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CM/Notes/909/H46-1corrE  / 14 December 2004 

    Ministers' Deputies
    Notes on the Agenda

    CM/Notes/909/H46-1 13 December 2004
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    909 Meeting, 15 December 2004
    4 Human Rights


    H46-1 Ilaşcu and others against Moldova and Russia – judgment of 08/07/2004 (Grand Chamber)

    Reference document
    Court judgment of 08/07/2004 (Grand Chamber)
    CM/Del/OJ/DH(2004)897/H46-48
    CM/Del/Dec(2004)899/H46-1, 900/H46-1, 902/H46-1, 904/H46-1, 907/H46-1 and 906/H46-1

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    Action

    To examine the follow-up given to the urgent individual measures ordered by the Court in the context of the above judgment.

    1. The case concerns events occurring in the “Moldavian Republic of Transdniestria” (“the MRT”), a region of Moldova known as Transdniestria, which declared its independence in 1991 but is not recognised by the international community. It concerns the unlawful detention of the four applicants (three of whom are now Romanian citizens), following their arrest in 1992 and subsequent trial by the “Supreme Court of the MRT”, and the ill treatment inflicted on them during their detention.

    The Court's findings

    2. As regards the responsibility of Moldova, the Court found (paragraphs 330 to 335 of the judgment) that:

    “330. …the Moldovan Government, the only legitimate government of the Republic of Moldova under international law, does not exercise authority over part of its territory, namely that part which is under the effective control of the 'MRT'. …
    331. However, even in the absence of effective control over the Transdniestrian region, Moldova still has a positive obligation under Article 1 of the Convention to take the diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention. …
    335. Consequently, the Court concludes that the applicants are within the jurisdiction of the Republic of Moldova for the purposes of Article 1 of the Convention but that its responsibility for the acts complained of, committed in the territory of the 'MRT', over which it exercises no effective authority, is to be assessed in the light of its positive obligations under the Convention.”

    It further noted (paragraphs 348 and 352 of the judgment) that:

    “348. The Court does not have any evidence that since Mr Ilascu's release in May 2001 effective measures have been taken by the authorities to put an end to the continuing infringements of their Convention rights complained of by the other three applicants. …
    352. The Court accordingly concludes that Moldova's responsibility is capable of being engaged under the Convention on account of its failure to discharge its positive obligations with regard to the acts complained of which occurred after May 2001.”

    3. As regards the responsibility of the Russian Federation, the Court concluded (paragraph 382 of the judgment) that:

    “the authorities of the Russian Federation contributed both militarily and politically to the creation of a separatist regime in the region of Transdniestria, which is part of the territory of the Republic of Moldova[, and] that even after the ceasefire agreement of 21 July 1992 the Russian Federation continued to provide military, political and economic support to the separatist regime…, thus enabling it to survive by strengthening itself and by acquiring a certain amount of autonomy vis-à-vis Moldova.”

    It further noted (paragraphs 392 to 394 of the judgment) that both before and after 5 May 1998 (the date of the ratification of the Convention by the Russian Federation):

    “392. …the 'MRT'… remains under the effective authority, or at the very least under the decisive influence, of the Russian Federation, and in any event…it survives by virtue of the military, economic, financial and political support given to it by the Russian Federation.
    393. That being so, the Court considers that there is a continuous and uninterrupted link of responsibility on the part of the Russian Federation for the applicants' fate, as the Russian Federation's policy of support for the regime and collaboration with it continued beyond 5 May 1998, and after that date the Russian Federation made no attempt to put an end to the applicants' situation brought about by its agents, and did not act to prevent the violations allegedly committed after 5 May 1998. …
    394. In conclusion, the applicants therefore come within the 'jurisdiction' of the Russian Federation for the purposes of Article 1 of the Convention and its responsibility is engaged with regard to the acts complained of.”

