SECOND SECTION

CASE OF COLIBAN v. THE REPUBLIC OF MOLDOVA AND RUSSIA

(Application no. 5216/13)

JUDGMENT

STRASBOURG

30 November 2021

This judgment is final but it may be subject to editorial revision.

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

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

Carlo Ranzoni, President, Egidijus Kūris, Pauliine Koskelo, judges, and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 5216/13) against the Republic of Moldova and Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Alexandru Coliban (“the applicant”), on 18 January 2013;

the decision to give notice of the application to the Moldovan and Russian Governments (“the Governments”);

the parties’ observations;

the decision to reject the Russian Government’s objection to examination of the application by a Committee;

Having deliberated in private on 9 November 2021,

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

INTRODUCTION

1. The case concerns the applicant’s detention and conviction for distributing electoral leaflets in the self-proclaimed “Moldovan Republic of Transdniestria” (the “MRT” – see for more details Ilașcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 28-185, ECHR 2004-II)). He complains about the conditions of his detention, unlawful detention, the interference with his freedom of expression and the lack of effective remedies in respect of his other complaints.

THE FACTS

2. The applicant was born in 1990 and lives in Căinari. The applicant was represented by Mr A. Postică, lawyer practising in Chișinău.

3. The Governments were represented by their Agents.

4. The facts of the case, as submitted by the parties, may be summarised as follows.

5. The applicant was an advertising agent. In the 2011 elections campaign of the “MRT” president, he was employed to organise the distribution of leaflets criticising one of the candidates, who was eventually elected. The leaflets were as follows: “I have a Land Cruiser 200, and you?”, “Bye-bye, losers” and “This is lucky John. He studied in England, has a bank account in Switzerland, and wants to be the President of Transdniestria”.

6. On 23 October 2011 the applicant was arrested and charged with slander and with interfering with the right of others to freely exercise their right to vote. He was released three days later and detained again on 9 June 2012.

7. In the course of proceedings, the elected “MRT” president, E. Șevciuc, had the procedural standing of the victim. He asked for the examination of the applicant’s case in a special procedure without trial and asked for a sentence of three years and six months’ imprisonment.

8. On 9 October 2012, without trial, the applicant was finally convicted by the “MRT Supreme Court” of interfering with the right of others to freely exercise their right to vote and was sentenced to two years and six months’ imprisonment.

9. On 27 June 2013 the applicant was released from detention after being pardoned by the president of the “MRT”.

10 . The applicant was detained in several facilities: from 9 to 17 June 2012 in the Tiraspol police station, from 17 June to 9 September 2012 in the Remand centre in Hlinaia, and from 9 September 2012 to 27 June 2013 in prison no. 1 in Hlinaia. He described the conditions of detention in all facilities as follows: infested with parasites, poor sanitary conditions, no working ventilation, overcrowding, no access to daylight, insufficient food and drinking water.

11 . The applicant suffered from neurasthenia and vertebrobasilar insufficiency. He submitted that neither of the detention facilities had adequate medical staff and that for his health condition he needed to rely on medication brought by his relatives.

12. In December 2012 the applicant’s mother complained to the administration of prison no. 1 about the applicant’s deteriorating health and the absence of medical assistance in prison. She requested a medical commission to examine her son but to no avail.

13. The applicant’s mother complained to Moldovan and Russian authorities about the applicant’s unlawful detention in the “MRT”.

14. On 5 December 2012 and on 25 February 2013 the Moldovan Reintegration Bureau informed the applicant’s mother about the undertaken efforts, including diplomatic outreach to the “MRT” political representative in the Transdniestrian settlement process, to the EU Delegation in Moldova, to the OSCE Mission in Moldova and to the UN Senior expert Mr Thomas Hammarberg, as well as the resulting visit paid by the OSCE representatives to the applicant in prison. The Moldovan authorities repeatedly enquired the “MRT” Prison administration about the applicant’s whereabouts and reasons for his detention.

15 . Following an extraordinary appeal by the applicant’s lawyer, on 26 November 2013 the Supreme Court of Justice of the Republic of Moldova quashed the judgments of the “MRT” courts in respect of the applicant. The Court found that the “MRT” courts were unconstitutional and could not therefore lawfully convict the applicant. It ordered all materials to be forwarded to the Moldovan General Prosecutor’s Office for further action.

16. On 8 August 2012 the Moldovan authorities initiated a criminal investigation into the applicant’s kidnapping. On 24 July 2014 another criminal investigation was initiated into the usurpation of official powers by the “MRT” officials who convicted and detained the applicant. The Moldovan Government submitted that these proceedings were joined subsequently and on 4 August 2015 were suspended until the identification of perpetrators.

