PAR TLY DISSENTING OPINION OF JUDGE CASADEVALL JOINED BY JUDGES RESS, BÎRSAN, TULKENS AND FURA-SANDSTRÖM

(Translation)

1. I did not follow the majority of the Grand Chamber in their conclusion that Moldova ' s responsibility on account of its failure to discharge its positive obligations under the Convention was engaged only from May 2001 onwards.

That view led to the finding, a paradoxical and incoherent one in my opinion, that Moldova breached Articles 3 and 5 of the Convention on account of the ill-treatment, detention and conditions of detention suffered by Mr Ivanţoc, Mr Leşco and Mr Petrov-Popa (only after May 2001) , but bore no responsibility for the same facts and above all for the death sentence imposed by the “Supreme Court of the MRT ” and the risk of execution as regards Mr Ilaşcu.

As the applicants come within the jurisdiction of Moldova ( see paragraph 335 of the judgment), its responsibility is engaged, in my opinion, from the date of its ratification of the Convention to the present and with regard to all the applicants, there being no justification, quite the reverse in fact, for taking the view that its positive obligations did not exist during the period from 12 September 1997 to May 2001, as the majority did. I have set out the reasons why I disagree below.

2. The ceasefire agreement of 21 July 1992 marked the end of an initial phase of real efforts by Moldova to exercise its authority over the whole of its territory. After that date it tended to adopt a rather acquiescent attitude, channelling its efforts into negotiation with a view to re-establishing its control over Transdniestrian territory instead of trying to secure the rights of the applicants, who had been unlawfully tried and detained for ten years in Mr IlaÅŸcu ' s case and nearly twelve years in the case of the other three.

3. As the Court said, in view of the complexity of the factual situation, the question whether Moldova discharged its positive obligations is closely bound up both with relations between Moldova and the Russian Federation and with relations between Transdniestria and the Russian Federation . In addition, account has to be taken of the influence Moldova could have exerted through the Russian authorities to impro ve the applicants ' situation. L astly, it is also important to take into account certain acts dating from before ratification and use them for comparative purposes when assessing the e fforts made by Moldova after 12 September 1997 ( see paragraphs 337 - 38 of the judgment). Consequently, it is necessary to make an overall assessment of the situation as it developed in the course of time, and of acts and omissions.

4. It is true that, from the onset of the hostilities, the Moldovan authorities never ceased complaining of the aggression they considered they had suffered and rejected the secessionists ' declaration of independence. After the end of the hostilities, in July 1992, the Moldovan authorities continued to take steps to re-establish control, by bringing criminal proceedings in 1993. Subsequently, after 1994, they continued to assert their sovereignty over the territory controlled by the “ MRT ”, both internally and internationally ( see paragraphs 341 - 43 of the judgment).

5. However, from 1997 onwards , the conclusion is inescapable that there was a reduction in the number of attempts by the Moldovan authorities to exercise control in Transdniestria, and that these attempts were limited to diplomatic activity. Moreover, Moldova had just been accepted as a member of the Council of Europe , yet , paradoxically, did not take advantage of the opportunities afforded it in that political forum.

On the other hand, express or de facto measures of cooperation were taken between the Moldovan authorities and the Transdniestrian separatists: administrative, economic and political agreements were reached, relations were established between the Moldovan p arliament and the “ p arliament of the MRT ”, cooperation was introduced for several years in the police, prison and security fields, and other forms of participation were developed in fields such as the issuing of identity papers, air - traffic control, telephone links and sport ( see paragraphs 114, 174 - 75, 177 - 79 and 185 of the judgment).

6. As regards the applicants ' situation , before ratification of the Convention in 1997 the Moldovan authorities took certain measures, such as the Supreme Court ' s judgment of 3 February 1994 quashing the applicants ' conviction and setting aside the warrant for their detention; the prosecution beginning on 28 December 1993 of the “judges” of the “Supreme Court of the MRT ” and other Transdniestrian officials accused of usurping official functions; the amnesty decreed by the President of Moldova on 4 August 1995; the Moldovan parliament ' s request of 3 October 1995; sending doctors to examine the applicants detained in Transdniestria; and providing assistance to the families ( see paragraphs 222 - 23, 226 - 27 and 239 of the judgment).

7. But once again, after 1997 , the measures taken to secure the applicants ' rights were limited to sending doctors (the last visit taking place in 1999), providing financial support to their families, and interventions by Mr Sturza to secure their release (the last of these interventions recorded in the file came in April 2001). The Moldovan Government acknowledged that , in response to the demands made by the separatists during discussions on a settlement of the conflict and the applicants ' release , they had changed their negotiating strategy, giving greater priority to diplomatic exchanges with a view to preparing the return of Transdniestria to the Moldovan legal order , while simultaneously abandoning the judicial measures previously taken ( see paragraph 344 in fine of the judgment ). It is understandable that certain cooperation measures were taken by the Moldovan authorities with the laudable aim of improving the daily lives of the Transdniestrian population and enabling them to lead as nearly normal lives as possible.

8. I do not wish to pass judgment on the pertinence or effectiveness of the political strategy adopted by Moldova in order to settle such a crucial question as that of its territorial integrity. Nevertheless, even in the absence of effective control over the Transdniestrian region, the Moldovan authorities remain under an obligation to take all the measures in their power, whether political, diplomatic, economic, judicial or other measures ( see paragraph 331 of the judgment), to secure the rights set forth in the Convention to persons formally within their jurisdiction, and therefore to all those within Moldova ' s internationally recognised borders.