    4. As to the facts alleged, the Court found that the ill treatment inflicted on the first applicant and the conditions in which he was detained while under the threat of execution constituted torture (violation of Article 3 by Russia) and that the ill treatment inflicted on the second applicant and the conditions in which he was detained also constituted torture (violation of Article 3 by Moldova and Russia). It further found that the ill treatment inflicted on the third and fourth applicants and the conditions in which they were detained constituted inhuman and degrading treatment (violation of Article 3 by Moldova and Russia).

    5. With respect to the right of individual petition, the Court noted the difficulties experienced by the applicants in lodging their application, the threats made against them by the Transdniestrian prison authorities and the deterioration in their conditions of detention after their application was lodged.
    It noted that the Russian authorities had requested Moldova to withdraw certain observations it had submitted to the Court in October 2000 concerning the responsibility of Russia. It found that such conduct on the part of the Russian Government was likely to seriously hinder the Court's examination of an application lodged in exercise of the right of individual petition, thereby interfering with this right (violation of Article 34 by Russia).
    In addition, the Court noted certain remarks made publicly by the President of Moldova following the release of the first applicant, which made an improvement in the other applicants' situation depend on withdrawal of the application, and thus represented direct pressure intended to hinder the exercise of the right of individual petition (violation of Article 34 by Moldova).

    6. As regards the applicants' deprivation of liberty, the Court found that none of the applicants had been convicted by a “court” within the meaning of Article 5. Furthermore, a sentence of imprisonment passed by a judicial body such as the “Supreme Court of the MRT” at the close of proceedings like those conducted in the present case could not be regarded as “lawful detention” ordered “in accordance with a procedure prescribed by law”. That being so, there had been a violation of Article 5§1 of the Convention until May 2001 as regards the first applicant (violation of Article 5§1 by Russia), and there had been and continued to be a violation of that provision as regards the other applicants, still detained (violation of Article 5 § 1 by Moldova and Russia).
    Furthermore, the Court held, unanimously, that “the respondent States [were] to take all necessary measures to put an end to the arbitrary detention of the applicants still imprisoned and secure their immediate release” (paragraph 22 of the operative part of the judgment).

    Examination of the case by the Ministers' Deputies

    7. Given the terms of the judgment, the Deputies decided at their 894th meeting (9 September 2004) to continue examining the urgent measures ordered by the Court not only at their meetings devoted mainly to supervision of the execution of judgments (“DH” meetings) but also at their regular meetings.1 As indicated at paragraph 6 above, the Court indeed ordered the immediate release of the applicants still in detention. Moreover, it emphasised the urgency of this measure in the following terms (paragraph 490):

    any continuation of the unlawful and arbitrary detention of the…applicants would necessarily entail a serious prolongation of the violation of Article 5 found by the Court and a breach of the respondent States' obligation under Article 46§1 of the Convention to abide by the Court's judgment.

    It should further be emphasised that this is the first time that the Court has ruled on a potential breach of Article 46 § 1.

    8. According to the information available to the Secretariat, only two of the four applicants have been released to date. Mr Ilaşcu was released in May 2001 (as noted by the Court) and Mr Leşco at the expiry of the sentence imposed on him by the “Supreme Court of the MRT”, on 02 June 2004. The other two applicants, Messrs Ivanţoc and Petrov-Popa, are still imprisoned. No new developments in the situation of these applicants have been reported.

    - Observations of the respondent States

    9. During the first examination of the case (894th meeting, 9 September 2004), the Permanent Representative of Moldova stated that the Moldovan authorities had sent letters to the Russian authorities, the Secretary General of the Council of Europe and the Norwegian Chairmanship of the Committee of Ministers, requesting their assistance in obtaining the release of applicants who were still imprisoned. The first two letters were also forwarded to the Committee and distributed during the same meeting. However, the Moldovan authorities considered, given the current tensions between Chišinau and Tiraspol, that for the time being their influence on Tiraspol on this point was minimal.2

    10. Subsequently, at the 897th meeting (DH) (28-29 September 2004), the Moldovan Delegation provided proof of payment of just satisfaction and of publication of the translated judgment in the Official Gazette, and reaffirmed its readiness to see the judgment executed rapidly. The Moldovan Delegation again referred, at the 899th and 900th meetings (13 and 20 October 2004 respectively), to the efforts undertaken by Moldova in various international fora and reiterated its wish to continue cooperating with the Russian authorities in order to achieve the release of the applicants still imprisoned. It also recalled that the presence of Russian military forces in the territory of the region of Transdniestria tended to indicate that the Russian Federation should be in a position to support efforts of the international community to put an end to the detention of the applicants who were still imprisoned.