17. On 12 March 2013 the Consular section of the Embassy of the Russian Federation in the Republic of Moldova informed the applicant’s mother that they had competence to intervene in the protection of Russian nationals only. By a letter from 25 April 2013 the Embassy informed the applicant’s mother that her requests had been forwarded to the “MRT” Ministry of Foreign Affairs for consideration.

RELEVANT MATERIALS

18. The relevant materials have been summarised in Mozer v. the Republic of Moldova and Russia [GC] (no. 11138/10, §§ 61-77, 23 February 2016).

THE LAW

19. The Court must determine whether the applicant falls within the jurisdiction of the respondent States for the purposes of the matters complained of, within the meaning of Article 1 of the Convention.

20. The applicant submitted that in light of the Court’s constant case-law both respondent Governments had jurisdiction.

21. The Moldovan Government submitted that they had positive obligations to secure the applicant’s rights and the Russian Federation had jurisdiction due to their continuous military presence in the region.

22. For their part, the Russian Government argued that the applicant did not fall within their jurisdiction.

23. The Court notes that the parties in the present case maintain views on the issue of jurisdiction which are similar to those expressed by the parties in Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04 and 2 others, §§ 83-101, ECHR 2012 (extracts)) and in Mozer (cited above, §§ 81-95). In particular, the applicant and the Moldovan Government submitted that both respondent Governments had jurisdiction, while the Russian Government submitted that they had no jurisdiction.

24. The Court recalls that the general principles concerning the issue of jurisdiction under Article 1 of the Convention in respect of actions and facts pertaining to the Transdniestrian region of Moldova were set out in Ilaşcu and Others (cited above, §§ 311-319), Catan and Others (cited above, §§ 103-107) and Mozer (cited above, §§ 97-98).

25 . 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).

26 . 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).

27 . The Court notes that in IlaÈ™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 (see IlaÅŸcu and Others , cited above, § 382). The Court also found in subsequent cases concerning the Transdniestrian region that up until at least September 2016 ( Eriomenco v. the Republic of Moldova and Russia , no. 42224/11, § 72, 9 May 2017), 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 IvanÅ£oc and Others v. Moldova and Russia , no. 23687/05, §§ 116 ‑ 120, 15 November 2011; 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 ( Mozer , cited above, §§ 110-111).

28. The Court sees no grounds on which to distinguish the present case from Ilașcu and Others , Ivanţoc and Others , Catan and Others , Mozer and Eriomenco (all cited above).

29 . It follows that the applicant in the present case fell within the jurisdiction of the Russian Federation under Article 1 of the Convention.

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

31. The applicant complained that that he had been held in inhuman conditions of detention, without the necessary medical assistance, contrary to the requirements of Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

32. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

33. The applicant complained about the inhuman conditions in which he had been held in the “MRT” detention facilities and provided a detailed description thereof (see paragraphs 10-11).

34. The Moldovan Government did not dispute or support the applicant’s description of conditions of detention but argued that they lacked effective control over the “MRT”. Even so, they argued that they had fulfilled their positive obligations and that there had been no violation of Article 3 of the Convention in their respect.

35. The Russian Government argued that they had no jurisdiction in respect of the “MRT”, no access to criminal files in the “MRT” nor any information concerning conditions of detention.

36. The Court has already had the occasion to examine the conditions of detention in the “MRT” (see among others, Mozer , cited above, §§ 180-182; Eriomenco , cited above, §§ 55-56; Apcov v. the Republic of Moldova and Russia , no. 13463/07, § 42, 30 May 2017) and concluded that there had been a violation of Article 3 of the Convention.

37. After having examined the facts of this case and in the absence of information contradicting the applicant’s submissions (see paragraph 10), the Court concludes that the applicant’s conditions of detention amount to inhuman and degrading treatment contrary to Article 3 of the Convention. In view of this finding, the Court considers that it is unnecessary to examine separately the complaint concerning the medical assistance in detention.

38 . There has accordingly been a violation of Article 3 of the Convention.

39 . The Court must next determine whether the Republic of Moldova fulfilled its positive obligations to take appropriate and sufficient measures to secure the applicant’s rights under Article 3 of the Convention (see paragraphs 25-26 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 applicant’s rights (see Mozer , cited above, § 151).

40. As regards the first aspect of Moldova’s obligation, to re-establish control, the Court found in Mozer that, from the onset of the hostilities in 1991 and 1992 until July 2010, Moldova had taken all the measures in its power ( Mozer , cited above, § 152). The events concerned in this application took place in 2011-2013. The Court notes that none of the parties submitted any evidence that the Republic of Moldova had changed its position towards the Transdniestrian issue during this period of time and it therefore sees no reason to reach a different conclusion from that reached in Mozer (cited above, § 152).

