PARTLY DISSENTING OPINION OF JUDGE RESS

1. I have joined the partly dissenting opinion of Judge Casadevall but I would like to make some additional remarks on the positive obligations of Moldova . The Court has reached the conclusion that the applicants come within the jurisdiction of the Republic of Moldova ( see paragraphs 300- 31 of the judgment ) and that the declaration attached to the instrument of Moldova ' s ratification of the Convention is a reference to the de facto situation of control. Even in the absence of effective control over the Transdniestrian region, Moldova has a positive obligation under Article 1 of the Convention to take measures that it has the power to take in accordance with international law to secure to the applicants the rights guaranteed by the Convention. The Court has rightly stated that there is still jurisdiction under these circumstances even if a Contracting State is prevented from exercising its authority over the whole of its territory by a constraining de facto situation, such as obtains when a separate regime is set up. The sovereignty of Moldova over the whole territory was not and is not disputed by the international community, not even by the Russian Federation , which itself, through the presence of its troops, exercises control over the Transdniestrian region and thus also has jurisdiction and to that extent shares responsibility, though of a different kind, with Moldova . I would not conclude as the Court did in paragraph 333 that “the factual situation reduces the scope of the jurisdiction”. The “scope” of the jurisdiction is always the same but the responsibility of the Contracting State , arising from the undertaking given by the State under Article 1, can be considered to relate only to the positive obligations towards persons within its territory and not to all acts done by the local authority sustained by rebel forces in Transdniestria. As to the issues of jurisdiction and responsibility, the State in question must endeavour with all legal and diplomatic means available to it vis-à-vis foreign States and international organisations to continue to guarantee the protection of the rights and freedoms defined in the Convention.

2. I agree with the statement in paragraph 335 of the judgment that the applicants are within the jurisdiction of the Republic of Moldova for the purposes of Article 1 of the Convention but that its responsibility for acts complained of and committed in the territory of the “ MRT ”, over which it exercises no effective authority, is to be assessed in the light of its positive obligations. It is difficult to see how Moldova could be held responsible directly for all the acts of the Transdniestrian regime in that part of its territory. The Court concluded, in view of the complexity of the factual situation and the difficulty in indicating which measures the authorities should take in order to comply with the positive obligations most effectively, that intensive measures were taken in the years after 1991 - 92 to re-establish Moldova ' s control over the Transdniestrian territory. But these measures became less intensive and forceful after the ratification of the Convention by Moldova on 12 September 1997 and practically ceased to exist by the time Mr Ilaşcu was released.

As the Court has rightly stated, this obligation to re-establish control over Transdniestria required Moldova, firstly, to refrain from supporting the separate regime of the “ MRT ” in particular after 1997 and, secondly, to act by taking all the political, judicial and other measures at its disposal, especially regarding the applicants ' situation and any further violations of the Convention in relation to them. The Court itself notes that there was a “reduction in the number of judicial measures intended to assert Moldovan authority in Transdniestria” ( see paragraph 344 of the judgment ). I fully agree with the analysis of Judge Casadevall that there is nothing to justify the conclusion that Moldova discharged its positive obligations before Mr Ilaşcu ' s release in May 2001 , but that since this release there have been fewer significant signs, if any, of effective measures which the Moldovan Government could have taken to secure to the applicants their rights under the Convention.

It is obvious that there were different “phases” of more or less effective political and judicial efforts to re-establish Moldova ' s authority over the Transdniestrian territory and to bring an end to the situation of violations of Convention rights in relation to the applicants. After the “ MRT ” was set up in 1991-92 with the support of the Russian Federation , it remained all the time under the effective authority or at least under the decisive influence of the Russian Federation and survived thanks to the military, economic, financial and political support given to it by the Russian Federation ( see paragraph 392 of the judgment). Under these circumstances, it was an elementary duty of the Moldovan authorities to discharge their positive obligations by addressing the applicants ' fate continuously and specifically in their bilateral relations with the Russian Federation . This lack of diplomatic efforts and arguments regarding the Russian Federation ' s alleged violations was obvious after May 2001, but also in my view – as the Court has stated itself – after 1997 (see paragraph 349). The Russian Federation , acting as a guarantor State , was the one to which Moldova , in the framework of its positive obligations, should have addressed itself intensively, by pointing to the responsibility of Russia under the Convention. I cannot see any dividing line between the time of ratification in 1997 and the present , whether in May 2001 or at any other time.

