SECOND SECTION

CASE OF VARDANEAN v. THE REPUBLIC OF MOLDOVA AND RUSSIA

( Application no. 22200/10 )

JUDGMENT

STRASBOURG

30 May 2017

FINAL

13/11/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Vardanean v. the Republic of Moldova and Russia ,

The European Court of Human Rights ( Second Section ), sitting as a Chamber composed of:

Işıl Karakaş, President, Julia Laffranque, Paul Lemmens, Valeriu Griţco, Ksenija Turković, Dmitry Dedov, Jon Fridrik Kjølbro, judges, and Stanley Naismith , Section Registrar ,

Having deliberated in private on 25 April 2017 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

2 . The applicants were represented by Mr A. Postica and Mr . P. Postica , acting on behalf of Promo-Lex, a non-governmental organisation based in Chi sina u. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol, and the Russian Government were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3 . The first applicant submitted, in particular, that he had been arrested and detained unlawfully. He further alleged that he had been convicted as a result of unfair criminal proceedings and that the lawyers representing him in the Court proceedings had not been able to gain access to him . Both applicant s also complained about the search of their home.

4 . On 13 June 2014 the above complaints were communicated to the respondent Government s and the remainder of the application was declared inadmissible , pursuant to Rule 54 § 3 of the Rules of Court .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicants, Mr Ernest Vardanean and Ms Irina Vardanean, are Moldovan nationals who were born in 1980 and live in Chisinau .

7 . The applicants are husband and wife and are journalists. At the time of the events they were living in the self-proclaimed “ Moldovan Republic of Transdniestria” (the “ MRT”) . The first applicant was employed by a Russian news agency and by a Moldovan newspaper.

8 . On 7 April 2010 the first applicant was arrested by agents of the secret service of the “MRT” on charges of treason and/or espionage undertaken for the Republic of Moldova. A search was carried out in the applicants ’ apartment and many of their belongings – such as pictures, computers and a bank card – were seized.

9 . On 16 December 2010, a tribunal from the “MRT” convicted the first applicant and sentenced him to fifteen years ’ imprisonment. Following international pressure , on 5 May 2011 the p resident of the “MRT” pardoned him. After that date, the applicant and his family moved to Chisinau.

10 . During his detention the first applicant met on several occasions with representatives of the “MRT” secret services , including the chief of the secret services , and was led to believe that his family might suffer if he refused to cooperate with the m . He was asked to record a video of himself admitting having worked for the Moldovan secret services. That video was aired on Transdniestrian television. On another occasion he was asked to write a letter to the foreign ambassadors to Moldova “ disclosing ” the fact that the Moldovan secret services were spying on the foreign embassies based in Chisinau. He subsequently was given to understand by representative s of the “MRT” secret services that the letter had served the purpose of creating tensions between Chisinau and western countries and that the whole matter , including his arrest, was being coordinated from Moscow.

11 . The second applicant could only visit the first applicant on a limited number of occasions during his detention and lawyers representing the first applicant in the proceedings before the Court were denied access to him on the grounds that they were not members of the “Transdniestrian Bar Association”.

12 . In the meantime, the Moldovan authorities made numerous attempts to secure the first applicant ’ s release. In particular, the problem of his detention in the “MRT” was raised by the Moldovan authorities with the European Union and the United States authorities in April 2010 in Brussels . The Moldovan delegation distributed a circular letter during the April 2010 session of the Parliamentary Assembly of the Council of Europe and raised the firs t applicant ’ s situation during meetings of the Committee of Ministers of the Council of Europe in January and February 2011. The first applicant ’ s situation was also raised by the Moldovan authorities in their discussions with the O SCE representatives in Chisinau , and a criminal investigation was initiated by the Moldovan Prosecutor ’ s Office in respect of the applicant ’ s detention in the “MRT” . However, the criminal investigation was later discontinued.

13 . The Moldovan Government also awarded financial assistance to the first applicant ’ s family during the period of the first applicant ’ s detention in the “MRT” and transferred to them ownership of a flat in Chisinau worth 53,000 euros (EUR) after the first applicant ’ s release from detention .

