PARTLY DISSENTING OPINION OF JUDGE Sir N icolas BRATZA JOINED BY JUDGES ROZAKIS, HEDIGAN, THOMASSEN AND PANŢÎRU

1 . While I am in agreement with the conclusion of the majority of the Court that the responsibility of the Russian Federation was engaged in respect of the breaches of the Convention alleged by the applicants and found to be established, I am unable to share the view of the majority that the responsibility of Moldova was similarly engaged.

2 . Central to the case against both respondent States is the question whether the applicants are to be regarded as “within their jurisdiction” for the purposes of Article 1 of the Convention. If they are to be so regarded, State responsibility will in principle be engaged for breaches of the Convention which are shown to have occurred or to have continued after the coming into effect of the Convention – in the case of Moldova , 12 September 1997 and in the case of Russia , 5 May 1998 .

3 . It is established in Banković and Others v. Belgium and Other s ((dec.) [GC] , no. 52207/99, § § 59-61, ECHR 2001-XII ) that the notion of “jurisdiction” in Article 1 of the Convention is essentially territorial in nature and that it is only in exceptional cases that acts performed or producing effects outside the territory of a Contracting State can constitute an exercise of “jurisdiction” for this purpose. Conversely, the presumption that persons within the territory of a State are within its “jurisdiction” for Convention purposes is a rebuttable one and, exceptionally, the responsibility of a State will not be engaged in respect of acts in breach of the Convention which occur within its territory. This is apparent from 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 northern Cyprus” and thus to “the regrettable vacuum in the system of human rights protection” which would follow from a finding that the applicants were not within the jurisdiction of Turkey.

4 . The principal questions which fall to be determined are (i) whether this is an exceptional case in which the applicants are to be regarded as within the “jurisdiction” of the Russian Federation despite being at all material times outside the territory of that State and (ii) whether, being within the territory of Moldova, the applicants are to be regarded as within its “jurisdiction” so as to engage the responsibility of that State or whether, exceptionally, the presumption that they were and are within Moldova ' s jurisdiction is rebutted. The two questions are closely linked and depend, as the Court ' s judgment makes clear, on a close analysis of the factual situation existing in, and relating to, the Transdniestrian region from 1991 until the present day.

A. Applicable principles

5 . The circumstances in which a State may be held responsible for acts in breach of the Convention occurring outside its territory were addressed and defined in the Court ' s judgments in Loizidou v. Turkey ( p reliminary o bjections ) (judgment of 2 3 March 1995, Series A no. 310) , Loiz idou v. Turkey (m erits ) (judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI) and Cyprus v. Turkey (cited above) , and in its Banković and Others decision (cited above). Such responsibility may, in so far as relevant, be engaged :

(i) where as a consequence of military action – whether lawful or unlawful – a State exercises effective control of an area outside its national territory. Such control may be exercised directly, through its own armed forces , or indirectly , through a subordinate local administration ( see Loizidou ( p reliminary o bjections ) , pp. 23-24, § 62). Where a State exercises effective overall control of a territory, its responsibility cannot be confined to the acts of its own soldiers or officials – whether or not those acts are authorised by the high authorities of the State – “but must also be engaged by virtue of the acts of the local administration which survives by virtue of [the] military and other support” ( see Cyprus v. Turkey , § 77). Further, when such effective control is found to exist, responsibility is engaged even if no detailed control is exercised over the policies and actions of the local administration ( see Loizidou ( m erits ) , pp. 2235-36, § 56) ;

(ii) where a State, through the consent, inv itation or acquiescence of the g overnment of the territory, exercises all or some of the public powers normally to be exercised by that g overnment ( see Banković and Others , § 71).

6 . There is less direct authority concerning the converse case – the responsibility of a State within whose territory violations of the Convention occur but which is prevented from exercising any effective control within the territory in question, whether due to military occupation by the armed forces of another State, or to acts of war or rebellion within the territory or to the occupation and control of the territory by a separatist administration sustained by rebel forces or by another State. It is clear that an individual remains “within the jurisdiction” of the State and that the presumption of State responsibility is not rebutted where the State concerned is shown to collude with the local administration in the exercise of authority by that administration within the territory concerned. Further, even if a State does not exercise effective control within a part of its territory, an individual will be treated as within that State ' s “jurisdiction” in respect of acts in violation of the Convention occurring within that part, if its servants or agents can be shown to have participated directly or indirectly in the particular acts in question or to have acquiesced in the commission of those acts.

