CONCURRING OPINION OF JUDGE LÓPEZ GUERRA

I agree with the Grand Chamber ’ s judgment. However, with respect to its finding of a violation of Article 5 § 1 of the Convention concerning the way in which the applicant ’ s arrest and detention occurred, I must express my disagreement with the reasoning contained in paragraphs 145 to 148 of the present judgment. In my opinion there were sufficient grounds for finding a Convention violation without the need to formulate in those paragraphs what amounts to a wholesale invalidation of the entire judicial system of the Transdniestrian region.

As I see it, and this is actually underscored as a supporting argument in paragraph 149, the circumstances in which the applicant was arrested and his detention ordered and extended lead to the conclusion that his Article 5 § 1 rights were indeed violated. As shown in the findings of fact, the applicant was remanded in custody initially for an undetermined period, and on two occasions neither the applicant nor his lawyer was present at the hearings on appeal before the “MRT Supreme Court” in the proceedings to contest the detention orders.

Given these circumstances, which were clearly contrary to the Convention guarantees on detention, there was no need to justify the Court ’ s finding of a violation by categorically stating that neither the “MRT courts” nor any other “MRT” authority could lawfully order the applicant ’ s arrest or detention (see paragraph 150). This general conclusion is not only unsupported by the available information, but may also lead to unacceptable consequences.

The wholesale invalidation of the “MRT” judicial system appears to be the result of negative reasoning: it is the scarcity of official sources of information that prompts the Grand Chamber to consider that it “is not in a position to verify” (paragraph 147) whether the “MRT” courts fulfill the independence requirements derived from the Convention. Continuing this negative reasoning, the Grand Chamber concludes that “there is no basis for assuming that there is a system reflecting a judicial tradition compatible with the Convention in the region”, while also admitting the lack of an in ‑ depth analysis of the “MRT” legal system.

I find it extremely difficult to evaluate with any certainty whether a whole judicial system is in breach of the Convention on the basis of such scant evidence. But in this case, this type of evaluation poses an additional problem: if taken to its logical consequences, the Court ’ s finding implies that any arrest or detention order issued in respect of any person, for any reason, by the “MRT” authorities (even in cases of serious crimes or endangerment to society, persons or property) should be considered contrary to the Convention, in view of the Grand Chamber ’ s assessment of a general lack of judicial independence. The reasoning resulting in this extreme conclusion (one which is unavoidable according to the terms of the judgment) is unsupported by the evidence and unnecessary for the final finding of a violation of the applicant ’ s Article 5 § 1 rights, and should therefore have been excluded from the text of the Grand Chamber judgment.

DISSENTING OPINION OF JUDGE DEDOV

1. I can accept that the actions of the MRT authorities in respect of the applicant did not meet Convention standards and I agree with the analysis of the Court. However, I regret that I cannot agree with the Court ’ s conclusion as regards the jurisdiction of the Russian Federation over Transdniestrian territory and the sole responsibility of the Russian Federation for the violations committed by the Transdniestrian authorities.

The effective control approach

2. Following the general principles established in Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04 and 2 others, ECHR 2012), the Court noted that there is no evidence of any direct participation by Russian agents in the measures taken against the applicant (see paragraph 101 of the present judgment). Nevertheless, the Court established that Russia exercises effective control over the MRT by virtue of its continued military, economic and political support for that entity, which could not otherwise survive. This led the Court to the conclusion that Russia ’ s responsibility under the Convention is engaged for violations committed on Transdniestrian territory.

3. Given that support does not in itself lead to effective control, and following Judge Kovler ’ s dissenting opinion in Catan and Others , cited above, I am not certain that this position of the Court is well founded. The fact is that the Russian Federation did not initiate the independence of the MRT. Russia provided the MRT with the military support to ensure peace and security in the border region because of the Transdniestrian military conflict, without any view to taking effective control over the MRT.

4. There is no evidence of any direct participation by Russian agents in the measures taken against the applicant. Nor is there any evidence of Russian involvement in or approval for the MRT ’ s policy regarding the medical treatment of detainees or the conditions of detention in general. Nevertheless, the Court has followed the position previously adopted in other Transdniestrian cases, where it established that Russia exercises effective control over the MRT by virtue of its continued military, economic and political support for that entity, which could not otherwise survive. Moreover, in taking such an approach the Court is encouraging the Russian authorities to establish effective control in the MRT through the activity of their agents, which they have explicitly refused to do. The Court ’ s approach in MRT cases may fail to find acceptance because of the incorrect application of the general principles of extraterritorial jurisdiction to the circumstances of the conflict in the region (as mentioned in paragraph 1 of this opinion). In Chiragov and Others v. Armenia ([GC], no. 13216/05, ECHR 2015), Judge Pinto de Albuquerque expressed a dissenting opinion criticising the Court ’ s conclusions with regard to Armenia ’ s jurisdiction over the Nagorno-Karabakh region, arguing that military, economic and political support do not legitimise a legal presumption of effective control. The same approach can be applied in Transdniestrian cases.

5. Any discussion about effective control based on general support without the involvement of State agents is, in my view, speculation, in which no court, as a powerful institution, can afford to engage. Moreover, any discussion of the nature of the separatist “regime” or “support” for that “regime” (hidden behind the term “legal tradition”) also amounts to mere speculation, since there is no evidence of mass violence against civilians as an obstacle to self-determination. However, the Court has concluded that the Transdniestrian authorities have no legitimacy. This makes the situation much worse and makes any compromise based on self-determination/autonomy almost impossible to achieve. One case cannot by itself be used as evidence to conclude that an entire legal tradition is incompatible with a human rights system, especially when compared with the Anglo-Saxon legal tradition, as this means that the tradition in question is completely illegal. This conception cannot achieve anything other than to humiliate the people of Transdniestria and of all those former Soviet republics which were recognised under international law, including under international covenants on fundamental rights, prior to their membership of the Council of Europe. It goes without saying that a society simply cannot survive without the application of minimum human rights standards and a perception of justice, although the legal tradition may admittedly have a decisive impact on the quality of life.

