Ministers' Deputies
    Notes on the Agenda

    CM/Notes/900/H46-1 15 October 2004
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    900 Meeting, 20 October 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

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    Action

    To consider 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 capable of seriously hindering 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 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 solely to supervision of the execution of judgments (“DH” meetings) but also at their 895th meeting. On the same grounds, they have continued to examine the case at each of their subsequent 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 02/06/2004. The other two applicants, Messrs Ivanţoc and Petrov-Popa, are still in detention.

    9. During the first examination of the case (894th meeting, 9 September 2004), the Permanent Representatives of the respondent states made interventions which were reproduced in full in the appendix to the notes issued for the 896th meeting. Further clarifications were provided at the 895th and 896th meetings (15 and 22 September 2004 respectively). However, no new developments in the situation of the applicants still in detention were reported.

    10. A number of delegations emphasised the urgency with which the Committee of Ministers needed to examine the case, the obligation of the respondent States to execute the judgment and the urgent nature of the measures ordered by the Court. One delegation also indicated during the first examination of the case that the two applicants who remained in detention were still being held in inhuman and degrading conditions.

    11. At the 896th meeting, the Director General of Human Rights made a statement, at the request of two delegations. The text of his intervention was reproduced in full in the records of that meeting.

    12. At the 897th meeting (DH) (28-29 September 2004), the representative of the Russian Federation reiterated some points made during the first examination of the case and indicated that new, more constructive information would be available following the expiry of the deadline for payment of just satisfaction on 8 October 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.

    13. A number of delegations welcomed the steps taken by Moldova and the more positive approach of the Russian authorities. They emphasised that payment of just satisfaction did not appear to be a complex issue and again stressed the urgency of complying with the legal obligation to execute the Court's order that the respondent States take all necessary measures to secure the immediate release of the applicants still imprisoned.

    14. At the 899th meeting (13 October 2004), the delegation of the Russian Federation indicated that, since the just satisfaction had been paid to the applicants, the Russian authorities considered that the judgment had been fully executed; it also indicated its intention of continuing to cooperate with the Court and with the Committee of Ministers. The Moldovan delegation expressed its wish to continue cooperating with the Russian authorities in order to achieve the release of the applicants still imprisoned. These interventions were reproduced in full in the records of the 899th meeting.

    15. Several delegations and the Secretariat insisted on the fact that the judgment must be executed in its entirety, and on the urgency of releasing the applicants, e.g. through diplomatic efforts. One delegation and the Secretariat added that it was clear from the terms of the judgment (see paragraph 22 of the operative part of the judgment, cited above at paragraph 6 and paragraph 490 of the judgment) that there was an obligation to achieve a result, i.e. the release of the applicants who were still imprisoned. To conclude this aspect of the case, the Committee merely needed to be informed of the release of the applicants and not of the means by which such release had been secured.

    Financing assured: Not applicable

    DRAFT DECISIONS

    900th meeting – 20 October 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)

    Decision

    The Deputies decided to resume consideration of this case at their 902nd meeting (3 November 2004).

Note 1 With the exception of their 898th meeting, which was held only one day after the 897th (DH) meeting.


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