Lexploria

Information Note on the Court’s case-law 146

November 2011

Ivanţoc and Others v. Moldova and Russia - 23687/05

Judgment 15.11.2011 [Section IV]

Article 1

Jurisdiction of states

Responsibility of states

Positive obligations of Moldova with regard to parts of its territory over which it has no control

Jurisdiction of states

Continuing responsibility of Russia in respect of acts of the “Moldavian Republic of T ransdniestria”

Article 3

Degrading treatment

Inhuman treatment

Inadequate conditions of detention aggravated by failure to comply with earlier ruling of European Court: violation by Russia

Facts – This was a follow-up case to the Court’s judgment in Ilaşcu and Others v. Moldova and Russia *in 2004 in which the Grand Chamber held, inter alia , that the first and second applicants’ continued detention in the separatist “Moldavian Republic of Transdniestria” (the “MRT”) since December 1993 violated Article s 3 and 5 § 1 (a) of the Convention and engaged the responsibility of both Moldova and the Russian Federation. Despite a requirement in that judgment for both States to take every measure to secure the men’s immediate release, the conditions in which the t wo men were detained had remained unchanged and it was not until almost three years later, in June 2007, that they were released.

Law – (a) Admissibility

(i) Competence ratione materiae – In response to the respondent Governments’ contention that it was the Committee of Ministers, not the Court, which was competent to monitor the execution of the Court’s judgments, the Court reiterated that the Committee of Ministers’ su pervisory powers under Article 46 were not encroached on where the Court had to deal with relevant new information in the context of a fresh application. Nor was it unusual for the Court to examine a second application concerning a continuing violation of a Convention right that had been found to have been violated during an earlier period.

While acknowledging that, in principle, it had no jurisdiction to review the general and/or individual measures, if any, adopted by the respondent States to secure the a pplicants’ rights which had been found to have been violated in Ilaşcu , the Court could nevertheless take account of subsequent factual developments communicated by the parties which were likely to have a bearing on the potential responsibility of the resp ondent Governments in respect of alleged Convention violations after 8 July 2004. It was immaterial here that the first and second applicants’ detention beyond that date was not new detention but a continuation of the detention the Court had found to be co ntrary to Article 5 in Ilaşcu , since the Court had itself suggested in Ilaşcu that a further assessment of compliance with Article 5 could be made if the detention continued. For its part, the Committee of Ministers had decided to suspend the examination o f the Ilaşcu case pending final determination of the present application by the Court. The question of the prolongation of the applicants’ detention beyond 8 July 2004 thus fell within the Court’s jurisdiction. Were that not the case, not only would this m atter escape all scrutiny under the Convention, but the applicants would be deprived of any just satisfaction that might be awarded to them in respect of that period.

Conclusion : preliminary objection dismissed (six votes to one).

(ii) Competence ratione personae – The respondent Governments’ objection that the applicants did not come within their jurisdiction was joined to the merits.

(b) Merits

(i) Complaints against Moldova – Articles 3, 5, 8 and 13: The Court had held in Ilaşcu that Moldova did not e xercise authority over that part of its territory under the effective control of the “MRT” so that its responsibility could not be engaged under Article 1 of the Convention on account of a wrongful act within the meaning of international law. However, Mold ova still had a positive obligation under Article 1 to take diplomatic, economic, judicial or other measures in its power and in accordance with international law to secure the applicants’ Convention rights. The Court therefore had to ascertain whether Mol dova had discharged its positive obligations for the period beginning on 8 July 2004, bearing in mind there was little Moldova could do to re-establish its authority over Transdniestrian territory when confronted with a regime sustained militarily, politic ally and economically by the Russian Federation. The Court notes that even after 8 July 2004, Moldova never ceased to protest about the Russian Federation’s active support for the “MRT” separatist regime, and had continued to deploy its efforts to recover control over the Transdniestrian territory. As regards the applicants’ situation, following the Ilaşcu judgment the Moldovan authorities had systematically raised, with both the Transdniestrian leaders and the Russian Federation, the questions of the appli cants’ release and of respect for their Convention rights. They had also continually sought the assistance of other States and international organisations. As to other possible measures, no new fact or argument had been put forward to alter the Court’s con clusion in Ilaşcu that any judicial investigation in respect of persons living in Transdniestria would be ineffectual. In the light of these considerations, Moldova had discharged its positive obligations to secure the applicants’ Convention rights and its objection regarding its lack of effective control in Transdniestria and consequent limited responsibility under the Convention was therefore upheld.

Conclusion : no violation (six votes to one).

(ii) Complaints against Russia

Article 1: Even after the Cou rt’s judgment in Ilaşcu , and at least until the applicants’ release in June 2007, Russia had continued to enjoy a close relationship with the “MRT”, providing political, financial and economic support to the separatist regime. The Russian army was also, at the date of the applicants’ release, still stationed on Moldovan territory, in breach of Russia’s undertakings to withdraw completely and of Moldovan legislation. The Russian Federation had continued to do nothing to prevent the alleged Convention violati ons committed after 8 July 2004 or to put an end to the situation brought about by its agents. The applicants had, therefore, continued to be within the “jurisdiction” of Russia until their release.

Conclusion : preliminary objection dismissed (six votes to one).

Article 3: The conditions of detention had not changed after the Ilaşcu judgment. The two men had been held in solitary confinement amounting to almost complete social isolation and were allowed only a one-hour walk a day. They lacked natural light in their cells, appropriate and regular medical treatment, and a suitable diet. They had no contact with their lawyers, limited contact with their closest relatives and their correspondence was censored. Such treatment must have caused them pain and suffer ing, both physical and mental. The Committee for the Prevention of Torture (CPT) of the Council of Europe had found that their prolonged solitary confinement was indefensible. Taken as a whole, the conditions in which the two men were detained between 8 Ju ly 2004 and their release in June 2007 amounted to inhuman and degrading treatment. That violation was aggravated by the fact that the detention in question had occurred after the Court’s judgment of 8 July 2004 requiring their immediate release.

Conclusio n : violation by Russia (six votes to one).

In respect of the first and second applicants, the Court also found a continuing violation of Article 5 aggravated by the failure to comply with the judgment in IlaÅŸcu requiring their immediate release, and a viol ation of Article 13, owing to the absence of an effective remedy in respect of their unlawful detention. Lastly, it found a violation of Article 8 owing to the lack of any legal basis or justification for restrictions that had been imposed on the rights of the third and fourth applicants, who were close relatives of the two imprisoned men, to correspond with and visit them.

Article 41: EUR 60,000 each to the first and second applicants in respect of pecuniary and non-pecuniary damage in view of the extreme seriousness of the violations; EUR 20,000 each to the third and fourth applicants in respect of pecuniary and non-pecuniary damage.

* IlaÅŸcu and Others v. Moldova and Russia [GC], 48787/99, 8 July 2004, Information Note 66 .

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