41. Turning to the second aspect of the positive obligations, namely to ensure respect for the applicant’s individual rights, the Court found in Ilaşcu and Others (cited above, §§ 348-352) that the Republic of Moldova had failed to fully comply with its positive obligations, to the extent that from May 2001 it had failed to take all the measures available to it in the course of negotiations with the “MRT” and Russian authorities to bring an end to the violation of the applicants’ rights. In the present case, the applicant submitted that the Republic of Moldova had not discharged its positive obligations because the initiated criminal investigation had not been efficient to protect the applicant’s rights and because after March 2017 the position of the Moldovan president had been ambiguous in respect of the “MRT” authorities.

42 . The Court considers that Moldovan authorities did not have any real means of improving the conditions of detention in the “MRT” prisons, nor could they move the applicant to other prisons or release him from the “MRT” prisons (see, a contrario , Pocasovschi and Mihaila v. the Republic of Moldova and Russia , no. 1089/09, § 46, 29 May 2018). Moreover, they could not properly investigate the allegations of unlawful detention.

43. An investigation into the unlawful acts of the “MRT” authorities had been initiated but had to be suspended due to the absence of cooperation by that region, making it impossible to carry out any meaningful prosecution. In addition, the applicant managed to have his conviction by the “MRT” courts quashed by the Moldovan Supreme Court of Justice (see paragraph 15 above).

44 . The Court notes that the facts of the case go up to 2013 and, therefore, it was not necessary to consider the applicant’s arguments concerning the conduct of the Moldovan authorities beyond that date.

45 . In the light of the foregoing, the Court concludes that the Republic of Moldova had fulfilled its positive obligations and that there has been no violation of Article 3 of the Convention by the Republic of Moldova.

46 . The Court has established that Russia exercised effective control over the “MRT” during the period of the applicant’s detention (see paragraphs 27 ‑ 29 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 applicant’s rights (ibid.).

47 . In conclusion, and having found that the applicant had been held in inhuman and degrading conditions in breach of Article 3 of the Convention (see paragraph 38 above), the Court holds that there has been a violation of that provision by the Russian Federation.

48. The applicant complained of a violation of Article 5 § 1 of the Convention, owing to his detention on the basis of unlawful decisions by the “MRT” authorities. The relevant parts of Article 5 § 1 read:

“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;

...”

49. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

50. The applicant submitted that his deprivation of liberty was ordered by unlawful authorities and lacked legal basis. He also outlined the breach of procedural safeguards in the trial against him. He argued that both respondent Governments were responsible for the breach of his rights.

51. The Moldovan Government submitted that they had had difficulties in assessing the situation, in the absence of any effective control over the territory controlled by the “MRT”.

52 . The Russian Government made no specific submissions other than a summary of various legal provisions and agreements in force on the territory of the “MRT”, including information about the judicial organisation and guarantees of independence of the judges and examples of successful protection of human rights in the region. They did not submit any copies of the relevant documents.

53. The Court reiterates that it 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).

54. It is noted that the Russian Federation submitted a summary of documents concerning the judicial system in the “MRT”, without submitting copies of the documents themselves (see paragraph 52 above). However, they failed to explain whether the judicial system or legislation which they have described in the “MRT” was in force during the relevant events (2011-2013).

55. The Court recalls that for the period between 2011-2013 relevant to the application, it has already established that the judicial system of the “MRT” was not a system reflecting a judicial tradition compatible with the Convention (see Mozer , cited above, §§ 148-149 in respect of the facts going up to June 2010 and Eriomenco , cited above, § 72, up to September 2016). For that reason it held that the “MRT” courts and, by implication, any other “MRT” authority, could not order the applicants’ “lawful” arrest or detention, within the meaning of Article 5 § 1 of the Convention (see Mozer , cited above, § 150).

56. In the light of the above, the Court considers that the conclusion reached in Mozer and Eriomenco is valid in the present case too. There has accordingly been a violation of Article 5 § 1 of the Convention.

57. 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. For the same reasons as those mentioned above (see paragraphs 39 ‑ 45), the Court finds that there has been no violation of Article 5 of the Convention by the Republic Moldova.

58. As concerns the Russian Federation, for the same reasons as those mentioned above (see paragraphs 46 ‑ 47), the Court finds that Russia is responsible for the breach of Article 5 of the Convention.