7 . The majority of the Court go further, holding that where 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 separatist regime is set up, it does not thereby cease to have “jurisdiction” for the purposes of Article 1 of the Convention over that part of its territory temporarily subject to a local authority sustained by rebel forces or by another State; rather, such a factual situation “reduces the scope of that jurisdiction in that the undertaking given by the State under Article 1 must be considered by the Court only in the light of the Contracting State ' s positive obligations towards pe rsons within its territory ” ( see paragraph 333 of the judgment ). The nature of the positive obligation thereby incurred is variously described in the judgment as a “duty to take all the appropriate measures which it is still within its power to take” to ensure respect for the Convention rights and freedoms ( see paragraph 313); an “obligation ... to take the diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention” ( see paragraph 331); and a duty to “endeavour, with all the legal and diplomatic means available to it vis-à-vis foreign States and international organisations, to continue to guarantee the enjoyment of the rights and freedo ms defined in the Convention ” ( see paragraph 333). In the opinion of the majority, the Court ' s role is not to indicate what measures the authorities should take in order to comply with their obligations most effectively , but rather to verify that the measures actually taken were appropriate and sufficient in the present case, the Court ' s task being “to determine to what extent a minimum effort was nevertheless possible and whether it sh ould have been made” ( see paragraph 334 of the judgment ). Applying these principles in the instant case, the majority of the Court find that “the applicants are within the jurisdiction of the Republic of Moldova for the purpose of Article 1 of the Convention but that its responsibility for the acts complained of, 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 under the Convention” ( see paragraph 335).

8 . I am unable to agree with this analysis. In the first place, I have difficulty in accepting the proposition that those within a part of the territory of a State over which, as a result of its unlawful occupation by a separatist administration, the State is prevented from exercising any authority or control may nevertheless be said to be within the “jurisdiction” of that State according to the autonomous meaning of that term in Article 1 of the Convention, which term presupposes that the State has the power “to secure to everyone ... the rights and freedoms” defined therein. I find it equally difficult to accept the conclusion of the majority of the Court that in such a factual situation those within the territory remain “within [the] jurisdiction” of the State but that the scope of that “jurisdiction” is reduced, the State continuing to owe positive obligations with regard to the Convention rights of everyone in the territory. The very use of the term s “positive obligations of the State” and the reliance placed in the judgment on the case-law of the Court under Article 1 concerning such obligations appears to me to be both misleading and unhelpful in the present context. That case-law – with its references to the fair balance to be struck between the general interest and the interests of the individual and the choices to be made in terms of priorities and resources – was developed in a factual context where the respondent State exercised full and effective control over all parts of its territory and where individuals within that territory were indisputably within the “jurisdiction” of the State for Convention purposes. The Court ' s reasoning cannot in my view be readily adapted to the fundamentally different context in which a State is prevented by circumstances outside its control from exercising any authority within the territory and where the very issue is whether individuals within the territory are to be regarded as within the “jurisdiction” of the State for Convention purposes.

I am unable to accept that in such a situation a State ' s responsibility for a violation of the Convention rights of individuals within the territory may be engaged merely because of a failure on its part to establish that it had made sufficient efforts on the legal or diplomatic plane to guarantee those rights. In the specific context of the present case, the responsibility of a State in respect of the wrongful detention of persons detained within territory outside its effective control cannot in my view depend on whether at any particular point of time the State is, in the estimation of the Court, making sufficiently concerted efforts to secure their release. Nor can I accept an interpretation of the Convention which would require the Court to make an assessment , in a complex and fluctuating international situation, as to whether particular legal or diplomatic measures would be effective to restore constitutional rule within the territory, whether such measures were in practice possible and whether they were adequately implemented by the State concerned.

9 . I can agree that, where a State is prevented from exercising any authority or control over territory within its borders, the inaction of the State concerned may nevertheless be held to engage its responsibility under the Convention in respect of those within the territory. However, such responsibility could in my view only be engaged in exceptional circumstances where the evidence before the Court clearly demonstrates such a lack of commitment or effort on the part of the State concerned to reassert its authority or to reinst a te constitutional order within the territory as to amount to a tacit acquiescence in the continued exercise of authority or “jurisdiction” within the territory by the unlawful administration.

