CASE OF CATAN AND OTHERS v. THE REPUBLIC OF MOLDOVA AND RUSSIAPARTLY DISSENTING OPINION OF JUDGE KOVLER
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Document date: October 19, 2012
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PARTLY DISSENTING OPINION OF JUDGE KOVLER
(Translation)
I regret that, as in the earlier cases of IlaÅŸcu and Others v. Moldova and Russia ([GC], no. 48787/99, ECHR 2004 ‑ VII) and IvanÅ£oc and Others v. Moldova and Russia (no. 23687/05, 15 November 2011), I do not share the conclusions of the majority regarding a number of points. In those cases I expressed my disagreement with the methodology of the analysis (wrong parallels with a Cyprus-type conflict), the (somewhat selective) presentation of the facts, the analysis (both disputable and disputed by a number of specialists [3] ) of the concepts of “jurisdiction” and “responsibility”, so there is no need for me to do so again here as the present case is part of a line of Transdniestrian cases. I shall therefore concentrate on the aspects peculiar to this particular case.
In my view, the Court has sought to avoid at all costs “a legal vacuum” in the territorial application of the Convention. The Court should therefore establish first and foremost what the exceptional circumstances are that are capable of giving rise to the exercise of jurisdiction by the Contracting State (Russia here) outside its own territorial borders. This is the thrust of the assessment of the general principles relevant to jurisdiction, within the meaning of Article 1 of the Convention, expressed by the Court in paragraphs 104 and 105 of the judgment, supported by numerous examples from its own case-law including its most recent decisions. It appears to establish such circumstances by suggesting, in paragraph 114, that such extraterritorial control can be exercised directly by a State through its agents or the assertion of its authority, but concludes immediately afterwards, in the same paragraph, as follows: “The Court accepts that there is no evidence of any direct involvement of Russian agents in the action taken against the applicants’ schools”. So, what exceptional circumstances remain? The “effective control over the “MRT” during the relevant period” (see paragraphs 114 and 116 of the judgment), plus the conclusions containing strong political overtones (paragraphs 117-121). Is this sufficient?
Some observers refer to “the unforeseeability” of the Court’s case-law in certain areas, particularly humanitarian law (see Kononov v. Latvia [GC], no. 36376/04, ECHR 2010) [4] . By contrast, the outcome of the present case was only too foreseeable, given that the judgments in Ilaşcu and Others and Ivanţoc and Others are – rightly or wrongly – already established case-law. What is “unforeseeable” in this judgment, however, is the controversial interpretation of the content and scope of the right to education set forth in Article 2 of Protocol No. 1. In the leading Belgian linguistic case the Court’s interpretation of the second sentence of that Article dispelled any ambiguities: “This provision does not require of States that they should, in the sphere of education or teaching, respect parents’ linguistic preferences, but only their religious and philosophical convictions. To interpret the terms “religious” and “philosophical” as covering linguistic preferences would amount to a distortion of their ordinary and usual meaning and to read into the Convention something which is not there” ( Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium (merits), 23 July 1968, § 6, Series A no. 6). Admittedly, that judgment also says that the right to education would be meaningless if it did not imply, in favour of its beneficiaries, the right to be educated in the national language or in one of the national languages, as the case may be. The Court could therefore have concentrated on the exercise of this “linguistic” right which, in the present case, ran up against the problem of the use of a particular alphabet.
In its admissibility decision the Court reiterated the position of the Moldovan Government in that connection: “According to the information available to the Moldovan Government, education in the three schools which were the subject of the present applications was currently being carried out in the official Moldovan language, using the Latin script, and based on curricula approved by the Moldovan Ministry of Education and Youth (MEY). The applicants had not provided any evidence to prove that the “MRT” authorities had been successful in their attempts to impose the Cyrillic script and an “MRT” curriculum... Thus, despite the attempts of the “MRT” authorities, the children were receiving an education in their own language and according to the convictions of their parents” (see Catan and Others v. Moldova and Russia (dec.), nos. 43370/04, 8252/05 and 18454/06, § 117, 15 June 2010).
In my view, the schooling issue as such and the language-alphabet aspect stops there. Regard must of course be had to Article 32 of the Convention, and also the notion that the Convention is a living instrument, but it should not be forgotten that the Convention is an international treaty to which the Vienna Convention on the Law of Treaties applies: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” (Article 31 “General rule of interpretation”). In my view, the Court should not examine the complaint under Article 2 of Protocol No. 1 on the merits because this complaint goes well beyond the ordinary meaning given to the right to education.
