the Russian Federation continues to exercise effective control over the «MRT» (see paragraph 110 above). In accordance with its case-law it is thus not necessary to determine whether Russia exercises detailed control over the policies and actions of the subordinate local authority. Russia’s responsibility is engaged by virtue of its continued military, economic and political support for the «MRT», which could not otherwise survive.
  2. In the absence of any submission by the Russian Government as to any remedies available to the applicant, the Court concludes that there has been a violation by the Russian Federation of Article 13 taken in conjunction with Articles 3, 8 and 9.

 

VIII. Alleged violation of Article 17 of the Convention

 

  1. Lastly, the applicant complained of a breach of Article 17 of the Convention by both respondent States on account of their tolerance towards the unlawful regime installed in the «MRT», which did not recognise any rights set forth in the Convention. Article 17 reads as follows:

«Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.»

  1. The Moldovan Government submitted that Moldova had never tolerated the creation and continued existence of the «MRT» and had consistently called for the restoration of democracy, the rule of law and human rights in the Transdniestrian region. Moldova had never sought to act in a manner aimed at destroying the rights and freedoms protected by the Convention or setting new limitations on such rights.
  2. The Russian Government did not make any submissions on this point.
  3. The Court observes that Article 17 of the Convention can only be applied in conjunction with the substantive provisions of the Convention. In so far as it refers to groups and individuals, its purpose is to make it impossible for them to derive from the Convention a right to engage in any activity or perform any act aimed at destroying any of the rights and freedoms set forth in the Convention (see Lawless v. Ireland (merits), 1 July 1961, § 7, Series A no. 3, and Orban and Others v. France, no. 20985/05, § 33, 15 January 2009). In so far as it refers to the State, Article 17 has been relied on in alleging that a State has acted in a manner aimed at the destruction of any of these rights and freedoms or at limiting them to a greater extent than is provided for in the Convention (see, for instance, Engel and Others v. the Netherlands, 8 June 1976, § 104, Series A no. 22).
  4. The Court considers that the complaint, as formulated by the applicant, alleging a breach of Article 17 on account of the respondent States’ tolerance of the «MRT», falls outside the scope of that Article. In any case, the Court finds no evidence to suggest that either of the respondent States set out to deliberately destroy any of the rights relied on by the applicant in the present case, or to limit any of these rights to a greater extent than is provided for in the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

 

  1. Application of Article 41 of the Convention

 

  1. 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.»

 

  1. Pecuniary damage

 

  1. The applicant claimed 74,538 euros (EUR) in respect of pecuniary damage. This included the cost of the medication, food and clothes brought to him in prison, as well as the money already paid (see paragraph 22 above) or which might be paid by his parents from the sale of his apartment, in order to repay to the third party the damages awarded by the «Tiraspol People’s Court» as part of the applicant’s sentence.
  2. The Moldovan Government submitted that in the absence of a violation by the Republic of Moldova of any Convention rights no compensation was payable. In any event, there was no causal link between the violations complained of and the loss or potential loss of real estate.
  3. The Russian Government submitted that they should not be liable to pay compensation, since they could not be held responsible for any violation of the applicant’s rights. In any event, it was impossible to verify the sums claimed, which moreover appeared excessive.
  4. The Court notes that it has not found that the Republic of Moldova is responsible for any violation of the Convention in the present case. Accordingly, no award of compensation for pecuniary damage is to be made as regards this respondent State.
  5. The Court observes that it has found breaches by the Russian Federation of Articles 3, 5 § 1, 8, 9 and 13 of the Convention. However, it does not discern any causal link between the violation of these provisions and the payment of any sums of money following the applicant’s conviction. In this context it notes that no complaint under Article 6 was made and that the applicant’s conviction was not examined as part of the present case. It therefore rejects this part of the claim.
  6. Conversely, it awards the applicant EUR 5,000 in respect of the cost of his medication and treatment after his release from prison and the cost of the food and clothing which the prison could not provide, to be paid by the Russian Federation.

 

  1. Non-pecuniary damage

 

  1. The applicant claimed EUR 50,000 in respect of non-pecuniary damage in compensation for the suffering caused to him.
  2. The Moldovan Government submitted that the sum claimed was excessive.
  3. The Russian Government made a similar submission to that made in paragraph 227 above.
  4. The Court notes that it has found that Moldova was not responsible for any violation of the applicant’s rights protected by the Convention in the present case. Accordingly, no award of compensation for non-pecuniary damage is to be made with regard to this respondent State.
  5. Having regard to the violations by the Russian Federation found above and their gravity, the Court considers that an award for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant EUR 20,000, to be paid by the Russian Federation.