B. Application of the above principles in the present case

1 . The Russian Federation

10 . Applying the above principles to the facts of the present case, I am in full agreement with the reasoning of the majority of the Court in holding that, at all material times, the applicants were, and in the case of three of the applicants continue to be, within the “jurisdiction” of the Russian Federation for the purposes of Article 1 of the Convention and that its responsibility is accordingly engaged for the violations of the Convention which have been found by the Court. In particular, I find the following facts to be established on the evidence before the Court .

(i) During the conflict in 1991-92, forces of the 14 th Army (after 1 April 1992, the Russian Operational Group – ROG) stationed in Transdniestria fought with and on behalf of the separatist forces within the territory and voluntarily transferred to them, or allowed to be seized by them, large quantities of armaments.

(ii) Throughout the conflict, the leaders of the Russian Federation provided political support to the Transdniestrian separatists, inter alia , through their public declarations.

(iii) The applicants were arrested in June 1992 with the direct participation of soldiers of the 14 th Army/ROG; the first three applicants were detained in the garrison headquarters of the 14 th Army/ROG where they were severely ill-treated; and the applicants were subsequen tly surrendered by the a rmy authorities into the charge of the separatist police in the knowledge of the offences of which they were suspected and the likely consequences for the applicants of their surrender to the illegal and unconstitutional regime.

(iv) Following the ceasefire agreement of 21 July 1992 , the Russian Federation continued to provide military, political and economic support to the separatist regime within the territory and thereby ensured its continued survival.

(v) In the period after ratification of the Convention, the Russian Federation, through its continued stationing of troops on Moldovan territory in breach of its undertaking to withdraw, combined with its economic, financial and political support for the illegal Transdniestrian regime which it had helped to establish, has continued to enable the regime to survive and to exercise authority and control within the territory.

2. Moldova

11 . I would note at the outset that, unlike the situation examined recently by the Court in Assanidze v. Georgia ([GC] no. 71503/01, ECHR 2004 - II ), the present case is not one in which the Moldovan authorities are merely “[encountering] difficulties in securing compliance with the rights guaranteed by the Convention in all parts of their territory” ( see Assanidze , § 146). As noted in the present judgment ( see paragraph 330), it is common ground that, from the beginning of the conflict in 1991 until the present day, Moldova has been, and continues to be, prevented from exercising any authority or control within the territory of Transdniestria as a result of the occupation of the territory by the unlawful separatist regime. Moreover, the majority of the Court acknowledge in the judgment that, in the period from 1991 until the date of ratification of the Convention by Moldova in September 1997, not only did Moldova bear no responsibility for the acts in violation of the Convention of which the applicants complain but no criticism can be made of a lack of commitment or effort on the part of Moldova to reassert its control within the territory or to secure the applicants ' rights. This is, in my view, plainly correct.

During the course of the hostilities themselves, the constitutional authorities of Moldova , confronted as they were by forces which were superior in numbers, weaponry and fighting strength, were incapable of re-establishing control over the Transdniestrian territory. Moreover, as is noted in the judgment, from the outset of hostilities the Moldovan authorities not only rejected the separatists ' unilateral declaration of independence but publicly complained of the aggression against Moldova , calling for international support. Even after armed hostilities had ceased, the Moldovan authorities had no practical possibility of re-establishing constitutional rule within the territory, being confronted by a regime which was supported militarily, politically and economically by the Russian Federation . There is nothing to suggest any acquiescence on the part of those authorities in the control exercised within the territory by the unlawful separatist administration; on the contrary, as the evidence shows and as the judgment points out, the authorities continued to denounce the regime and to assert their sovereignty over the territory both internally and internationally. Thus, for example, in 1994 Moldova adopted a new Constitution which provided, inter alia , for the possibility of granting a certain degree of autonomy to Transdniestria; in the same year, Moldova signed with the Russian Federation an agreement for the total withdrawal of Russian troops from the territory within a three-year period.

12 . As regards the position of the individual applicants, not only was their arrest, detention and treatment while in custody not imputable in any sense to the Moldovan authorities, but, as emphasised in the judgment, there is nothing to suggest any collusion or acquiescence on their part in any of the acts in violation of the Convention of which complaint is made. The evidence shows that, on the contrary, the executive and judicial authorities of the State took a number of steps to emphasise the unlawfulness of what had occurred and to secure the release of the applicants, in particular by quashing the applicants ' convictions, by instituting criminal proceedings against those responsible for their prosecution and conviction and by systematically raising the question of the applicants ' release in discussions with both the separatist leaders and the authorities of the Russian Federation.

