Ministers’ Deputies
Notes on the Agenda

CM/Notes/984/H46-1 11 January 20071
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984 Meeting, 17 January 2007
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 documents
CM/Inf/DH(2006)17 rev21
CM/Inf/DH(2006)52
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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 213.

The measures taken by the member states with a view to facilitating the execution of this judgment will appear in document CM/Inf/DH(2006)524.

Introduction

1. The case concerns violations committed against the applicants in the “Moldavian Republic of Transdniestria” (“the MRT”), a region of Moldova which declared its independence in 1991 but is not recognised by the international community, after they had been handed over to the “authorities” of the MRT by the former 14th army in 1992. Two applicants, Mr Ivanţoc and Mr Petrov-Popa, are still imprisoned.

The Court’s findings

2. The Court concluded that the applicants are within the jurisdiction5 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 (§ 335). Not having been informed of any new steps by the Moldovan authorities after Mr. Ilaşcu’s release in May 2001 aimed at obtaining the release of the applicants still detained, the Court concluded that Moldova’s responsibility could be engaged, because it was within the power of the Moldovan government to take measures to secure the applicants’ rights under the Convention (§ 351-352).

3. Furthermore, the Court held that the actions of Russian soldiers with regard to the applicants, including their transfer to the charge of the separatist regime in the context of the Russian authorities’ collaboration with this illegal regime, were such as to engage the responsibility of the Russian Federation (§ 385). In view of the fact that the Russian Federation’s policy of support for and collaboration with the regime has continued beyond 5 May 1998, the date on which the Russian Federation ratified the Convention, and that since that date the Russian Federation has made no attempt to put an end to the applicants’ situation brought about by its agents, the Court concluded that the applicants also come within its “jurisdiction” for the purposes of Article 1 of the Convention, and that its responsibility is engaged (§ 393-394).

4. The Court found several violations of the Convention. In particular, taking into account its conclusions as to the respondent states’ responsibility, the Court said that there has been and continues to be a violation of Article 5 of the Convention by Moldova since May 2001 as regards the applicants still detained; that there was a violation of Article 5 of the Convention by the Russian Federation as regards Mr Ilaşcu until May 2001, and that there has been and continues to be a violation of that provision as regards the applicants still detained.

5. Accordingly, the Court found 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” (§ 22 of the operative part of the judgment).

6. Moreover, it emphasised the urgency of this measure in the following terms (§ 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.”

Payment of just satisfaction and publication of the judgment

7. Just satisfaction has been paid by both respondent states6.

8. The full text of the judgment has been published by the Moldovan authorities; a summary of the judgment has also been published in the Bulletin of the European Court of Human Rights (Russian edition)7. However, the Committee has not been informed of the publication of the full text of the judgment in Russian, despite the case’s importance and Russia’s practice with regard to other important judgments.

Measures taken by the Committee of Ministers to ensure the execution of the judgment as regards the continuation of the unlawful and arbitrary detention of Mr Ivanţoc and Mr Petrov-Popa

9. In view of the continuation of the unlawful and arbitrary detention of two of the applicants, the Committee of Ministers has undertaken several steps with a view to ensuring the execution of the judgment, and in particular adopted four 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
      - Interim Resolution ResDH(2006)26, adopted on 10 May 2006

10. In the latest of these Resolutions, the Committee of Ministers, “regret(s) profoundly that the authorities of the Russian Federation have not actively pursued all effective avenues to comply with the Court’s judgment, despite the Committee’s successive demands to this effect”. In view of this situation, in this Resolution, the Committee of Ministers:

    “ - Encourages the authorities of the Republic of Moldova to continue their efforts towards putting an end to the arbitrary detention of the applicants still imprisoned and securing their immediate release;
    - Declares the Committee’s resolve to ensure, with all means available to the Organisation, the compliance by the Russian Federation with its obligations under this judgment;
    - Calls upon the authorities of the member states to take such action as they deem appropriate to this end.”

Follow up-by the respondent states to Interim Resolution ResDH(2006)26

11. Following this Resolution, the Moldovan authorities indicated (at each of the fourteen examinations of the case since the adoption of the Resolution) that they were pursuing their efforts towards the release of the applicants still detained.

12. As to the Russian authorities, they reiterated (four times since the adoption of the Resolution) their initial position concerning the execution of this judgment, namely that in order not to interfere in internal affairs of another state, they could do no more than pay the just satisfaction allocated by the Court, which has already been done. However, at the last examination of this case (982nd (DH) meeting, 5-6 December 2006), they referred to their efforts with a view to restoring, at a general level, a positive context which should facilitate the dialogue between the Moldovan authorities and the Transdniestrian “authorities”.

Other information

13. During the last examination of this case (982nd (DH) meeting, 5-6 December 2006), the Finnish Delegation 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), Iceland, Liechtenstein and Norway, members of the European Free Trade Agreement (EFTA) and of the European Economic Area (EEA) as well as Ukraine, Georgia and Azerbaijan.

14. These states recalled the necessity of executing this judgment, which has already been the subject of four interim resolutions. They also recalled that the Court held, on the one hand, 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 and, on the other hand, that any continuation of the unlawful and arbitrary detention of the applicants would necessarily entail a breach of the respondent states’ obligation under Article 46§1 of the Convention to abide by the Court’s judgment.

15. They declared that the non-execution of this judgment undermines the credibility of the Council of Europe and of the European Court of Human Rights. These states therefore urged the parties concerned to take all possible measures to bring about the immediate release of the applicants.

16. Again, they expressed the wish that Interim Resolution ResDH(2006)26 be disseminated to the attention of the UN and of the OSCE.

17. The whole of the recent positions of the delegations and of the Secretariat is reflected in document CM/Inf/DH(2006)17 rev21.

Financing assured: Not applicable

DRAFT DECISION

984th meeting – 17 January 2007

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 21 and CM/Inf/DH(2006)52)

Decision

The Deputies decided to resume consideration of the measures taken towards the execution of the Court’s judgment at their 985th meeting (31 January 2007).

Note 1 Following the adoption on 10 May 2006 of the “Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements” and according to Rule No. 8.4, the present notes on the agenda are accessible to the public.
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 Document CM/Inf/DH(2006)17 revised 21 is available on the Committee of Ministers’ Internet site.
Note 4 Document CM/Inf/DH(2006)52 is available on the Committee of Ministers’ Internet site.
Note 5 Indeed, the Court held that where a contracting state is prevented from exercising its authority over the whole of its territory by a constraining de facto situation such as obtains when a separatist regime is set up, it does not thereby cease to have jurisdiction within the meaning of Article 1 of the Convention over that part of its territory which is outside its effective control, but the scope of that jurisdiction is reduced (§ 333).
Note 6 Interim Resolution ResDH(2005)42, adopted on 22 April 2005.
Note 7 Interim Resolution ResDH(2005)42, adopted on 22 April 2005.


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