II. RELEVANT DOMESTIC LAW AND PRACTICE OF THE REPUBLIC OF MOLDOVA AND OTHER RELEVANT MATERIALS

14 . Reports by inter-governmental and non-governmental organisations, the relevant domestic law and practice of the Republic of Moldova , and other pertinent documents were summarised in Mozer v. the Republic of Moldova and Russia ([GC], no. 11138/10 , §§ 61-77, ECHR 2016 ).

THE LAW

15 . The first applicant submitted that he had been arrested and detained unlawfully, contrary to Article 5 § 1 of the Convention. He also contended that he had not had a fair hearing in the determination of the criminal charges against him , as required by Article 6 § 1 of the Convention , and that, contrary to Article 34 of the Convention, the “MRT” authorities had not allow ed him contact with the lawyers representing him before the Court. Both applicants complained that the search of their apartment in Tiraspol had been contrary to Article 8 of the Convention and that the restrictions on the second applicant ’ s visits to the first applicant breached the same Article.

I. GENERAL ADMISSIBILITY ISSUES

A. Jurisdiction

16 . The Court must first determine whether the applicant s fall within the jurisdiction of the respondent States for the purposes of the matters complained of, within the meaning of Article 1 of the Convention.

1. The parties ’ submissions

17 . The applicant s and the Moldovan Government submitted that both respondent Governments had jurisdiction.

18 . For their part, the Russian Government argued that the applicant did not come within their jurisdiction and that, consequently, the application should be declared inadmissible ratione personae and ratione loci in respect of the Russian Federation. As they did in Mozer (cited above, §§ 92-94), the Russian Government express the view that the approach to the issue of jurisdiction taken by the Court in Ilaşcu and Others (cited above ), Ivanţoc and Others v. Moldova and Russia ( no. 23687/05 , 15 November 2011), and Catan and Others (cited above) was wrong and at variance with public international law.

2. The Court ’ s assessment

19 . The Court observes that the general principles concerning the problem of jurisdiction under Article 1 of the Convention in respect of acts and facts occurring in the Transdniestrian region of Moldova were set out in Ilaşcu and Others (cited above, §§ 311-319), Catan and Others (cited above, §§ 103-107) and, more recently, in Mozer (cited above, §§ 97-98).

20 . In so far as the Republic of Moldova is concerned, the Court notes that in Ilaşcu, Catan and Mozer it found that although Moldova had no effective control over the Transdniestrian region, it followed from the fact that Moldova was the territorial State that persons within that territory fell within its jurisdiction. However, its obligation, under Article 1 of the Convention, to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention, was limited to that of taking the diplomatic, economic, judicial and other measures that were both in its power and in accordance with international law (see Ilaşcu and Others , cited above, § 333; Catan and Others , cited above, § 109; and Mozer , cited above § 100). Moldova ’ s obligations under Article 1 of the Convention were found to be positive obligations (see Ilaşcu and Others , cited above, §§ 322 and 330-331; Catan and Others , cited above, §§ 109-110; and Mozer , cited above, § 99).

21 . The Court sees no reason to distinguish the present case from the above-mentioned cases . Besides, it notes that the Moldovan Government do not object to applying a similar approach in the present case. Therefore, it finds that Moldova has jurisdiction for the purposes of Article 1 of the Convention, but that its responsibility for the acts complained of is to be assessed in the light of the above-mentioned positive obligations (see Ilaşcu and Others , cited above, § 335).

22 . In so far as the Russian Federation is concerned, the Court notes that in Ila ș cu and Others it has already found that the Russian Federation contributed both militarily and politically to the creation of a separatist regime in the region of Transdniestria in 1991-1992 ( Ila ș cu and Others , cited above, § 382) . The Court also found in subsequent cases concerning the Transdniestrian region that up until July 2010, the “MRT” was only able to continue to exist, and to resist Moldovan and international efforts to resolve the conflict and bring democracy and the rule of law to the region, because of Russian military, economic and political support (see Ivanţoc and Others , cited above, §§ 116-120; Catan and Others , cited above, §§ 121-122; and Mozer , cited above, §§ 108 and 110). The Court concluded in Mozer that the “MRT” ‘ s high level of dependency on Russian support provided a strong indication that the Russian Federation continued to exercise effective control and a decisive influence over the Transdniestrian authorities and that, therefore, the applicant fell within that State ’ s jurisdiction under Article 1 of the Convention ( see Mozer , cited above, §§ 110-111).