13 . In a declaration made by Moldova and contained in the instrument of ratification of the Convention deposited on 12 September 1997 , it was stated that Moldova would be “unable to guarantee compliance with the provisions of the Convention in respect of omissions and acts committed by the organs of the self-proclaimed Trans-Dniester republic within the territory actually controlled by such organs, until the conflict in the region is finally settled”. While the Court in its decision on the admissibility of the application held that the declaration was not a valid reservation for the purposes of Article 57 of the Convention, there is no reason to doubt that the declaration represented an accurate statement of the factual situation at the date of ratification.

14 . It is in the period after September 1997 that the majority of the Court have found the Moldovan authorities to be open to criticism. Since it is accepted that Moldova exercised no control within the territory of Transdniestria, it is not suggested that the State bears direct responsibility for the Convention violations of which complaint is made; rather, the majority have found that the responsibility of Moldova for such violations is engaged on the grounds of its failure to discharge its positive obligations to take sufficient, effective and appropriate measures to secure the applicants ' Convention rights. However, the judges making up the majority are divided as to the relevant date from which Moldova may be said to have failed to fulfil such obligations and thus as to the responsibility of Moldova for the acts in breach of the Convention which are found to have occurred. One group (“the first group”), whose views are reflected in the p artly d issenting o pinion of Judge Casadevall, considers that Moldova failed in its positive obligations from the date of entry into force of the Convention in September 1997 and that accordingly Moldova is responsible for violations of the Convention occurring after that date; the other group (“the second group”), whose views are represented in the judgment itself, considers that such a failure occurred only after May 2001 and that Moldova ' s responsibility is not engaged in respect of violations occurring before that date, incl uding those complained of by Mr Ilaşcu who was released from detention in that month. It is necessary to deal with the reasoning of both groups and I consider first the opinion favouring a more extensive responsibility on the part of Moldova .

(a) Responsibility from September 1997

15 . The conclusion of the first group that Moldova was in breach of its positive obligations from the date of the coming into force of the Convention appears to be based on three principal factors:

(a) an alleged reduction in the number of attempts by Moldova to assert control in Transdniestria and the limiting of those attempts to diplomatic activity;

(b) the development of administrative, economic, political, security and other cooperation between the Moldovan and Transdniestrian authorities; and

(c) a reduction in the measures taken and efforts made by Moldova to secure the applicants ' rights.

It is convenient to address in turn each of these factors, none of which in my view, seen either individually or collectively, is such as to justify a finding of State responsibility on the part of Moldova.

16 . As to the first of the factors relied on, it is true that there appears to have been a reduction in the judicial measures in Moldova designed to assert authority over the Transdniestrian territory. In particular, it would seem that the investigation into the offences alleged against the applicants which had been ordered by the Supreme Court did not take place and that the criminal investigation opened in respect of the g overnor of Hlinaia Prison on 16 August 2000 was not followed up. In addition, on the same date the order of 28 December 1993 opening an investigation in connection with the persons involved in the applicants ' prosecution and conviction was declared void.

17 . I do not attach great significance to the failure to pursue these measures, which had not over the years proved effective in bringing to an end or undermining the illegal regime within the territory , and the effect of which appears to have been at most symbolic. Special emphasis is laid by the first group on the fact that, having reclassified the charges against those responsible for prosecuting and convicting the applicants on 16 August 2000 , the Moldovan authorities failed to pursue an investigation on the grounds that the proceedings were time-barred and that the persons under suspicion were refusing to assist the authorities with their e nquiries. While, as observed in the opinion of the first group, doubt may be expressed about the seriousness of a criminal investigation in which the authorities waited for seven years before reclassifying the offence, there is no evidence to show that the decision to reclassify the offence or the decision that the charges were time-barred under domestic law were decisions taken otherwise than in good faith and on justifiable legal grounds. Moreover, the stance taken by the judicial authorities affords in my view no support for the contention that the Moldovan authorities had renounced all efforts to reassert control over their territory.