    11. At the 902nd meeting (3 November 2004), the Permanent Representative of Moldova reiterated his authorities' readiness to participate in any concerted effort towards the release of the applicants who were still imprisoned. He further suggested that positive results could be achieved if the efforts under way in other contexts towards resolving the situation in Transdniestria were combined with the work done by the Committee in the context of its supervision of the present judgment.

    12. At the 904th meeting (17 November 2004), the Moldovan delegation indicated that, on 15 November 2004, the Representative of the Republic of Moldova for political issues in the settlement of the Transnistrian conflict had addressed a letter to his counterpart in the region of Transnistria, inviting the latter to take the necessary measures to facilitate the release of the applicants who were still in detention. This letter was distributed during the meeting.

    13. At the request of the Moldovan delegation, the letter sent on 8 November 2004 by Mr Nicolae Eşanu, Deputy Minister of Justice of the Republic of Moldova, to Mr Victor Balala, “Minister of Justice” of the “MRT”, was also distributed at the 907th meeting (24 November and 1 December 2004). The delegation also emphasised that the case must only be examined in terms of the legal obligations arising from the judgment, the execution of which could not be considered by this Committee in a political context.

    14. At the 906th meeting (DH) (8-9 December 2004), the Moldovan delegation recalled the démarches described above and indicated that no response had yet been received from the authorities of the “MRT”. In reply to the declaration of the Russian Federation (see below, § 20), the representative of Moldova also emphasised that the execution of the judgment should not be connected to the political solution of the situation in Transnistria and that the judgment requires both respondent States to take appropriate measures.

    15. As regards the Russian Federation, its Permanent Representative referred at the 894th meeting (9 September 2004) to the position put forward by the Russian authorities in the press release issued by the Ministry of Foreign Affairs on 8 July 2004, which was forwarded to the Committee and distributed at the meeting. He emphasised the Russian authorities' disagreement with the judgment on both legal and political levels and their view that since the applicants' lives were not in danger, Article 46 § 1 of the Convention was not pertinent. Concerning possible execution measures or measures already taken, the Russian authorities considered that they were not in a position to execute the judgment, since releasing the applicants through the use of force was out of the question. Furthermore, the Permanent Representative informed the Committee of his instructions not to participate in its examination of the case, except in a “DH” context, until otherwise instructed.3

    16. Subsequently, the representative of the Russian Federation reiterated these points. At the 899th meeting (13 October 2004), the delegation further indicated that, since the just satisfaction had been paid to the applicants on 8 October 2004, the Russian authorities considered that the judgment had been fully executed. Furthermore, since the various possibilities that the Russian authorities had explored had not proved successful and the use of force to free the imprisoned applicants was out of the question, the Russian authorities considered that the subject had been exhausted. They were, however, ready to continue co-operating with the Court and the Committee of Ministers.4

    17. At the 900th meeting (20 October 2004), the representative of the Russian Federation stated that the Russian authorities considered that, in abiding by the terms of § 22 of the operative part of the judgment, they would breach the principle of non-interference in the internal affaires of a sovereign state (Moldova). The Russian Federation put forward three proposals: first, to seek the assistance of the Council of Europe's Commissioner for Human Rights; second, to forward to various international bodies a request concerning the interpretation of § 22 of the operative part of the judgment, accompanied by the suspension of the execution of this paragraph until an opinion was delivered; and third, to request the Court to set out its interpretation of its own position regarding state immunity as expressed in the Al-Adsani judgment of 21 November 2001. Finally, the Russian authorities recalled the Loizidou case, in the context of which, in their opinion, the Committee of Ministers had directly linked the execution of one part of the judgment to the political settlement of the conflict.5

    18. At the 902nd meeting (3 November 2004), the Permanent Representative of the Russian Federation recalled the points previously raised and indicated some possible lines of action, such as the involvement of the Organisation through the Special Representative of the Secretary General in Chišinau or steps taken in conjunction with Moldova. He underlined the difficulties that his authorities considered inherent in the execution of the judgment and the need to find a solution to this situation.