23 . The Court considers, given the absence of any new information to the contrary, that this conclusion continues to be valid for the period under consideration, namely until 5 May 2011 . The Court therefore sees no grounds on which to distinguish the present case from Ila șcu and Others , Ivanţoc and Others , Catan and Others , and Mozer (all cited above).

24 . It follows that the applicant s in the present case fall within the jurisdiction of the Russian Federation under Article 1 of the Convention. Consequently, the Court dismisses the Russian Government ’ s objections ratione personae and ratione loci .

25 . The Court will hereafter determine whether there has been any violation of the applicants ’ rights under the Convention such as to engage the responsibility of either respondent State ( see Mozer , cited above, § 112).

B. Exhaustion of domestic remedies

26 . The Moldovan Government submitted that the applicants had not exhausted the remedies available to them in Moldova. In particular, they noted that they had not relied on Law no. 1545 (1998) on compensation for damage caused by illegal acts undertaken by the criminal investigation bodies, the prosecution authorities or the courts, and had not appl ied for compensation from the Republic of Moldova for a breach of their rights. The Moldovan Government therefore argued that the parts of the applications concerning Moldova should be declared inadmissible for failure to exhaust domestic remedies in Moldova.

28 . The Russian Government submitted that the application should be rejected for failure to exhaust domestic remedies within the Russian Federation , namely to apply for redress to the Russian courts .

29 . The applicant s disagreed and argued that the Russian Government had not proved the existence of any effective remedy.

30 . The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires applicants firstly to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time – that is to say, that the remedy was accessible, capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, inter alia , Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 58, ECHR 2013 (extracts); Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others , §§ 69-77, 25 March 2014 ; and Gherghina v. Romania [GC] (dec.), no. 42219/07, §§ 83-89, 9 July 2015 ) .

II . ALLEGED VIOLATION OF ARTICLES 5 § 1 AND 6 § 1 OF THE CONVENTION

Article 5

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...”

Article 6

“ 1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Admissibility

33 . The Court notes that the se complaint s are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that they are not inadmissible on any other ground. The Court therefore declares them admissible.

B. Merits

35 . Under Article 6 of the Convention, the first applicant argued that the “MRT” court that had sentenced him could not be considered as an “independent tribunal established by law” in the sense of Article 6 § 1. He moreover complained that he did not have sufficient access to the file, and that a lawyer appointed by his family was denied the right to participate in the proceedings on the ground that he was not a citizen of the “MRT”.

36 . The respondent Governments did not make any submissions on the merits of these complaints.

37 . The Court reiterates that i t is well established in its case-law on Article 5 § 1 that any deprivation of liberty must not only be based on one of the exceptions listed in sub-paragraphs (a) to (f) but must also be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law; it also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see, for example, Del Río Prada v. Spain [GC], no. 42750/09 , § 125, ECHR 2013; and Mozer , cited above, § 134).

38 . The Court re i t er ates that in Mozer it held that the “judicial system” of the “ MRT ” was not a system reflecting a judicial tradition compatible with the Convention (see Mozer , cited above, §§ 148-49) . For this reason it held that the “MRT ” courts – and, by implication, any other “MRT ” authority – could not order the applicant ’ s “lawful ” arrest or detention within the meaning of Article 5 § 1 of the Convention (see Mozer , cited above, § 150 ) .

40 . The Court must next determine whether the Republic of Moldova fulfilled its positive obligation to take appropriate and sufficient measures to secure the applicant ’ s rights (see paragraph 2 0 above). In Mozer , the Court held that Moldova ’ s positive obligations related both to measures needed to re-establish its control over the Transdniestrian territory, as an expression of its jurisdiction, and to measures to ensure respect for individual applicants ’ rights (see Mozer , cited above, § 151) .