However, the Court follows a slippery slope proposed by the applicants: “education should be directed to the ‘full development of the human personality’” (see paragraph 125 of the judgment). In its examination of this application, the Court seeks to develop its case-law on Article 2 of Protocol No. 1... while refraining, by a majority, from replacing the problem within the context of the provisions of Article 8. The magic wand consisting in an “evolutive interpretation” of the Convention is applied only to Article 2 of Protocol No. 1, giving it a meaning hitherto unseen... The task that the Court sets itself at the beginning of its analysis of the context of this Article (see paragraph 136 of the judgment) conflicts with the ratione materiae criterion . I fear that, in taking this approach, the Court is setting a bad example of what is called “judicial activism”. In my view, the case is too sensitive to be used as a trial ground for judicial activism.
This activism is also apparent, alas, in the application of Article 41 of the Convention. What I find particularly shocking is the “egalitarian” approach: children aged six at the time of the events (born in 1997 or 1998) are placed on an equal footing with secondary-school pupils, and parents of schoolchildren with parents who have not included their children in their application. In the fairly recent judgment in the case of Ponomaryovi v. Bulgaria (no. 5335/05, § 56, ECHR 2011), the Court awarded each of the applicants EUR 2,000 on account of the violation of Article 14 taken in conjunction with Article 2 of Protocol No. 1. In Oršuš and Others v. Croatia ([GC], no. 15766/03, ECHR 2010), which concerns the education of Roma children, it awarded each applicant, for several violations, among which was Article 2 of Protocol No. 1, EUR 4,500, and in Sampanis and Others v. Greece (no. 32526/05, 5 June 2008) it awarded each applicant EUR 6,000 on account of the greater seriousness of the violation (Article 13 and Article 14 taken in conjunction with Article 2 of Protocol No. 1). In the present case, however, a far more generous award is made in respect of a single violation. This observation also concerns the costs and expenses: EUR 10,000 in Oršuš and EUR 50,000 in the present case, whereas these are both Grand Chamber cases... The principle “it’s not my money” is irrelevant because it is the taxpayer’s money of a member State of the Council of Europe.
It is in the light of all the foregoing considerations that I am unable to subscribe to the majority view regarding certain points that I consider to be of major importance.
ANNEX
LIST OF APPLICANTS
1. Catan and Others (application no. 43370/04)
No.
Applicant
Date of Birth
1.
BULGAC Elena
29/01/1968
2.
BULGAC Cristina
18/04/1988
3.
BULGAC Diana
29/05/1990
4.
CACEROVSCHI Lilia
14/10/1969
5.
CACEROVSCHI Andrei
07/01/1990
6.
CACEROVSCHI Tatiana
31/08/1995
7.
CATAN Alexei
02/06/1962
8.
CATAN Elena
09/10/1988
9.
CRIJANOVSCHI Anastasia
11/11/1969
10.
CRIJANOVSCHI Olesea
20/11/1994
11.
CRIJANOVSCHI Oxana
24/11/1990
12.
DUBCEAC Teodora
12/11/1957
13.
DUBCEAC Vladimir
22/07/1993
14.
PETELIN Tatiana
13/06/1969
15.
PETELIN Daniel
15/06/1994
16.
PRIMAC Maria
04/05/1961
17.
PRIMAC Ana
18/06/1991
18.
SAFONOVA Lidia
26/12/1967
19.
SAFONOVA Alisa
18/06/1995
20.
SAFONOVA Olesea
14/04/1990
21.
SALEBA Tatiana
24/05/1969
22.
SALEBA Iana
26/09/1989
23.
SARACUÅ¢A Victor
20/08/1967
24.
SARACUÅ¢A Doina
14/10/1990
25.
SARACUÅ¢A Tatiana
16/05/1996
26.
SCRIPNIC Tatiana
29/08/1961
27.
SCRIPNIC Corneliu
25/04/1989
28.
TIHOVSCHI Andrei
09/12/1958
2. Caldare and Others (application no. 8252/05)
No.
Applicant
Date of Birth
29.
BEIU Elena
06/07/1970
30.
BEIU Vladimir
28/05/1991
31.