As regards the nature and effectiveness of the measures taken or those which could have been taken, certain facts may be more significant than others on account of their consequences. In that connection, having regard to Mr IlaÅŸcu ' s release in May 2001, it may be presumed that not all the measures envisaged to obtain the applicants ' release could be considered doomed to failure, as the majority seem to admit in the second part of paragraph 347 of the judgment.

9. I consider that the efforts made by the Moldovan authorities with a view to securing the rights set forth in the Convention after its ratification in 1997 were not pursued with the firmness, determination and conviction required by the serious situation in which the applicants f ound themselves . For example, the following instances of manifest inaction, and sometimes counter-action, must be noted.

(a) On 28 December 1993 an investigation was opened in connection with the persons involved in the applicants ' prosecution and conviction, but the absence of information on the measures taken by the authorities to bring this investigation to a satisfactory conclusion could give rise to serious doubts about its effectiveness ( see paragraph 221 of the judgment).

(b) The Moldovan Supreme Court ' s judgment of 3 February 1994 quashing the judgment of the “Supreme Court of the MRT ” of 9 December 1993 and ordering the return of the case file to the prosecution service for a new investigation was never acted upon ( see paragraph 222 of the judgment).

(c) No steps were taken after the amnesty declared on 4 August 1995 by the Moldovan President. Similarly, the Court has not been informed of any action undertaken by the Moldovan Government or the Ministry of Foreign Affairs on the applicants ' behalf, notwithstanding the parliament ' s request to that effect on 3 October 1995 ( see paragraph 227 of the judgment).

(d) On 16 August 2000 the order of 28 December 1993 was declared void by the public prosecutor on the ground that the offences had not been given the correct legal classification. The same decision framed new charges but it was held to be inadvisable to open an investigation on the basis of those charges because prosecution was time-barred . One can only express doubts about the seriousness of proceedings in which the authorities waited for seven years before reclassifying the offences under investigation only to decide in the end that prosecution on the new charges was subject to limitation. Without being able to form a view on the question whether Moldovan law authorises limitation in respect of offences which are the subject of a pending criminal investigation, I must point out that in the present case limitation became possible precisely because of the length of an investigation which had in addition proved to be ineffectual ( see paragraph 229 of the judgment).

(e) The opening by the public prosecutor on 16 August 2000 of a criminal investigation in respect of the governor of Hlinaia Prison was not followed up and in any case the governor told the Court ' s delegates that he had not been informed of it ( see paragraph 230 of the judgment and paragraph 137 of the Annex).

(f) As a result of the staying or discontinuance of the above-mentioned investigations, it is now possible for certain senior officials of the “ MRT ” regime, including Mr Chevtsov, to enter Moldova without being called to account in any real sense for their activities in the regime ' s service (see Annex: Mr Ilaşcu, § 21; and Mr Rusu, § 304). Moreover, I note, with no small surprise, that since his return to Moldova a former “Minister of Justice of the MRT ”, Mr Sidorov, has held high State office in several capacities and has been the President of the Moldovan parliament ' s Human Rights and Minorities Committee since 2001 ( see paragraph 168 of the judgment).

10. It should be noted that, while taking steps to promote cooperation with the secessionist regime with the avowed aim of making life easier for the population of Transdniestria, the Moldovan authorities have not displayed the same diligence with regard to the fate of the applicants. In their negotiations with the separatists, whether before or after May 2001, the Moldovan authorities have restricted themselves to raising the question orally, without trying to reach a written agreement providing for the applicants ' release ( see paragraphs 172 and 348 of the judgment). Similarly, although three of the applicants have been unlawfully deprived of their liberty for nearly twelve years , no overall plan for the settlement of the Transdniestrian situation deals with their situation ( see paragraph 348 in fine ).

11. The Court accepts that the Moldovan authorities have not shown themselves any more attentive to the applicants ' fate in their bilateral relations with the Russian Federation, and that the fact that the Moldovan Government refrained at the hearing on 6 June 2001 from arguing that the Russian Federation might be responsible, with the aim of averting “ undesirable consequences, namely the halting of the process aimed at ending ... the detention of the other applicants ” ( see paragraph 360 of the judgment), amounted to an admission on their part of the influence the Russian authorities might have over the Transdniestrian regime ( see paragraph 349 of the judgment). However, it would seem that the Moldovan authorities, both before and after 2001, did not take advantage of all the opportunities available to them to bring that influence into play on the applicants ' behalf.

12. In conclusion, one may well disagree with the minority, who consider that the applicants are not within the jurisdiction of Moldova for the purposes of Article 1 of the Convention, that Moldova has not failed to discharge its positive obligations and that its responsibility is not engaged in respect of the violations complained of, but that approach is perfectly coherent. On the other hand, the conclusion that the applicants are within the jurisdiction of Moldova and that Moldova is bound by its positive obligations leads unavoidably to acceptance that its responsibility is fully engaged from the date of its ratification of the Convention, on 12 September 1997 .

The fateful date “May 2001” seems wholly artificial and nonsensical.