3. The situation in Moldova is different from that described in Cyprus v. Turkey ( [GC], no. 25781/94 , § 78, ECHR 2001-IV) where the Court referred to the continuing inability of the Republic of Cyprus to exercise its Convention obligations in n orthern Cyprus as there was a full military occupation of n orthern Cyprus by Turkey. In the present case there is no occupation of the Transdniestrian territory , even though there is a rebel regime and the Russian Federation exercises a decisive influence and even control in that territory. But Moldova had and still has important means of influence to fulfil its positive obligations which it did not exercise with determination and effect. It even adopted an attitude of cooperation in different fields of administration and concluded administrative agreements with the rebel regime which made Judge Casadevall speak of a rather acquiescent attitude. However, where a State is prevented by circumstances from exercising its authority over parts of its territory because of a rebel regime , its responsibility may be engaged even if it does not show such a lack of commitment or effort as to amount to tacit acquiescence in the activities of the illegal administration. If one has to conclude that there is tacit acquiescence , then it would be difficult to attach responsibility to the rebel regime for the breach of international law. Such acquiescence would also make it difficult for the State in question to accept the support of third States in its struggle with the rebel regime. For the assisting State this could easily amount to an unjustified intervention. Consequently, a breach of a positive obligation can already be found where there is evidence before the Court which does not show clear collusion or acquiescence in the exercise of authority by a rebel regime within the territory , but nevertheless discloses an intermediate situation, as in the present case, where the State has not acted with all the required determination and effort which would have been possible.

4. It is not for the Court to exclude any tacit agreement or acquiescence between States on the exercise of authority and control. But under the Convention in all these cases the State is under the positive obligation to ensure that the Convention rights and freedoms continue to be observed.

The most crucial question is what measures the Court should indicate as being absolutely necessary for the fulfilment of that positive obligation. In my view, in order not to be held tacitly to acquiesce in the acts of the rebel authority, the State has to

(a) c ontinue its firm protests at bilateral and international levels against the illegal exercise of authority on its territory;

(b) c ontinue to take all possible and legally acceptable measures to regain full co ntrol on its territory ;

(c) continue to seek support, bilaterally and internationally, in particular through international organisations , for all measures taken against the illegal regime, since the Contracting States are required to secure human rights protection throughout their territory; and

(d) refrain from lend ing such support to the rebel regime as could be interpreted as clear acquiescence in its exercise of authority.

Questions about the efficacy of stricter measures like an economic blockade , for example, to ensure the protection of human rights in the short term, or the usefulness of economic, cultural and other cooperation to resolve the situation, are matters of political evaluation and diplomacy, to which the Court has cautiously tried to avoid giving an answer.

5. In contrast to the situation in Cyprus , relations between the Moldovan constitutional authorities and the authorities of the illegal Transdniestrian regime have never been completely interrupted. As the Court has emphasised, there were relations concerning the administration of Tiraspol airport, a common tel ephone system and understanding and cooperation on many levels. Since the issue is whether Moldova continues to exercise jurisdiction over parts of the territory, all these elements of economic relations, political security and other cooperation between the Moldovan and Transdniestrian authorities make it difficult to rebut the responsibility of Moldova in the present case. The situation is therefore closer to that in Assanidze v. Georgia ([GC] no. 71503/01, ECHR 2004 - II ) than to that in Cyprus v. Turkey , cited above . In the former case , concerning the Ajarian region, the constitutional authorities of Georgia encountered difficulties in securing compliance with the rights guaranteed by the Convention throughout this territory. In the present case , the positive obligation to re-establish full authority and control would demand a continued and firm assertion of the illegality of the Transdniestrian regime and of the rights of the Moldovan Government over the whole country. This must be done using all State powers, be they judicial, executive or legislative. I cannot see in the maintaining of judicial measures only a symbolic effect. However, there was also a clear reduction in the number of attempts by Moldova at international level to assert its authority in Transdniestria as of September 1997, and a definite reduction in its efforts to secure the applicants ' rights, even if account is taken of the extensive efforts made by Mr Sturza.

6. It will always be difficult to assess such a mosaic of measures, but if one recognises that the Russian Federation had jurisdiction over Transdniestria at the material time, and continues to exercise control, then one realises that there was an obvious lack of formal protests, declarations or other measures towards the Russian Federation, third countries, the United Nations and other international organisations, in an attempt to influence them to bring the illegal situation in Transdniestria and the applicants ' unacceptable situation to an end.