59. The applicant complained of a violation of Article 10 of the Convention, which reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

60. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

61. The applicant submitted that he had been detained for having contributed to the promotion of electoral materials against one of the candidates to the “MRT” presidency. He argued that he had not breached any Moldovan law, while the “laws” adopted by the “MRT” authorities were not valid in the Republic of Moldova.

62. The Moldovan Government submitted that the interference with the applicant’s freedom of expression was not provided by Moldovan law. The Russian Government made no specific submissions.

63. The Court considers that in promoting electoral material in public places the applicant undoubtedly exercised his right to freedom of expression as protected by Article 10 of the Convention. It also finds that the detention and conviction of the applicant, because of expressing his political views, clearly interfered with the exercise of his freedom of expression. Such an interference will be in breach of Article 10 unless it is in accordance with the requirements of the second paragraph of that provision.

64. The relevant case-law of the Court was cited in Beșleagă v. the Republic of Moldova and Russia (no. 48108/07, § 57, 2 July 2019).

65. In the present case, the Court notes that the applicant’s conviction based on the “MRT” laws lacks any basis in Moldovan law. The Court thus concludes that the interference with the applicant’s freedom of expression was not “prescribed by law” within the meaning of Article 10 of the Convention.

66. There has, accordingly, been a violation of that provision in the present case.

67. 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. For the same reasons as those mentioned above (see paragraphs 39 ‑ 45), the Court finds that there has been no violation of Article 10 of the Convention by the Republic Moldova.

68. As concerns the Russian Federation, for the same reasons as those mentioned above (see paragraphs 46 ‑ 47), the Court finds that Russia is responsible for the breach of Article 10 of the Convention.

69. Lastly, the applicant complained that he had had no effective remedies in respect of his complaints under Articles 3, 5 and 10 of the Convention. He relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

70. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

71. The applicant submitted that he had had no means of asserting his rights in the face of the actions of the “MRT” authorities.

72. The Moldovan Government submitted that there had been no violation of Article 13 in the present case in respect of Moldova. The Russian Government made no specific comment.

73. The Court observes that it found that the applicant’s complaints under Articles 3, 5 and 10 of the Convention were arguable. He was therefore entitled to an effective domestic remedy within the meaning of Article 13 in respect of these complaints.

74. The Court already found the absence of an effective remedy in respect of violations committed by the “MRT” authorities (see for example, Mozer , cited above, §§ 210-212, and Eriomenco , cited above, § 96; Beșleagă , cited above, § 77). In view of the similarity of the complaints made and of the coincidence of the time-frame of the events in the present case with those in Eriomenco (cited above), the Court sees no reasons to depart from that conclusion in the present case.

75. The Court therefore concludes that the applicant did not have an effective remedy in respect of his complaints under Articles 3, 5 and 10 of the Convention. Consequently, the Court must decide whether the violation of Article 13 can be attributed to any of the respondent States.

76. The Court notes that in Mozer (cited above, §§ 213-216) it found that Moldova had made procedures available to applicants commensurate with its limited ability to protect their rights. It had thus fulfilled its positive obligations and the Court found that there had been no violation of Article 13 of the Convention by that State. The Court sees no reasons to depart from that conclusion in the present case ( Mangîr and Others v. the Republic of Moldova and Russia , no. 50157/06, § 71, 17 July 2018). Accordingly, the Court finds that there has been no violation of Article 13 of the Convention by the Republic of Moldova.

77. As in Mozer (cited above, §§ 217-218), in the absence of any submission by the Russian Government as to any remedies available to the applicant, the Court concludes that there has been a violation by the Russian Federation of Article 13, taken in conjunction with Articles 3, 5 and 10 of the Convention.

78. 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.”

79. The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage and EUR 4,320 in respect of costs and expenses. The applicant submitted a copy of the contract with his representative and an itemized timesheet of his work. The applicant requested that the amount of the costs and expenses be paid directly to his representative’s bank account.

80. The Moldovan Government contended that the claims for costs and expenses were excessive. Both respondent Governments invited the Court to make an award on equitable basis.

81. Having regard to the violations by the Russian Federation found above, the Court awards the applicant EUR 15,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable on the applicant and EUR 3,500 in respect of costs and expenses, plus any tax that may be chargeable, to be paid directly to the applicant’s representative’s bank account.

82. 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, UNANIMOUSLY,

(a) that the Russian Federation is to pay the applicant, within three months, the following amounts:

(i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly to the applicant’s representative’s bank account;

(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;

Done in English, and notified in writing on 30 November 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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Hasan Bakırcı Carlo Ranzoni Deputy Registrar President