41 . As regards the first aspect of Moldova ’ s obligation s , to re-establish control over the Transdniestrian territory, the Court found in Mozer that Moldova had taken all measures in its power from the onset of the hostilities in 1991-1992 until July 2010 (see Mozer , cited above, § 152) . In the present case, the parties did not submit any argument which would indicate that the Moldovan Government had changed their position in respect of Transdniestria in the intervening years up to the period of the applicant ’ s release from detention in May 2011 . The Court therefore sees no reason to reach a different conclusion in the present case ( ibidem ).

43 . In the light of the foregoing, the Court concludes that the Republic of Moldova fulfilled its positive obligations in respect of the first applicant and finds that there has been no violation of Articles 5 § 1 and 6 § 1 of the Convention provisions by the Republic of Moldova.

44 . In so far as the responsibility of the Russian Federation is concerned, the Court notes that there is no evidence that persons acting on behalf of the Russian Federation directly participated in the measures taken against the first applicant.

45 . Nevertheless, the Court has established that Russia exercised effective control over the “MRT” during the period in question (see paragraph s 2 2-23 above). In the light of this conclusion, and in accordance with its case-law, it is not necessary to determine whether or not Russia exercises detailed control over the policies and actions of the subordinate local administration (see Mozer , cited above, § 157 ). By virtue of its continued military, economic and political support for the “MRT”, which could not otherwise survive, Russia ’ s responsibility under the Convention is engaged as regards the violation of the first applicant ’ s rights.

46 . In conclusion , and after having found that the first applicant ’ s rights guaranteed by Articles 5 § 1 and 6 § 1 ha ve been breached (see paragraph 39 above), the Court holds that there has been a violation of those provisions by the Russian Federation.

III . ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

48 . The applicants complained that the search of their apartment in Tiraspol constituted a breach of their right to respect for their home. They also complained about the restrictions imposed on the second applicant with respect to the possibility to visit the first applicant while he was in detention. The relevant parts of Article 8 read as follows:

Article 8

“1. Everyone has the right to respect for his ... family life, his home...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. Admissibility

49 . The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that they are not inadmissible on any other ground. The Court therefore declares them admissible.

B. Merits

50 . The applicants argued that the search of their apartment had been ordered and carried out by the authorities of the “MRT”, an unrecognised state. Such a search could not be considered “in accordance with the law”. They also argued that the first visit by the second applicant to the first applicant, while he was in detention, was authorised only after three weeks and after the latter had confessed, without any legal basis for delaying that visit.

51 . The Moldovan Government submitted that the interference with the applicants ’ rights had not been lawful because it had not been provided for by the domestic laws of the Republic of Moldova.

52 . The Russian Government did not submit any specific observations in this regard. Their position was that they did not have “jurisdiction” in the territory of the “MRT” and that they were therefore not in a position to make any observations on the merits of the case.

53 . It is undisputed that the search of the applicants ’ apartment constituted an interference with t he i r right to respect for home. The Court considers, moreover, that the temporary restriction of the second applicant ’ s visiting right constituted an interference with the applicants ’ right to respct for their family life. An interference will contravene Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 , and furthermore is “necessary in a democratic society” in order to achieve the aim or aims (see Labita v. Italy [GC], no. 26772/95, § 179, ECHR 2000 ‑ IV; and Idalov v. Russia [GC], no. 5826/03 , § 200, 22 May 2012) .

54 . In so far as the lawfulness of the first interference is concerned, no elements in the present case allow the Court to consider that there was a legal basis for searching the applicants ’ apartment . Given the circumstances, the Court concludes that the interference was not lawful under domestic law. Accordingly, there has been a violation of Article 8 of the Convention.

55 . Likewise, the Court considers that it has not b e en shown that the restriction of the scond applicant ’ s visiting right had a legal basis. Accordingly, there has been a violation of Article 8 in this respect too.

56 . F or the same reasons as those given in respect of the complaints under Articles 5 § 1 and 6 § 1 of the Convention (see paragraphs 4 1 - 4 2 above), the Court finds that there has been no violation of Article 8 of the Convention by the Republic of Moldova.

