Information Note on the Court’s case-law 193

February 2016

Mozer v. the Republic of Moldova and Russia [GC] - 11138/10

Judgment 23.2.2016 [GC]

Article 5

Article 5-1

Lawful arrest or detention

Detention ordered by “courts” of separatist region of the Republic of Moldova: no violation, violation

Article 1

Jurisdiction of States

Jurisdiction of Moldovan and Russian Governments in relation to person detained within s eparatist region of the Republic of Moldova

Article 3

Degrading treatment

Inhuman treatment

Conditions of detention and lack of medical assistance in separatist region of the Republic of Moldova: no violation, violation

Article 8

Article 8-1

Respect for family life

Respect for private life

Restrictions on visits by family members and on right to converse in own language in prison in separatist region of the Republic of Moldova: no violation, violation

Article 9

Article 9-1

Freedom of religion

Refusal by prison authorities in separatist region of the Republic of Moldova to allow prisoner to see pastor: no violation, violation

Article 13

Effective remedy

Lack of effective domestic remedies to complain of breach of Convention rights for person det ained in separatist region of the Republic of Moldova: no violation, violation

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Application for compensation under Law no. 1545 (1998) in Moldova not effective remedy in respe ct of unlawful detention in separatist region: preliminary objection dismissed

Facts – In November 2008 the applicant, a Moldovan national belonging to the German ethnic minority, was arrested by the authorities of the self-proclaimed “Moldavian Republic o f Transdniestria” (the “MRT”), which has not been recognised by the international community, on suspicion of defrauding the company he worked for. He was held in custody until his trial before the “Tiraspol People’s Court”, which in July 2010 convicted him and sentenced him to seven years’ imprisonment, suspended for five years. It ordered his release subject to an undertaking not to leave the city. The applicant later left for treatment in Chișinău (Republic of Moldova) before travelling to Switzerland.

In his application to the European Court, the applicant, who suffered from bronchial asthma, respiratory deficiency and other conditions, complained that he had been deprived of medical assistance and held in inhuman conditions by the “MRT authorities” (Arti cle 3 of the Convention), that his arrest and detention were unlawful (Article 5 § 1), that his right to meet his parents and a pastor had been unduly restricted (Articles 8 and 9) and that he had no effective domestic remedy available (Article 13). He sub mitted that both Moldova and Russia were responsible for the alleged violations of his Convention rights.

In May 2014 a Chamber of the Court decided to relinquish jurisdiction in favour of the Grand Chamber.

Law

(a) Admissibility

Article 1

(i) Jurisdicti on of Moldova – There was no reason to distinguish the present case from previous cases (such as Ilaşcu and Others v. Moldova and Russia and Catan and Others v. Moldova and Russia ) concerning Moldovan jurisdiction in respect of events in the territory cont rolled by the “MRT”. Although Moldova had no effective control over the acts of the “MRT” in Transdniestria, the fact that the region was recognised under public international law as part of Moldova’s territory gave rise to an obligation, under Article 1 o f the Convention for Moldova to use all the legal and diplomatic means available to it to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention to those living there.

Conclusion : within the jurisdiction of Moldova (unanim ously).

(ii) Jurisdiction of Russia : In the absence of new information to show that the situation had changed during the relevant period (November 2008 to July 2010), the Court maintained its previous findings that the “MRT” was only able to continue to e xist, 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. The “MRT’s” high level of dependency on Russian support provi ded a strong indication that Russia continued to exercise effective control and a decisive influence over the “MRT” authorities.

Conclusion : within the jurisdiction of Russia (sixteen votes to one).

Article 35 § 1 ( exhaustion of domestic remedies in Moldova ) – The Court dismissed the Moldovan Government’s objection that, in order to exhaust Moldovan domestic remedies, the applicant should have applied for compensation under Law no. 1545 (1998). It noted that Law no. 1545 did not appear to apply to the unlawful actions of authorities created by the “MRT”, that no examples of an individual obtaining compensation from Moldova after the quashing of an “MRT court” conviction had been submitted, and that nothing in Law no. 1545 allowed the applicant to claim compensation for the delayed use or failure by the Moldovan authorities to make use of diplomatic or other means at the State level.

Conclusion : preliminary objection dismissed (unanimously).