18 . More importantly, as the judgment recognises, in and from 1998, the efforts of the Moldovan authorities were directed more towards diplomatic activity designed to bring about an overall settlement of the situation in the region and the restoration of constitutional rule in the Transdniestrian territory. In particular, in March 1998, the authorities of Moldova, the Russian Federation, Ukraine and the region of Transdniestria signed a number of instruments with a view to settling the Transdniestrian conflict ( see paragraph 97 of the judgment ); numerous meetings and negotiations took place between representatives of Moldova and the separatist regime with the same purpose ( see paragraphs 103- 0 4 and 171 of the judgment ); and from 2002 to the present day a number of proposals for resolution of the situation have been put forward and discussed between the authorities of Moldova, the Russian Federation and the OSCE ( see paragraphs 106-09 of the judgment ). I see no reason to doubt the assertion of the Moldovan Government, which was supported by the eviden ce of Mr Sturza ( see Annex, §§ 309- 13) and Mr Sidorov ( see Annex, § 446), that this change of strategy towards diplomatic approaches was aimed at laying the ground for the return of the Transdniestrian territory within the Moldovan legal order and thereby restoring the constitutional rights of those living within the territory, including the applicants. I can find nothing in the efforts which have been made and continue to be made by the Moldovan authorities to negotiate an overall settlement to suggest support for the separatist regime or acquiescence in its continued unlawful exercise of authority within the territory.

19 . The reliance placed on the measures of cooperation with the separatist authorities is, I consider, to be viewed in the same light. Special attention is drawn in the opinion of the first group to economic cooperation agreements, the establishment of relations between the Moldovan parliament and the so-called “p arliament of the MRT ”, cooperation in police and security matters and forms of cooperat ion in other fields such as air- traffic control, telephone links and sport. The Moldovan Government explained that these cooperati on measures had been taken out of a concern to improve the everyday conditions of those living in Transdniestria and to allow them to live as normal lives as possible. No convincing grounds have been advanced for doubting that this was the underlying aim – an aim which is accepted in the opinion of the first group to be a laudable one – and, given their nature and limited character, the measures cannot, in my view, be seen as affording any support for the Transdniestrian regime. On the contrary, they represent a confirmation by Moldova of its desire to re-establish control over the entirety of its territory.

20 . The first group criticise the fact that, in taking steps to improve the conditions of life of those within the territory, the Moldovan authorities have not displayed the same diligence with regard to the fate of the applicants. While asserting that it is not for the Court to assess the pertinence or effectiveness of the political strategy adopted by Moldova in order to settle as crucial a question as that of its territorial integrity, the first group nevertheless go on to observe that the Moldovan authorities remain under an obligation “to take all the measures in their power, whether political, diplomatic, economic, judicial or other measures ... , to secure the rights guaranteed by the Convention to those formally within their jurisdiction, and therefore to all those within Moldova ' s internationally recognised borders”. However, quite apart from my disagreement with the suggestion that those in the territory of Transdniestria are to be regarded as within the “jurisdiction” of Moldova for Convention purposes, these criticisms overlook, in my view, that the very purpose of the political strategy was and is to restore constitutional rule in the separatist territory, which remains an essential precondition for securing the Convention rights of all those within the territory, including the applicants themselves.

21 . The alleged lack of effort on the part of the Moldovan authorities since 1997 specifically directed to securing the Convention rights of the applicants is the third of the principal factors relied on by the first group. Complaint is made that, after the date of ratification, the efforts to secure the applicants ' rights “were not pursued with the firmness, determination and conviction required by the serious situation in which the applicants found themselves ” . It is said that, since that date, the measures taken by Moldova to secure the applicants ' rights have been confined to sending doctors to Transdniestria to examine them in prison, providing financial assistance to their families and intervening through Mr Sturza, with a view to securing their release.

22 . I find it difficult to understand this criticism in so far as it relates to the period from 1997 until 2001. Mr Moşanu gave evidence that the issue of the applicants was raised at OSCE meetings, at meetings with foreign States and at a meeting of the Inter-Parliamentary Union ( see Annex, § 249). The unchallenged evidence of Mr Sturza, the former Minister of Justice and Chairman of the C ommittee for N egotiations with Transdniestria, was that he had continued after 1997 to raise the question of the applicants ' release with the separatist authorities. It was following those negotiations that Mr Sturza went to Transdniestria in April 2001 to bring back to Chişinau the four applicants, whom he was deceived into believing would all be released ( see Annex, § 312) and, according to the evidence before the Court, it was at least in part as a result of these negotiations that Mr Ilaşcu was in fact released in the following month. Having regard to the fact that the Moldovan authorities still hoped at the time to secure the release of the other three applicants, unlike the first group, I do not find it in the least surprising that Mr Chevtsov was permitted to enter Moldova bringing Mr Ilaşcu with him “without being called to account in any real sense for [his] activities in the regime ' s service”.