    19. At the 904th meeting (17 November 2004), the Permanent Representative of the Russian Federation recalled the position of his authorities and indicated that there were no new elements to be taken into account.

    20. At the 907th meeting (24 November and 1 December 2004), the Permanent Representative of the Russian Federation emphasised that his authorities considered that they had fulfilled their obligations completely by paying the just satisfaction awarded to the applicants; the examination of the case should therefore be closed as concerned any measures to be taken by the Russian Federation. The execution of the second part of the judgment should, in the view of the Russian authorities, be dealt with in the framework of the political resolution of the situation in Transdniestria.6 The representative of the Russian Federation recalled this position at the 906th meeting (DH) (8-9 December 2004) and emphasised that the Russian authorities consider that is for the other respondent state to take the necessary steps.

    - Observations of other delegations

    21. Although the payment of the just satisfaction by both of the respondent States and the publication of the judgment by the Moldovan authorities have been welcomed, a number of delegations, including the Dutch delegation on behalf of the European Union, have repeatedly insisted on the urgency with which the Committee of Ministers needs to examine the case, and on the legal obligation of the respondent States to execute the judgment in its entirety, fully complying with the Court's order that they take all necessary measures to secure the immediate release of the applicants still imprisoned. It has also been emphasised, a number of times, that respondent States are not at liberty to choose whether or not to execute certain parts of a judgment. Moreover, the question whether the lives of the applicants are at risk has no bearing on the respondent States' obligation to take the necessary measures.

    22. Furthermore, it has been stressed that the role and the duty of the Committee with respect to the Court's judgments is to ensure that they are fully executed. It has also been recalled that the obligation of States arising from the Court's judgments is one of results and not of means; thus, as regards the individual measures required in the present case, the Committee has to be informed not of the means used by the respondent States to execute the judgment but simply that the applicants have been released.

    23. One delegation also indicated that the two applicants who remained in prison are still being held in inhuman and degrading conditions.

    24. At the 902nd meeting (3 November 2004), one delegation, referring to the proposals made by the Russian authorities during the previous examination of the case, indicated that, while the assistance of the Commissioner for Human Rights could prove helpful, it should not be linked to the respondent States' obligations arising from the present judgment. It further recalled that the European human rights system, which all Council of Europe member States have accepted, leaves no room for involvement by other bodies; only the Committee of Ministers is empowered to decide whether a judgment of the European Court has been fully executed. Finally, it was not convinced that raising the issue of state immunity with the Court was relevant in the present case.7

    25. At the 906th meeting (DH) (8-9 December 2004), the representative of the Netherlands recalled the constant position of the European Union that the judgment must be executed in its entirety. He indicated that the European Union is ready to provide support to facilitate the process, but stressed that the execution of the judgment is a legal obligation that binds both the respondent states. He also emphasised that Russian authorities' argument that it was for the authorities of the other respondent state to take the necessary measures was unacceptable. A number of delegations joined their voices to this declaration and, further, requested the Russian delegation to provide information concerning the publication and dissemination of the judgment by the Russian authorities.

    - Observations of the Secretariat

    26. The Director General of Human Rights made statements at the 896th, 899th and 900th meetings (22 September, 13 October and 20 October 2004 respectively).8 He particularly emphasised the urgency of the examination of the case, in view of the terms of the judgment itself. He also stressed the point that in the present case, what the Committee needs to know is that the applicants have been released.