(b) Merits

Article 5 § 1: T he Court reiterated that decisions taken by the courts, including the criminal courts, of unrecognised entities may be considered “lawful” for the purposes of the Convention provided they form part of a judicial system operating on a constitutional and leg al basis compatible with the Convention. It was in the first place for Russia, as the Contracting Party with effective control over the unrecognised entity, to show that the “MRT” courts satisfied that test. In Ilaşcu and Others the Court had found that th e test was not satisfied in view, in particular, of the patently arbitrary nature of the circumstances in which the applicants in that case were tried and convicted. In the absence of information from the Russian Government and in view of the scarcity of o fficial information concerning the legal and court system in the “MRT”, the Court was not in a position to verify whether the “MRT” courts and their practice now fulfilled the requirements. What was, however, clear was that the “MRT” legal system created i n 1990 had not undergone the thorough analysis to which Moldovan law was subjected before Moldova joined the Council of Europe in 1995. Accordingly, there was no basis for assuming that the “MRT” legal system reflected a judicial tradition considered compa tible with Convention principles. That conclusion was reinforced by, among other things, the circumstances of the applicant’s arrest and detention (especially the order for his detention for an undefined period and the examination of his appeal in his abse nce) and media reports which raised concerns about the independence and quality of the “MRT” courts. Neither the “MRT” courts nor any other “MRT” authority had thus been able to order the applicant’s “lawful arrest or detention” within the meaning of Artic le 5 § 1 (c) of the Convention.

(i) Responsibility of Moldova – The Court had held in Ilaşcu and Others that Moldova’s positive obligations to take appropriate and sufficient measures to secure the applicant’s rights under Article 5 § 1 related both to me asures 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.

As regards the obligation to re-establish control, there was nothing t o indicate that the Moldovan Government, which had taken all measures in its power to re-establish control over Transdniestrian territory, had changed their position during the period of the applicant’s detention. As to the obligation to ensure respect for the applicants’ rights, the Moldovan Government had made considerable efforts to support the applicant, in particular, through appeals to various intergovernmental organisations and foreign countries including Russia, a decision of the Moldovan Supreme Co urt of Justice quashing the applicant’s conviction and an investigation into the allegations of unlawful detention. Moldova had thus fulfilled its positive obligations.

Conclusion : no violation by Moldova (unanimously).

(ii) Responsibility of Russia – Whi le there was no evidence that persons acting on behalf of the Russian Federation had directly participated in the measures taken against the applicant, Russia’s responsibility under the Convention was nevertheless engaged by virtue of its continued militar y, economic and political support for the “MRT”, which could not otherwise survive.

Conclusion : violation by Russia (sixteen votes to one).

Article 3: The applicant complained of a lack of medical assistance and of the conditions of his detention.

It was i ndisputable that the applicant suffered greatly from his asthma attacks. Although the doctors considered the applicant’s condition to be deteriorating and the specialists and equipment required to treat him to be lacking, the “MRT” authorities had not only refused to transfer him to a civilian hospital for treatment but had also exposed him to further suffering and a more serious risk to his health by transferring him to an ordinary prison. In view of the lack of any explanation for the refusal to offer him appropriate treatment, the Court found that the medical assistance received by the applicant was not adequately secured.

The Court further found on the basis notably of reports of the European Committee for the Prevention of Torture ( CPT ) and the United Nations Special Rapporteur on torture that the conditions of the applicant’s detention amount ed to inhuman and degrading treatment, in particular on account of severe overcrowding, a lack of access to daylight and a lack of working ventilation which, coupled with cigarette smoke and dampness in the cell, had aggravated the applicant’s asthma attac ks.

For the reasons set out under Article 5 § 1, the Court found that responsibility for the violation lay solely with Russia.

Conclusions : no violation by Moldova (unanimously); violation by Russia (sixteen votes to one).

Article 8: The applicant complain ed that he had been unable to meet his parents for a considerable length of time and that during the meetings that had eventually been authorised they had not been allowed to speak their native German.