 

  1. Costs and expenses

 

  1. The applicant also claimed EUR 1,575 for the costs and expenses incurred before the domestic courts and EUR 14,850 for those incurred before the Court. He relied on receipts for sums paid at domestic level and on a contract with the lawyers who represented him before the Court, which included an itemised list of the hours spent on the case (99 hours at an hourly rate of EUR 150).
  2. The Moldovan Government considered that both the number of hours worked on the case and the sum claimed were excessive.
  3. The Russian Government argued that, given that the applicant’s lawyer had relied heavily on the and Others judgment and had had to carry out only limited additional research, the sum claimed for legal costs was excessive.
  4. The Court notes that it has found that Moldova, having fulfilled its positive obligations, was not responsible for any violation of the Convention in the present case. Accordingly, no award of compensation for costs and expenses is to be made with regard to this respondent State.
  5. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,000 covering costs under all heads, to be paid by the Russian Federation.

 

  1. Default interest

 

  1. The Court considers it appropriate that the default interest rate 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, unanimously, that the facts complained of by the applicant fall within the jurisdiction of the Republic of Moldova;
  2. Holds, by sixteen votes to one, that the facts complained of by the applicant fall within the jurisdiction of the Russian Federation and dismisses the Russian Government’s objections of incompatibility ratione personae and ratione loci;
  3. Dismisses, unanimously, the Moldovan Government’s objection of non-exhaustion of domestic remedies;
  4. Declares, unanimously, the complaint under Article 17 of the Convention inadmissible and the remainder of the application admissible;
  5. Holds, unanimously, that there is no need to examine separately the complaint under Article 2 of the Convention either alone or taken in conjunction with Article 13;
  6. Holds, by sixteen votes to one, that there has been no violation of Article 3 of the Convention by the Republic of Moldova;
  7. Holds, by sixteen votes to one, that there has been a violation of Article 3 of the Convention by the Russian Federation;
  8. Holds, by sixteen votes to one, that there has been no violation of Article 5 § 1 of the Convention by the Republic of Moldova;
  9. Holds, by sixteen votes to one, that there has been a violation of Article 5 § 1 of the Convention by the Russian Federation;
  10. Holds, unanimously, that there is no need to examine separately the complaint under Article 5 § 4 of the Convention;
  11. Holds, by sixteen votes to one, that there has been no violation of Article 8 of the Convention by the Republic of Moldova;
  12. Holds, by sixteen votes to one, that there has been a violation of Article 8 of the Convention by the Russian Federation;
  13. Holds, by sixteen votes to one, that there has been no violation of Article 9 of the Convention by the Republic of Moldova;
  14. Holds, by sixteen votes to one, that there has been a violation of Article 9 of the Convention by the Russian Federation;
  15. Holds, by sixteen votes to one, that there has been no violation by the Republic of Moldova of Article 13 of the Convention taken in conjunction with Articles 3, 8 and 9;
  16. Holds, by sixteen votes to one, that there has been a violation by the Russian Federation of Article 13 of the Convention taken in conjunction with Articles 3, 8 and 9;
  17. Holds, by sixteen votes to one,

(a) that the Russian Federation is to pay the applicant, within three months, the following amounts:

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

  1. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.

 

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 23 February 2016.

Guido RAIMONDI President

 PREBENSEN Deputy to the Registrar

 

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) Concurring opinion of Judge  Guerra;

(b) Dissenting opinion of Judge Dedov.

G.R.A.

S.C.P.

CONCURRING OPINION OF JUDGE  GUERRA

 

I agree with the Grand Chamber’s judgment. However, with respect to its finding of a violation of Article 5 § 1 of the Convention concerning the way in which the applicant’s arrest and detention occurred, I must express my disagreement with the reasoning contained in paragraphs 145 to 148 of the judgment. In my opinion there were sufficient grounds for finding a Convention violation without the need to formulate in those paragraphs what amounts to a wholesale invalidation of the entire judicial system of the Transdniestria region.

As I see it, and this is actually underscored as a supporting argument in paragraph 149 of the judgment, the circumstances in which the applicant was arrested and his detention was ordered and extended lead to the conclusion that his Article 5 § 1 rights were indeed violated. As shown in the findings of fact, the applicant was remanded in custody initially for an undetermined period, and on two occasions neither the applicant nor his lawyer was present at the hearings on appeal before the «MRT Supreme Court» in the proceedings to contest the detention orders.

Given these circumstances, which were clearly contrary to the Convention guarantees on detention, there was no need to justify the Court’s finding of a violation by categorically stating that neither the «MRT» courts nor any other «MRT» authority could lawfully order the applicant’s arrest or detention (see paragraph 150 of the judgment). This general conclusion is not only unsupported by the available information, but may also lead to unacceptable consequences.

