Ministers' Deputies
Notes on the Agenda

CM/Notes/926/H46-1 10 May 20051
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926 Meeting, 11 May 2005
4 Human Rights


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

Reference documents
Court judgment of 08/07/2004 (Grand Chamber)

Interim Resolution ResDH(2005)42
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Action

To inquire of the respondent States as to the measures taken towards securing the release of the applicants who are still imprisoned.

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). 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.

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. The Committee has examined the case at most of its meetings since 9 September 2004.2

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 2 June 2004. The other two applicants, Messrs Ivanţoc and Petrov-Popa, are still imprisoned.

9. On 22 April 2005, at its 924th meeting, the Committee of Ministers adopted an interim resolution concerning this case (ResDH(2005)42). In this resolution, the Committee took note of the measures taken to that date by the respondent States towards the execution of the present judgment, in particular the payment of just satisfaction by both respondent States, the publication of the full text of the judgment by the Moldovan authorities and the publication of a summary of the judgment in the Bulletin of the European Court of Human Rights (Russian edition). In addition, stressing that it was evident that the continuation of the unlawful and arbitrary detention of two of the applicants for more than 9 months after the Court's judgment failed to satisfy the Court's demand for their immediate release, and noting in addition that the steps taken to date have not been sufficient to secure the release of Mr Ivanţoc and Mr Petrov-Popa, the Committee urgently invited the Russian authorities to comply fully with the judgment; invited the Moldovan authorities to continue their efforts towards securing the release of the two applicants who are still imprisoned; and decided to resume its examination of this case at each of its meetings until the applicants' release.

- Observations of the respondent States regarding the steps taken to secure the release of the applicants who are still imprisoned

10. 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.3

11. 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.

12. 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.

13. 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.

14. 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.

15. 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 § 31 below), 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.

16. On 4 February 2005, the Moldovan delegation circulated a statement by the Minister of Reintegration of the Republic of Moldova regarding the continued detention of two of the applicants. The representative of Moldova indicated at the 914th meeting (DH) (7-8 February 2005) that the Moldovan Parliament, Ministry of Justice and Ministry of Foreign Affairs were working actively to ensure the applicants' release.

17. A letter of 9 February 2005 from the Chairperson of the Parliament of the Republic of Moldova to her Russian counterpart was distributed on 14 February 2005 at the request of the Moldovan delegation. The Deputy Prime Minister and Minister of Foreign Affairs also wrote on 10 February 2005 to the Executive Director of Amnesty International Moldova and to the Chairman of the Moldovan Helsinki Committee for Human Rights; these letters were distributed on 21 February 2005.

18. At the 917th meeting (2 March 2005), the Permanent Representative of Moldova referred to new diplomatic and political measures taken by his authorities in order to secure the immediate and unconditional release of the two applicants who are still imprisoned. He also referred to a letter sent by the Chairman of the Moldovan Helsinki Committee for Human Rights to the President of the Russian Federation on 25 February 2005. This letter is available from the Secretariat to interested delegations.

19. At the 919th meeting (16 March 2005), the Permanent Representative of Moldova stated that the Transdniestrian authorities had recently prevented Mr Ivanţoc's wife from visiting him and bringing him the food that she normally provides for him because the food provided by the authorities does not correspond to the dietary requirements of the applicant. The Permanent Representative of Moldova further indicated that the sentences imposed on the two applicants who were still in detention would not expire for another three years; it was therefore all the more important to continue the efforts towards securing their release.

20. At the 920th meeting (23 March 2005), the Permanent Representative of Moldova referred to the speech made by the Deputy Minister of Foreign Affairs of Moldova on 17 March 2005 to the United Nations Commission on Human Rights. In this speech, the Deputy Minister raised the situation of the applicants who are still imprisoned and called on the members of the Commission and the international community to use all the means at their disposal to support the efforts towards the fulfillment of the present judgment.

21. Following the adoption, at the 924th meeting (20 and 22 April 2005), of an interim resolution concerning the execution of this judgment (ResDH(2005)42), the Permanent Representative of Moldova emphasised that his authorities considered that the text could have been fairer and more balanced, while remaining closer to the terms of the judgment, in particular if the amendments proposed by the Moldovan authorities had been retained. Nevertheless, his authorities had decided for a number of reasons not to oppose the adoption of this interim resolution. He stressed in this respect that his authorities were firmly attached to the European values of unity, compromise and constructive dialogue, and that they hoped that this resolution would constitute a step towards the release of the two applicants who were still imprisoned. He stated moreover that the Moldovan authorities had not needed in the past and would not need in future this kind of resolution as additional stimulus to comply with the judgments of the Court.4

22. At the 925th meeting (4 May 2005), the Permanent Representative of Moldova referred to the statement made by Ambassador Dumitru Croitor, Permanent Representative of Moldova to the United Nations Office at Geneva, at the 61st session of the Commission on Human Rights in April 2005. In this statement, Ambassador Croitor recalled the present judgment and the need to execute it in full – noting, however, that the individual efforts of the Moldovan authorities would not suffice to achieve this. He called upon the member and observer States of the Commission to use every means available to them to support the execution of the judgment and to denounce the unlawful detention of the applicants. In addition, the Permanent Representative of Moldova to the Council of Europe reiterated at the same meeting his authorities' commitment to complying fully with the judgment and invited his counterparts to indicate any further measures that his authorities might so far have failed to identify in this respect.

23. 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.5

24. Subsequently, the representative of the Russian Federation reiterated these points. At the 899th meeting (13 October 2004), the delegation further indicated that, since the sums awarded in 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.6

25. 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 affairs of a sovereign state (Moldova). The Russian Federation therefore put forward three proposals aimed at overcoming this situation.7

26. 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.

27. 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.