    27. He further recalled that respondent States have the opportunity to defend their case in full before the Court. At the execution stage, judgments are a fact which is no longer open to dispute, States having taken upon themselves, in conformity with Article 46 § 1 of the Convention, the obligation to abide by judgments. The Committee of Ministers is required, for its part, in carrying out its functions under Article 46 § 2, to supervise the implementation by respondent States of the – strictly legal – obligations arising out of the judgments of the Court.

    28. As concerns the declaration made by the Russian Federation at the 900th meeting (20 October 2004), the Director General indicated that member States of the Council of Europe, by acceding to its Statute, accept each member State's right to the examine the human rights situation in each of the other member States. Although this would in effect amount, in classical international law terms, to interference in their internal affairs, this is no longer considered to be the case. A fortiori, the principle of non-interference in the internal affairs of a State cannot be invoked so as to prevent the proper execution of a judgment of the Court.

    29. The Director General of Human Rights further recalled at the 900th meeting (20 October 2004) that the situation in Cyprus, which is a political matter dealt with by the Committee under the appropriate agenda item, is an issue that is separate from the implementation of the judgments in the Loizidou case, which are a strictly legal matter that the Committee has always dealt with in a legal framework. On this second point, the Committee was responsible for supervising the execution of two distinct judgments: one on the merits, which is still pending before the Committee, and one as to just satisfaction, the examination of which has now been closed; the distinction between the judgments was made by the Court itself. In contrast, in the Ilaşcu case, the Court delivered a single judgment. While both the Committee and the Secretariat have welcomed the payment of just satisfaction by the respondent States, this constitutes only one aspect of the judgment, in which the Court, by the very terms it used in the judgment, emphasised the question of substance, that is the release of the applicants who are still imprisoned. On this point, he again underlined that the case could be closed once the Committee of Ministers was in a position to take note of the applicants' release.

    30. At the 906th meeting (DH) (8-9 December 2004), the Director General of human rights noted that all the statements made by delegations other than those of the respondent states were along the same lines in calling upon the latter to take the necessary measures. He recalled that the judgment is clear: the Court expressly ordered, as a matter of urgency, the release of the applicants who remain imprisoned. While the Committee can take into account certain political difficulties encountered at the execution stage, this is only possible on condition, first, that the Court's findings are not called into question, and second, that the respondent states demonstrate their willingness to execute the judgment fully. In this respect the Director General also recalled that the Court found the respondent States' responsibility in the present case to have been engaged on different bases, and that, in consequence, the measures that can be asked of them are different. Finally, he drew the Committee's attention to its supervisory role under Article 46 § 2 of the Convention, and its duty to react where unacceptable positions are taken.

    Financing assured: Not applicable

    DRAFT DECISION

    909th meeting (DH) – 15 December 2004

    Item H46-1

    Ilaşcu and others against Moldova and Russia
    Judgment of 08/07/2004 – Grand Chamber - Application of Article 46, paragraph 2, of the European Convention on Human Rights as amended by Protocol No. 11
    (Court judgment of 08/07/2004 (Grand Chamber), CM/Del/OJ/DH(2004)897/H46-48, CM/Del/Dec(2004)899/H46-1, 900/H46-1, 902/H46-1, 904/H46-1, 907/H46-1 and 906/H46-1)

    Decision

    The Deputies decided to resume consideration of this case at their 910th meeting (6 January 2005).

Note 1 See the decisions taken at the 894th, 895th, 896th, 897th, 899th, 900th, 902nd, 904th, 907th and 906th meetings.
Note 2 This intervention was reproduced in full in the appendix to the notes issued for the 896th meeting.
Note 3 This intervention was reproduced in full in the appendix to the notes issued for the 896th meeting.
Note 4 This intervention was reproduced in full in the records of the 899th meeting.
Note 5 This intervention was reproduced in full in the records of the 900th meeting.
Note 6 This intervention was reproduced in full in the records of the 907th meeting.
Note 7 The text of this intervention was reproduced in the records of the 902nd meeting.

    8 The text of the interventions made at the 896th and 900th meetings was reproduced in full in the records of those meetings.



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