The problem of self-determination

6. Although Russia has not officially recognised the independence of the MRT in the context of the process of international recognition of a new State, the Russian authorities have consistently expressed their respect for the right of the Transdniestrian people to self-determination. I would point out that the Transdniestrian problem has never been addressed by the international community (including, first and foremost, by the Council of Europe) from the standpoint of self-determination.

7. I believe that the Court ’ s judgment should encourage, not the Russian Federation, but the international community and ultimately the Republic of Moldova, to assume effective control. It is not practicable to implement this idea without resolving the main problem. However the Court, in my opinion, has failed in the Transdniestrian cases (see IlaÅŸcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004 ‑ VII; Catan and Others , cited above; and IvanÅ£oc and Others v. Moldova and Russia , no. 23687/05 , 15 November 2011 , all referred to in the judgment), and also in the present case, to establish the principles of self-determination and remedial secession after the collapse of the Soviet Union.

8. Without such an assessment of the events and without understanding the sources of the conflict, it is impossible to determine the problem, to establish the truth and, ultimately, to find a solution. In all the previous Transdniestrian cases the Court ’ s analysis was very narrow and subjective. In Chiragov and Others , cited above, the Court was for the first time criticised, by Judge Pinto de Albuquerque, for the lost opportunity to address this issue in relation to the secession of the Nagorno-Karabakh region following the independence of the former Soviet republics of Azerbaijan and Armenia. Judge Pinto de Albuquerque raised the issue of developing the self ‑ determination principle “in a non-colonial context”, and I would further define the context as a post-Soviet one.

9. It is simply a matter of choice and legal strategy whether it is enough to protect the fundamental rights and freedoms of those who live in the region under the MRT Constitution or whether those rights and freedoms should also be safeguarded by the Convention system. I am in favour of the second option, but this task can only be achieved through the self-determination process, with the aim of providing the Transdniestrian population with some degree of autonomy within the framework of Moldovan sovereignty.

10. I would suggest that the Court be cautious in making an assessment of the events relating to the self-proclamation of the MRT. This did not happen “as a result of foreign military intervention”, as the Russian 14th Army had been located in the region since 1956 and its mission was to stop the war and to bring the opposing parties to peace. Also, it must be noted that the conflict was provoked by the Moldovan authorities ’ plans to grant the Moldovan language official status and to introduce the Latin instead of the Cyrillic alphabet, without taking any account of the interests of the Russian-speaking population in Moldova, including Russian nationals, with regard to self-identity. These plans were realised in the Constitution of Moldova adopted in 1994, with all protests being disregarded.

11. Unfortunately, international custom takes a black-and-white approach, recognising only occupiers and suffering States. But the nature of conflict is different. The conflict was caused by ignoring the minority ’ s fundamental right to use their native language in official correspondence with the Moldovan authorities. No transitional measures were introduced after the collapse of the Soviet Union. It seems that the international community was not ready to solve such sensitive problems relating to national identity; it did not undertake any efforts, nor did it issue any recommendations of this sort to Moldova. The international community simply recognised the jurisdiction of Moldova over Transdniestrian territory without imposing any additional requirements in the sphere of self ‑ determination of the MRT. Without such requirements the Republic of Moldova will never have any interest in solving the problem or any incentive to do so.

12. Guarantees for the protection of fundamental rights and freedoms relating to the self-identity and self-governance of those who live in the region were reflected in the 1997 Memorandum signed by the leaders of both Moldova and the MRT, and in the 2003 Kozak Memorandum. Again, they have never been implemented by Moldova.

13. I am not sure that keeping the remaining military ammunition and armaments in place could prevent the transfer of effective control to Moldova, since a political agreement needs to be achieved. However, I believe that the termination by Russia of its financial support to the region – without appropriate commitments on the part of Moldova – could not be considered as a responsible measure as it would lead to social and humanitarian problems. I cannot but observe that, twenty-five years after the conflict, nothing has changed and that Russia cannot be blamed for that. Ultimately, the Republic of Moldova gave an undertaking to apply the Convention throughout its territory, including in Transdniestria.

14. The fact that a new entity has not been recognised as a State under international law raises the issue of the responsibility of the international community and both respondent States to take all the necessary constitutional measures to bring such an uncertain situation to an end, as soon as possible, for the sake of the establishment and development of human rights, the rule of law and democracy in the region. The Russian Federation took general and balanced measures, including in the form of the Kozak plan, to transfer the region to the jurisdiction of Moldova with a degree of autonomy, so that both the Moldovan and regional interests would be satisfied. It should be noted that the regional interests cannot be ignored, especially after the war which claimed more than a thousand victims. However, the Moldovan government rejected the Kozak plan, leaving all the stakeholders in a situation of even deeper uncertainty. I would not blame the MRT authorities for refusing to follow the proposals as they were not invited to participate in the Court proceedings.

15. I am not convinced that Moldova has fulfilled its obligation to take all the political, judicial and other measures at its disposal to re-establish its control over MRT territory. There is no evidence of such measures, including any aimed at providing guarantees regarding the official use of the Russian language, autonomy, representation in the Moldovan Parliament, and so forth.

16. I regret that the Court ’ s judgment in the present case – in a context of uncertainty with regard to self-determination – will lead to an escalation of tension between the Russian Federation and the Council of Europe.