Ministers’ Deputies
Notes on the Agenda

CM/Notes/964/H46-1 9 May 20061
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964 Meeting, 10 May 2006
4 Human Rights


H46-1 Ilaşcu and others against Moldova and the Russian Federation – 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

Reference document
CM/Inf/DH(2006)17 revised 4
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Action
To request information from the respondent states regarding the measures taken towards securing the release of the applicants who are still imprisoned.

The background of the examination of this case by the Deputies2 appears in document CM/Inf/DH(2006)17 revised 4.

The Court’s findings

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.

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.”

3. 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.”

4. 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.”

5. 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.”

6. The main point of the judgment is 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 the Russian Federation), 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 the Russian Federation).
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). 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.”

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

The excessive prolongation of the unlawful and arbitrary detention of Mr Ivanţoc and Mr Petrov-Popa

8. To date, only two of the four applicants have been released. 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 2 June 2004.

9. The other two applicants, Messrs Ivanţoc and Petrov-Popa, are still imprisoned.

10. The follow up given by the respondent states to their obligation to take all necessary measures to put an end to the arbitrary detention of the applicants still imprisoned and secure their immediate release are presented in details in document CM/Inf/DH(2006)17 revised 4 and reference to it is made in the Interim Resolutions adopted by the Committee of Ministers (see below).

Payment of just satisfaction and publication of the judgment

11. Concerning the other aspects of the execution of this judgment, the Committee of Ministers took note3 of the payment of just satisfaction by both respondent states, of the publication of the full text of the judgment by the Moldovan authorities and of the publication of a summary of the judgment in the Bulletin of the European Court of Human Rights (Russian edition).

12. On the latter point, it is recalled that at the 928th meeting (6-7 June 2005), a delegation asked when the full text of the judgment would be published in Russian. The Director General of Human Rights returned to this question at the 933rd meeting (5-6 July 2005). In response, the Russian delegation indicated in a letter of 14 July 2005 that it considers that the publication that was made of the summary of the judgment is sufficient and corresponds to the Committee’s practice. As for the Secretariat, it drew the delegation’s attention to the case’s importance and Russia’s practice with regard to other important judgments that were published in full in the Rossijskaia Gazeta. On that subject, it also drew attention to Recommendation Rec(2002)13 “on the publication and dissemination in the member states of the text of the European Convention on Human Rights and of the case-law of the European Court of Human Rights”.

Measures taken by the Committee of Ministers and the Chair of the Committee of Ministers

13. In view of the prolongation of the unlawful and arbitrary detention of two of the applicants, the Committee of Ministers adopted three interim resolutions:

    - Interim Resolution ResDH(2005)42, adopted on 22 April 2005
    - Interim Resolution ResDH(2005)84, adopted on 13 July 2005
    - Interim Resolution ResDH(2006)11, adopted on 1 March 2006

14. In the most recent of these resolutions, “deeply deploring the fact that, more than one and a half years after the Court’s judgment was delivered, two applicants are still imprisoned and stressing that the excessive prolongation of the unlawful and arbitrary detention of Mr Ivanţoc and Mr Petrov-Popa fails entirely to satisfy the requirements of the Court’s judgment and the obligation under Article 46, paragraph 1, of the Convention”, the Committee of Ministers “not(ed) however that the Moldovan authorities have regularly informed the Committee of the steps they have taken to secure the applicants’ release” and “that the Russian authorities have recently declared themselves in favour of the search for a solution in the present case”. The Committee “encourage(d) the Moldovan authorities to continue their efforts towards putting an end to the arbitrary detention of the applicants still imprisoned and securing their immediate release”, “strongly urge(d) the Russian authorities to pursue actively all effective avenues capable of putting an end to the arbitrary detention of the applicants still imprisoned and of securing their immediate release”, and “insiste(d) that the results required by the Court’s judgment be attained without any further delay”.

15. The then Chairman of the Committee of Ministers, the Portuguese Minister of Foreign Affairs, Mr Diogo Freitas do Amaral, handed over in person to his Russian colleague, Mr. Serguei Lavrov, a letter of 18 October 2005 prepared in accordance with the Committee’s request, calling for the execution of this case.

16. The steps taken to date by the present Chair of the Committee of Ministers are presented in the document CM/Inf/DH(2006)17 revised 4.

Summing up of the most recent examination of the case by the Deputies (963rd meeting, 3 May 2006)4

17. The Permanent Representative of Moldova informed the Deputies of the response of the State Secretary of the Ministry of Justice of the Russian Federation to a letter from the Moldovan Minister of Justice. This response recalls in particular that the Russian Federation considers that no further measures for the implementation are necessary as far as the Russian Federation is concerned. The French translation of an extract of this answer is available from the Secretariat.

18. The Permanent Representative once again stated that his authorities were doing their best to put an end to the unlawful and arbitrary detention of the applicants.

19. The Representative of Austria made a statement on behalf of the European Union with the support of the acceding countries (Bulgaria and Romania), the candidate countries (Croatia, “the former Yugoslav Republic of Macedonia” and Turkey), the countries of the stabilisation and association process and potential candidates (Albania, Bosnia and Herzegovina and Serbia and Montenegro), Iceland, Liechtenstein, Norway and Switzerland (these four states being members of the European Free Trade Agreement – EFTA -, and the first three of them also being members of the European Economic Area - EEA) as well as Ukraine and Monaco.

20. These states once again insisted on the necessity of executing this judgment and recalled the conclusions of the third Interim Resolution adopted by the Committee of Ministers. They stated, with deep regret, that the parties concerned have not secured the release of the detainees and therefore suggested that the Secretariat draft a new Interim Resolution which takes into account this fact.

21. These states again said that they wished the Russian Chairmanship to be a success for Russia and the Council of Europe, but they considered that the non-execution of this judgment would undermine that prospect and send a negative message to the international community.

22. The Permanent Representative of Switzerland noted the Committee’s determination to bring about the execution of the judgment by the respondent states, in particular by the Russian Federation.

23. Following the debate, the Deputies instructed the Secretariat to prepare a fourth draft Interim Resolution. A draft was issued to all delegations by e-mail on 5 May 2006 and by van on 9 May 2006.

Financing assured: Not applicable

DRAFT DECISION

964th meeting – 10 May 2006

Item H46-1

Ilaşcu and others against Moldova and the Russian Federation –
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

(CM/Inf/DH(2006)17 revised 4)

Decision

The Deputies decided to resume consideration of the measures taken towards the execution of the Court’s judgment at their 965th meeting (24 May 2006).

Note 1 This document has been classified restricted at the date of issue. Unless the Committee of Ministers decides otherwise, it will be declassified according to the rules set up in Resolution Res(2001)6 on access to Council of Europe documents.
Note 2 It is recalled that 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. The Committee has examined the case at most of its meetings since 9 September 2004.
Note 3 Interim Resolution ResDH(2005)42, adopted on 22 April 2005.
Note 4 Previous examinations of this case are reflected in document CM/Inf/DH(2006)17 revised 4 which is available on the Committee of Ministers’ Internet site.


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