The Court noted that no reasons for refusing family me etings were apparent from the file and it was clear that the applicant had been unable to meet his parents for six months after his initial arrest. No explanation was given as to why it had been necessary to separate the applicant from his family for such a considerable length of time. Likewise, it was unacceptable in principle that a prison guard was present during family visits. It was clear that the guard was there specifically to monitor what the family discussed, given that they were at risk of having the meeting cancelled if they did not speak a language he understood. No explanation was given as to why the meetings had to be monitored so closely. Thus, regardless of whether there had been a legal basis for the interference with the applicant’s rights, the restriction of prison visits from his parents did not comply with the other conditions set out in Article 8 § 2 of the Convention.

For the reasons set out under Article 5 § 1 (see above), the Court found that responsibility for the violation lay solel y with Russia.

Conclusions : no violation by Moldova (unanimously); violation by Russia (sixteen votes to one).

Article 9: The applicant complained that he had also been prevented from seeing his pastor. The Court reiterated that a refusal to allow a prison er to meet a priest constitutes interference with the rights guaranteed under Article 9. It was not clear whether there was a legal basis for the refusal and no reasons had been advanced to justify it. The Court considered that it had not been shown that t he interference with the applicant’s right pursued a legitimate aim or was proportionate to that aim.

For the reasons set out under Article 5 § 1 (see above), the Court found that responsibility for the violation lay solely with Russia.

Conclusions : no vio lation by Moldova (unanimously); violation by Russia (sixteen votes to one).

Article 13: The applicant had been entitled to an effective domestic remedy within the meaning of Article 13 in respect of his complaints under Articles 3, 8 and 9 of the Conventi on. The Court had already found when considering the Moldovan Government’s preliminary objection that a claim for compensation before the Moldovan courts under Law no. 1545 (1998) could not be considered an effective remedy. The Russian Government had not claimed that any effective remedies were available to the applicant in the “MRT”. The applicant thus did not have an effective remedy in respect of his complaints under Articles 3, 8 and 9 of the Convention.

(i) Responsibility of Moldova – The nature of t he positive obligations to be fulfilled by Moldova did not require the payment of compensation for breaches by the “MRT”. Accordingly, the rejection of the preliminary objection concerning the non-exhaustion of domestic remedies did not affect the Court’s analysis concerning the fulfilment of Moldova’s positive obligations.

The positive obligation incumbent on Moldova was to use all the legal and diplomatic means available to continue to guarantee to those living in the Transdniestrian region the enjoyment of the rights and freedoms defined in the Convention. Accordingly, the “remedies” which Moldova was required to offer the applicant consisted in enabling him to inform the Moldovan authorities of the details of his situation and to be kept informed of the various legal and diplomatic actions taken. Moldova had created a set of judicial, investigative and civil service authorities which worked in parallel with those created by the “MRT”. While the effects of any decisions taken by these authorities could onl y be felt outside the Transdniestrian region, they had the function of enabling cases to be brought in the proper manner before the Moldovan authorities, which could then initiate diplomatic and legal steps to attempt to intervene in specific cases, in par ticular by urging Russia to fulfil its obligations under the Convention in its treatment of the “MRT” and the decisions taken there.

Moldova had made procedures available to the applicant commensurate with its limited ability to protect the applicant’s rig hts. It had thus fulfilled its positive obligations.

(ii) Responsibility of Russia – For the reasons set out under Article 5 § 1 (see above), Russia’s responsibility was engaged.

Conclusions : no violation by Moldova (unanimously); violation by Russia (six teen votes to one).

Article 17: The applicant complained of a breach of Article 17 of the Convention by both respondent States on account of their tolerance of the unlawful regime installed in the “MRT”.

The Court considered that the complaint as formulat ed by the applicant fell outside the scope of Article 17. In any case, there was no evidence to suggest that either of the respondent States had set out to deliberately destroy any of the rights relied on by the applicant, or to limit any of those rights t o a greater extent than was provided for in the Convention.

Conclusion : inadmissible (manifestly ill-founded).

Article 41: EUR 20,000 in respect of non-pecuniary damage; EUR 5,000 in respect of pecuniary damage.

(See Ilaşcu and Others v. Moldova and Russia [GC], 48787/99, 8 July 2004, Information Note 66 ; Ivanţoc and Others v. Moldova and Russia , 23687/05, 15 November 2011, Information Note 146 ; Catan and Others v. Moldova and Russia [GC], 43370/04, 8252/05 and 18454/06, 19 October 2012, Information Note 156 ; see also, Cyprus v. Turkey [GC], 25781/94 , 10 May 2001)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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