The wholesale invalidation of the «MRT» judicial system appears to be the result of negative reasoning: it is the scarcity of official sources of information that prompts the Grand Chamber to consider that it «is not in a position to verify» (§ 147) whether the «MRT» courts fulfill the independence requirements derived from the Convention. Continuing this negative reasoning, the Grand Chamber concludes that «there is no basis for assuming that there is a system reflecting a judicial tradition compatible with the Convention in the region», while also admitting the lack of an in-depth analysis of the «MRT» legal system.

I find it extremely difficult to evaluate with any certainty whether a whole judicial system is in breach of the Convention on the basis of such scant evidence. But in this case, this type of evaluation poses an additional problem: if taken to its logical consequences, the Court’s finding implies that any arrest or detention order issued in respect of any person, for any reason, by the «MRT» authorities (even in cases of serious crimes or endangerment to society, persons or property) should be considered contrary to the Convention, in view of the Grand Chamber’s assessment of a general lack of judicial independence. The reasoning resulting in this extreme conclusion (one which is unavoidable according to the terms of the judgment) is unsupported by the evidence and unnecessary for the final finding of a violation of the applicant’s Article 5 § 1 rights, and should therefore have been excluded from the text of the Grand Chamber judgment.

 

DISSENTING OPINION OF JUDGE DEDOV

 

  1. I can accept that the actions of the MRT authorities in respect of the applicant did not meet Convention standards and I agree with the analysis made by the Court. However, I regret that I cannot agree with the Court’s conclusion as regards the jurisdiction of the Russian Federation over Transdniestrian territory and the sole responsibility of the Russian Federation for the violations committed by the Transdniestrian authorities.

 

The effective control approach

 

  1. Following the general principles established in Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, § 66, ECHR 2012), the Court noted that there is no evidence of any direct participation by Russian agents in the measures taken against the applicant. Nevertheless, the Court established that Russia exercises effective control over the MRT by virtue of its continued military, economic and political support for that entity, which could not otherwise survive. This led the Court to the conclusion that Russia’s responsibility under the Convention is engaged for violations committed on Transdniestrian territory.
  2. Given that support does not in itself lead to effective control, and following Judge Kovler’s dissenting opinion attached to the Catan judgment, cited above, I am not certain that this position of the Court is well founded. The fact is that the Russian Federation did not initiate the independence of the MRT. Russia provided the MRT with the military support to ensure peace and security in the border region because of the Transdniestrian military conflict, without any view to taking effective control over the MRT.
  3. There is no evidence of any direct participation by Russian agents in the measures taken against the applicant. Nor is there any evidence of Russian involvement in or approval for the MRT’s policy regarding the medical treatment of detainees or the conditions of detention in general. Nevertheless, the Court has followed the position previously adopted in other Transdniestrian cases, where it established that Russia exercises effective control over the MRT by virtue of its continued military, economic and political support for that entity, which could not otherwise survive. Moreover, in taking such an approach the Court is encouraging the Russian authorities to establish effective control in the MRT through the activity of their agents, which they have explicitly refused to do. The Court’s approach in MRT cases may fail to find acceptance because of the incorrect application of the general principles of extraterritorial jurisdiction to the circumstances of the conflict in the region (as mentioned in paragraph 1 of the opinion). In the case of Chiragov and Others v. Armenia ([GC], no. 13216/05, 16 June 2015), Judge Pinto de Albuquerque expressed a dissenting opinion criticising the Court’s conclusions with regard to Armenia’s jurisdiction over the Nagorno-Karabakh region, arguing that military, economic and political support do not legitimise a legal presumption of effective control. The same approach can be applied in Transdniestrian cases.
  4. Any discussion about effective control based on general support without the involvement of State agents is, in my view, speculation, in which no court, as a powerful institution, can afford to engage. Moreover, any discussion of the nature of the separatist «regime» or «support» for that «regime» (hidden behind the term «legal tradition») also amounts to mere speculation, since there is no evidence of mass violence against civilians as an obstacle to self-determination. However, the Court has concluded that the Transdniestrian authorities have no legitimacy. This makes the situation much worse and makes any compromise based on self-determination/autonomy almost impossible to achieve. One case cannot by itself be used as evidence to conclude that an entire legal tradition is incompatible with a human rights system, especially when compared with the Anglo-Saxon legal tradition, as this means that the tradition in question is completely illegal. This conception cannot achieve anything other than to humiliate the people of Transdniestria and of all those former Soviet republics which were recognised under international law, including under international covenants on fundamental rights, prior to their membership of the Council of Europe. It goes without saying that a society simply cannot survive without the application of minimum human rights standards and a perception of justice, although the legal tradition may admittedly have a decisive impact on the quality of life.