28. 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 sums awarded in just satisfaction 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.8 The representative of the Russian Federation recalled this position at the 906th meeting (DH) (8-9 December 2004) and emphasised that the Russian authorities consideed that was for the other respondent state to take the necessary steps.

29. At the 911th meeting (12 January 2005), the Permanent Representative of the Russian Federation informed the Committee that a summary of the judgment had been published in the Bulletin of the European Court of Human Rights (Russian edition) in December 2004. He also recalled that the Secretary General would soon be going to Moldova and stated that the Russian authorities hoped that this visit might give him the opportunity to raise with the authorities in Transdniestria the situation of the applicants who are still in detention.

30. At the 917th meeting (2 March 2005), the Permanent Representative of the Russian Federation indicated that his authorities had contacted the Transnistrian authorities with regard to this case but that the latter authorities remained intransigent.

31. At the 921st meeting (30 March 2005), the Permanent Representative of the Russian Federation emphasised that the Russian authorities had undertaken several diplomatic démarches vis-à-vis the Transdniestrian authorities but unfortunately without results.

32. At the 924th meeting (20 and 22 April 2005), the representative of the Russian Federation indicated that her authorities considered the French version of the interim resolution which had just been adopted (ResDH(2005)42) to be the authentic text.

- Observations of other delegations

33. Although the payment of the just satisfaction by both of the respondent States and the measures taken to publish the judgment 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 been recalled in this regard that the terms of the judgment themselves require the respondent States to take urgent action. 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.

34. 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 been recalled that this supervision should not become simply a matter of routine and that it is a matter of urgency that initiatives be taken that are on a par with the level of importance of the case. 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.

35. Several delegations have, furthermore, indicated that the two applicants who remain in prison are still being held in inhuman and degrading conditions. One delegation has indicated that for M. Ivanţoc, whose state of health was already serious at the time of the judgment, his conditions of detention had worsened following the judgment, and that this had naturally affected his state of health. The doctors who had been able to examine the applicant considered his state of health to be serious. As to Mr Petrov-Popa, he was subjected to a regime of severe isolation, and was deprived not only of visitors but also, for example, of newspapers in his mother tongue. These conditions of detention, which continued to cause considerable psychological stress to the two applicants, had already been the subject of a finding by the Court of a violation of Article 3.

36. It has also been emphasised that the Committee's imperative aim must be the release of the applicants who are still imprisoned.

37. At the 924th meeting (20 and 22 April 2005), the Permanent Representative of Luxembourg expressed the satisfation of the member States of the European Union regarding the adoption of an Interim Resolution concerning this case (ResDH(2005)42). He stressed, however, that two of the applicants were still imprisoned and that their imprisonment had already lasted a number of years. He expressed the firm hope that the Interim Resolution which had just been adopted would provide an additional incentive for the relevant parties in order to secure the release of these applicants.

38. At the 925th meeting (4 May 2005), several delegations called upon both respondent states to comply with Interim Resolution ResDH(2005)42 by fully executing the judgment. They emphasised that every constructive means of obtaining the release of the applicants who are still imprisoned should be used.

- Observations of the Secretariat

39. The Director General of Human Rights made statements at the 896th, 899th, 900th, 906th and 924th meetings (22 September, 13 October, 20 October and 8-9 December 2004 and 20 and 22 April 2005 respectively).9 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.

40. At the 906th meeting (DH) (8-9 December 2004), the Director General of Human Rights recalled why the Committee had decided to treat this case urgently and to examine it at each of its meetings. The judgment is particularly clear and exact: the Court ordered the immediate release of the applicants who remain imprisoned. While the Committee can take into account certain 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 clearly show 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, which implies, among other things, reacting against positions which are not in line with the spirit of the procedures for supervising the execution of judgments and considering what should be done if no progress is noted.

41. At the 924th meeting (20 and 22 April 2005), the Director General of Human Rights welcomed the adoption of an interim resolution (ResDH(2005)42 concerning the execution of the judgment, and stressed that the Secretariat hoped that this resolution would rapidly produce concrete results. He also recalled that the Committee of Ministers is responsible for ensuring the execution of the Court's judgments and that, even though the Committee is the executive organ of the Council of Europe, in the context of the execution of the Court's judgments its action is based on the European Convention on Human Rights. Consequently, the Director General invited the Deputies to reflect on the manner in which the present case had been dealt with to date and consider what lessons may be learned for the future.

Financing assured: Not applicable

DRAFT DECISION

926th meeting – 11 May 2005

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
(Court judgment of 08/07/2004 (Grand Chamber), Interim Resolution ResDH(2005)42)

Decision

The Deputies decided to resume consideration of the measures taken towards the execution of the judgment of the Court at their 927th meeting (25 May 2005).

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 The Committee has previously examined this case at its 894th, 895th, 896th, 897th, 899th, 900th, 902nd, 904th, 907th, 906th, 909th, 911th, 912th, 913th, 914th, 916th, 917th, 919th, 920th, 921st, 922nd, 924th and 925th meetings.
Note 3 This intervention was reproduced in full in the appendix to the notes issued for the 896th meeting.
Note 4 The full text of this intervention, as well as a draft interim resolution including all the amendments proposed by the Moldovan authorities, was reproduced in the records of the 924th meeting.
Note 5 This intervention was reproduced in full in the appendix to the notes issued for the 896th meeting.
Note 6 This intervention was reproduced in full in the records of the 899th meeting.
Note 7 This intervention was reproduced in full in the records of the 900th meeting. One delegation responded to these proposals, which were not subsequently raised again, at the 902nd meeting. The text of the latter intervention was reproduced in the records of the 902nd meeting.
Note 8 This intervention was reproduced in full in the records of the 907th meeting.

9 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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