23 . I can accordingly agree with the view of the second group of judges forming part of the majority that the responsibility of Moldova was not engaged in respect of any of the violations of the Convention found to have occurred prior to May 2001. The question remains whether such responsibility was engaged after that date.

(b) Responsibility after May 2001

24 . The conclusion of the second group that the responsibility of Moldova was engaged after May 2001 is not founded on any reduction since that date in the number of judicial measures intended to assert Moldovan authority in Transdniestria; on the contrary, according to the second group, the reduction in the number of measures is not to be seen as a renunciation on Moldova ' s part of attempts to exercise its jurisdiction in the region, regard being had to the fact that several of the measures tried by Moldova had been blocked by “ MRT ” reprisals in 2001 and 2002 ( see paragraph 344 of the judgment ). Instead, the reasoning of the second group is founded essentially on a claimed lack of evidence that since Mr Ilaşcu ' s release effective measures have been taken by the Moldovan authorities to put an end to the continuing infringements of the applicants ' Convention rights. It is said that, apart from Mr Sturza ' s evidence that the question of the applicants ' situation continued to be raised regularly by the Moldovan authorities in their dealings with the “ MRT ” regime, “the Court has no other information capable of justifying the conclusion that the Moldovan Government have been diligent with rega rd to the applicants ” ( see paragraph 348 of the judgment ).

25 . It is true that after May 2001 the negotiations with the representatives of the Transdniestrian administration and of the Russian Federation appear to have focus ed on reaching an overall settlement of the conflict rather than on the particular situation of the three applicants who remained in detention. Moreover, according to the evidence of Mr Sturza, after that date Mr Smirnov had refused any further meetings to discuss the issue of the remaining applicants ( see Annex, § 313). However, according to the uncontradicted evidence of the same witness, not only did the negotiations include the question of what was to be done about criminal sentences imposed by the Transdniestrian authorities in the previous ten years, but, as conceded in the judgment, he continued regularly to raise the issue of the release of the three applicants with h is Tiraspol counterpart in the C ommittee for N egotiations on Transdniestria ( see Annex, § 309).

26 . While acknowledging that these efforts were made, reliance is placed in the judgment on the fact that the question of the applicants ' situation was only raised orally and that the Court has not been informed of any overall plan for the settlement of the Transdniestrian conflict which deals with their situation ( see paragraph 348). It is also stated that there is no evidence before the Court of any approach by the Moldovan authorities to the Russian authorities aimed at obtaining the release of the remaining applicants ( see paragraph 349). While both points are true, I am wholly unpersuaded that the absence of such material serves to support the majority ' s conclusion that Moldova has failed to take sufficient, effective or appropriate measures to secure to the applicants their Convention rights. Still less am I able to accept that the evidence before the Court establishes any acquiescence on the part of the Moldovan authorities in the continued detention of three of the applicants.

27 . For these reasons, I have concluded that the applicants were at no material time within the “jurisdiction” of Moldova for the purposes of Article 1 of the Convention, that Moldova has not failed to discharge any obligation in respect of the applicants imposed by that Article and that the responsibility of Moldova is accordingly not engaged in respect of the violations of the Convention complained of by the applicants, whether before or after May 2001.

28 . It follows that I have not only voted against the finding that there has been a violation by Moldova of the Convention rights of any of the applicants , but also against the finding that Moldova should make payments to the applicants by way of just satisfaction. I have voted with the majority in respect of all other paragraphs of the operative part of the judgment (including the finding that Moldova failed to discharge its obligations under Article 34 of the Convention), save as to the award of compensation in paragraph 21 (c) in respect of non-pecuniary damage on account of the Russian Federation ' s failure to discharge its obligations under Article 34. In my view, even if such a failure is to be seen as “a violation of the Convention” for the purpose of Article 41 of the Convention so as to permit the award of just satisfaction, which I consider doubtful, I do not regard it as appropriate to make such an award in the present case.