57 . For the same reasons as those given in the same context (see paragraph 45 ), the Court finds that there has been a double violation of Article 8 of the Convention by the Russian Federation.

IV. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

58 . The first applicant complained that his representative in the proceedings before the Court had not been allowed to visit him in prison or to participate in the criminal proceedings against him. He argued that that restriction had constituted an interference with the exercise of his right of individual petition under Article 34 of the Convention.

59 . The Court notes that the applicant ’ s representative on many occasions requested access to the applicant and to the court hearings without success. However, in his requests he expressed the intention to act as the first applicant ’ s lawyer in the criminal proceedings without indicating his status as his representative in the proceedings before the Court. Given the circumstances, there is no appearance of a failure by the respondent States to comply with their obligation under Article 34 of the Convention by hindering the applicant ’ s right of individual petition.

V . APPLICATION OF ARTICLE 41 OF THE CONVENTION

60 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

61 . The first applicant claimed 70,000 euros (EUR) in respect of non-pecuniary damage and the second applicant claimed EUR 10,000.

62 . The Governments contended that the claims were excessive and asked the Court to dismiss them.

63 . The Court notes that it has not found any violation of the Convention by the Republic of Moldova in the present case. Accordingly, no award of compensation is to be made with regard to th is respondent State.

64 . Having regard to the violations by the Russian Federation found above, the Court considers that an award in respect of non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards EUR 30 ,000 to the first applicant and EUR 7 , 000 to the second applicant , to be paid by the Russian Federation.

B . Costs and expenses

65 . The applicants also claimed EUR 7,440 for costs and expenses.

66 . The respondent Governments considered that the sums claimed were excessive.

67 . The Court notes that it has found that Moldova, having fulfilled its positive obligations, was not responsible for any violation of the Convention in the present case. Accordingly, no award of compensation for costs and expenses is to be made with regard to this respondent State.

68 . The Court reiterates that in order for costs and expenses to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Mozer , cited above, § 240 ). Having regard to all the relevant factors and to Rule 60 § 2 of the Rules of Court, the Court awards EUR 4,000 to the applicants for costs and expenses , to be paid by the Russian Federation .

C . Default interest

69 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1 . Declares , unanimously, the application admissible in respect of the Republic of Moldova;

2 . Declares , by a majority , the application admissible in respect of the Russian Federation;

3 . Holds , by six votes to one, that there has been no violation of Article 5 § 1 of the Convention by the Republic of Moldova;

4 . Holds , by six votes to one, that there has been a violation of Article 5 § 1 of the Convention by the Russian Federation;

5 . Holds , by six votes to one, that there has been no violation of Article 6 § 1 of the Convention by the Republic of Moldova;

6 . Holds , by six votes to one, that there has been a violation of Article 6 § 1 of the Convention by the Russian Federation;

7 . Holds , by six votes to one, that there has been no violation of Article 8 of the Convention by the Republic of Moldova;

8 . Holds , by six votes to one, that there has been a violation of Article 8 of the Convention by the Russian Federation , both with respect to the search of the applicants ’ apartment and the restriction of the second applicant ’ s right to visit the first applicant while in detention ;

9. Holds , unanimously, that the respondent States did not fail to comply with their obligation under Article 34 of the Convention;

10. Holds , by six votes to one,

(a) that the Russian Federation is to pay the applicant s , within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention , the following amounts:

(i) EUR 3 0,000 ( thirty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the first applicant ;

(ii) EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the second applicant;

( iii ) EUR 4,000 (four thousand euros), plus any tax that may be chargeable , to both applicant s , in respect of costs and expenses.

(b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

11. Dismisses , unanimously, the remainder of the applicants ’ claim s for just satisfaction.

Done in English, and notified in writing on 30 May 2017 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Stanley Naismith Işıl KarakaÅŸ Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Dedov is annexed to this judgment.

A.I.K. S.H.N.

DISSENTING OPINION OF JUDGE DEDOV

My vote in the present case was based on my previous dissenting opinion in the case of Mozer v. the Republic of Moldova and Russia ([GC], no. 11138/10, ECHR 2016 ) on the issue of the Russian Federation ’ s effective control over Transdniestria.