BURAC Tamara
31/08/1965
32.
BURAC Dorin
14/07/1994
33.
BURAC Irina
04/04/1986
34.
CALDARE Elena
15/08/1969
35.
CALDARE Ruxanda
02/02/1992
36.
CALMÃŽC Ecaterina
05/07/1971
37.
CALMÃŽC Vadim
10/12/1992
38.
CARACACI Claudia
05/06/1959
39.
CARACACI Ala
04/02/1987
40.
CARACACI Oxana
04/03/1988
41.
CÃŽRLAN Valentina
01/04/1969
42.
CÃŽRLAN Artiom
08/07/1991
43.
CÃŽRLAN Sergiu
28/05/1995
44.
DOCHIN Elena
29/09/1965
45.
DOCHIN Cristina
08/08/1989
46.
GÄ‚INÄ‚ Maria
17/11/1967
47.
GÄ‚INÄ‚ Alina
15/12/1992
48.
GÄ‚INÄ‚ Victoria
02/04/1989
49.
LIULICA Victoria
28/04/1963
50.
LIULICA Elena
10/05/1990
51.
LIULICA Maxim
26/05/1987
52.
MUNTEANU Raisa
04/08/1958
53.
MUNTEANU Iulia
21/02/1994
54.
MUNTEANU Veronica
24/09/1987
55.
PÄ‚DURARU Constantin
02/06/1967
56.
PÄ‚DURARU Elena
08/06/1995
57.
RÃŽJALO Larisa
01/04/1966
58.
RÃŽJALO Rodica
07/10/1989
59.
SAVA Maria
18/10/1960
60.
SAVA Roman
22/12/1990
61.
SAVA Åžtefan
22/12/1990
62.
SIMONOV Aurelia
18/09/1970
63.
GRIÅ¢CAN Natalia
04/09/1994
64.
GRIÅ¢CAN Olga
31/07/1996
65.
TELIPIS Olga
24/10/1955
66.
TELIPIS Alexandra
26/05/1990
67.
TELIPIS Cristina
26/05/1990
68.
Å¢OPA Maria
30/06/1955
69.
Å¢OPA Ana
30/01/1987
70.
Å¢URCANU Tamara
06/10/1963
71.
Å¢URCANU Andrei
29/09/1987
3. Cercavschi and Others (application no. 18454/06)
No.
Applicant
Date of Birth
72.
ARCAN Liuba
10/02/1977
73.
ARCAN Irina
08/10/1994
74.
BACIOI Anatoli
29/08/1960
75.
BACIOI Nina
18/08/1962
76.
BACIOI Irina
24/05/1989
77.
BACIOI Mariana
24/05/1989
78.
BALTAG Tamara
13/09/1961
79.
BALTAG Igor
16/12/1994
80.
BALTAG Liuba
18/11/1998
81.
BODAC Ion
02/06/1962
82.
BODAC Tatiana
24/07/1994
83.
BOVAR Natalia
15/07/1971
84.
BOVAR Alexandru
12/08/1992
85.
BOVAR Ana
14/12/1998
86.
BOZU Nicolae
11/10/1964
87.
BOZU Nina
18/07/1966
88.
BOZU Sergiu
20/11/1988
89.
BRIGALDA Serghei
08/10/1967
90.
BRIGALDA Svetlana
02/09/1971
91.
CALANDEA Galina
18/01/1974
92.
CALANDEA Iurie
30/10/1967
93.
CERCAVSCHI Eleonora
11/09/1960
94.
JMACOVA Nadejda
05/04/1989
95.
CHIRICOI Natalia
27/02/1964
96.
CHIRICOI Dumitru
06/08/1992
97.
CHIRICOI Liuba
16/04/1960
98.
CHIRILIUC Natalia
24/05/1966
99.
CHIRILIUC Mihail
08/06/1997
100.
CHIRILIUC Tatiana
26/04/1991
101.
CHIÅžCARI Ghenadie
19/12/1961
102.
CHIÅžCARI Egor
23/03/1989
103.
COJOCARU Mariana
16/10/1974
104.
COJOCARU Andrei
03/06/1998
105.
COJOCARU Corina
11/09/1996
106.
COJOCARU Doina
06/11/1994
107.
COJOCARU Elena
03/06/1998
108.
FRANÅ¢UJAN Tatiana
22/03/1968
109.