 

The problem of self-determination

 

  1. Although Russia has not officially recognised the independence of the MRT in the context of the process of international recognition of a new State, the Russian authorities have consistently expressed their respect for the right of the Transdniestrian people to self-determination. I would point out that the Transdniestrian problem has never been addressed by the international community (including, first and foremost, by the Council of Europe) from the standpoint of self-determination.
  2. I believe that the Court’s judgment should encourage, not the Russian Federation, but the international community and ultimately the Republic of Moldova, to assume effective control. It is not practicable to implement this idea without resolving the main problem. However the Court, in my opinion, has failed in the Transdniestrian cases (Ilascu and Others, Catan and Others and Ivantoc and Others, referred to in the judgment), and also in the present case, to establish the principles of self-determination and remedial secession after the collapse of the Soviet Union.
  3. Without such an assessment of the events and without understanding the sources of the conflict, it is impossible to determine the problem, to establish the truth and, ultimately, to find a solution. In all the previous Transdniestrian cases the Court’s analysis was very narrow and subjective. In Chiragov, cited above, the Court was for the first time criticised, by Judge Pinto de Albuquerque, for the lost opportunity to address this issue in relation to the secession of the Nagorno-Karabakh region following the independence of the former Soviet republics of Azerbaijan and Armenia. Judge Pinto de Albuquerque raised the issue of developing the self-determination principle «in a non-colonial context», and I would further define the context as a post-Soviet one.
  4. It is simply a matter of choice and legal strategy whether it is enough to protect the fundamental rights and freedoms of those who live in the region under the MRT Constitution or whether those rights and freedoms should also be safeguarded by the Convention system. I am in favour of the second option, but this task can be only achieved through the self-determination process, with the aim of providing the Transdniestrian population with some degree of autonomy within the framework of Moldovan sovereignty.
  5. I would suggest that the Court be cautious in making an assessment of the events relating to the self-proclamation of the MRT. This did not happen «as a result of foreign military intervention», as the Russian 14th Army had been located in the region since 1956 and its mission was to stop the war and to bring the opposing parties to peace. Also, it must be noted that the conflict was provoked by the Moldovan authorities’ plans to grant the Moldovan language official status and to introduce the Cyrillic instead of the Latin alphabet, without taking any account of the interests of the Russian-speaking population in Moldova, including Russian nationals, with regard to self-identity. These plans were realised in the Constitution of Moldova adopted in 1994, with all protests being disregarded.
  6. Unfortunately, international custom takes a black-and-white approach, recognising only occupiers and suffering States. But the nature of conflict is different. The conflict was caused by ignoring the minority’s fundamental right to use their native language in official correspondence with the Moldovan authorities. No transitional measures were introduced after the collapse of the Soviet Union. It seems that the international community was not ready to solve such sensitive problems relating to national identity; it did not undertake any efforts, nor did it issue any recommendations of this sort to Moldova. The international community simply recognised the jurisdiction of Moldova over Transdniestrian territory without imposing any additional requirements in the sphere of self-determination of the MRT. Without such requirements the Republic of Moldova will never have any interest in solving the problem or any incentive to do so.
  7. Guarantees for the protection of fundamental rights and freedoms relating to the self-identity and self-governance of those who live in the region were reflected in the 1997 Memorandum signed by the leaders of both Moldova and the MRT, and in the 2001 Kozak Memorandum. Again, they have never been implemented by Moldova.
  8. I am not sure that keeping the remaining military ammunition and armaments in place could prevent the transfer of effective control to Moldova, since a political agreement needs to be achieved. However, I believe that the termination by Russia of its financial support to the region — without appropriate commitments on the part of Moldova — could not be considered as a responsible measure as it would lead to social and humanitarian problems. I cannot but observe that, twenty-five years after the conflict, nothing has changed and that Russia cannot be blamed for that. Ultimately, the Republic of Moldova gave an undertaking to apply the Convention throughout its territory, including in Transdniestria.
  9. The fact that a new entity has not been recognised as a State under international law raises the issue of the responsibility of the international community and both respondent States to take all the necessary constitutional measures to bring such an uncertain situation to an end, as soon as possible, for the sake of the establishment and development of human rights, the rule of law and democracy in the region. The Russian Federation took general and balanced measures, including in the form of the Kozak plan, to transfer the region to the jurisdiction of Moldova with a degree of autonomy, so that both the Moldovan and regional interests would be satisfied. It should be noted that the regional interests cannot be ignored, especially after the war which claimed more than 1,000 victims. However, the Moldovan Government rejected the Kozak plan, leaving all the stakeholders in a situation of even deeper uncertainty. I would not blame the MRT authorities for refusing to follow the proposals as they were not invited to participate in the Court proceedings.
  10. I am not convinced that Moldova has fulfilled its obligation to take all the political, judicial and other measures at its disposal to re-establish its control over MRT territory. There is no evidence of such measures, including any aimed at providing guarantees regarding the official use of the Russian language, autonomy, representation in the Moldovan Parliament, and so forth.

16. I regret that the Court’s judgment in the present case — in a context of uncertainty with regard to self-determination — will lead to an escalation of tension between the Russian Federation and the Council of Europe.

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