FRANÅ¢UJAN Elena
23/05/1990
110.
FRANÅ¢UJAN Victoria
31/10/1988
111.
FRANÅ¢UJAN Tatiana
01/02/1971
112.
GAVRILAÅžENCO Maria
04/02/1964
113.
GAVRILAÅžENCO Olga
08/10/1998
114.
GAZ Diana
21/05/1987
115.
GAZUL Svetlana
23/02/1967
116.
GAZUL Constantin
26/11/1992
117.
GAZUL Victor
05/08/1989
118.
GOGOI Svetlana
14/08/1977
119.
GOGOI Nicolae
20/05/1998
120.
GOLOVCO Irina
05/05/1960
121.
GOLOVCO Elena
14/06/1987
122.
GORAÅž Angela
30/07/1970
123.
GORAÅž Vladimir
31/07/1967
124.
GORAÅž Valeriu
29/06/1994
125.
IVANOV Lidia
31/03/1967
126.
IVANOV Cristina
30/09/1989
127.
JITARIUC Svetlana
31/03/1960
128.
JITARIUC Laura
01/10/1994
129.
MASLENCO Boris
07/07/1966
130.
MASLENCO Valentina
02/02/1966
131.
MASLENCO Ion
25/05/1992
132.
MASLENCO Tatiana
20/05/1989
133.
MONOLATI Svetlana
16/08/1975
134.
MUNTEAN Ion
03/03/1958
135.
MUNTEAN Dumitru
17/09/1991
136.
NAZARET Natalia
13/11/1958
137.
NAZARET Gheorghe
04/08/1958
138.
NAZARET Elena
14/04/1989
139.
PALADI Natalia
24/05/1979
140.
PARVAN Elena
22/10/1973
141.
PARVAN Natalia
26/09/1993
142.
PARVAN Vitalie
29/06/1998
143.
PAVALUC Nadejda
08/05/1969
144.
PAVALUC Andrei
19/03/1991
145.
PAVALUC Ion
11/01/1994
146.
PLOTEAN Viorelia
25/08/1968
147.
PLOTEAN Cristina
03/07/1990
148.
PLOTEAN Victoria
13/02/1992
149.
POGREBAN Ludmila
07/07/1968
150.
RACILA Zinaida
10/04/1965
151.
RACILA Ecaterina
01/02/1991
152.
RACILA Ludmila
03/01/1989
153.
ROÅžCA Nicolae
17/12/1957
154.
ROÅžCA Victoria
09/04/1990
155.
ROTARU Emilia
17/08/1968
156.
ROTARU Ion
30/08/1989
157.
ROTARU Mihai
16/08/1994
158.
SANDUL Serghei
07/07/1970
159.
SANDUL Liubovi
15/08/1998
160.
STANILA Raisa
18/02/1961
161.
STANILA Svetlana
20/12/1988
162.
TARAN Igor
30/01/1969
163.
TARAN Olga
03/03/1998
164.
TIRON Valentina
01/07/1955
165.
TIRON Ana
19/06/1987
166.
TRANDAFIR Galina
26/08/1964
167.
TRANDAFIR Natalia
24/11/1987
168.
TULCII Igor
07/07/1963
169.
TULCII Olga
01/10/1987
170.
ZEABENÅ¢EV Andrei
28/12/1997
[1] Note by the Registry: Mr Shevchuk was elected “President” of the “MRT” in December 2011.
[2] . European Committee on Crime Problems, Prevention of juvenile delinquency: the role of institutions of socialisation in a changing society , Strasbourg, Council of Europe, 1982.
[3] Referring to the Court’s conclusion in Ilaşcu regarding “the effective authority” and “the decisive influence” of Russia in the region, G. Cohen-Jonathan observes: “This reiterates the terms and the solution analysed in Cyprus v. Turkey : the important point under Article 1 is to determine which State exercises effective control (or “decisive” influence”) where overall control is not exercised” – G. Cohen-Jonathan. “Quelques observations sur les notions de ‘juridiction’ et d’injonction”, Revue trimestrielle des droits de l’homme , no. 2005/64, p. 772.
[4] E. Decaux. “De l’imprévisibilité de la jurisprudence européenne en matière de droit humanitaire”, Revue trimestrielle des droits de l’homme , no. 2011/86, pp. 343-57.