DISSENTING OPINION OF JUDGE KOVLER

I regret to have to express my profound disagreement with the present judgment, as I did in the Grand Chamber’s Ilaşcu and Others v. Moldova and Russia judgment ([GC], no. 48787/99, 8 July 2004, ECHR 2004-VII).

The first point of my disagreement is the procedural issue. Unlike in many other “sensitive” cases, the Chamber decided on 30 September 2008 to examine the merits of the application at the same time as its admissibility, before the entry into force on 1 June 2010 of Protocol No. 14 amending Article 29 § 1 of the Convention. Even now the amended Article states: “The decision on admissibility may be taken separately”. In the less problematic Catan case the Chamber decided to separate these two issues ( Catan and Others v. Moldova and Russia (dec.), nos. 43370/04, 8252/05 and 18454/06, 15 June 2010).

The separate examination of the admissibility issue was particularly important in the present case. I find relevant both respondent Governments’ submissions concerning the Court’s competence ratione materiae to examine the present application (see §§ 69-72), the most important argument being the fact that the Committee of Ministers had not yet completed the procedure for the execution of the Court’s judgment in the Ilaşcu case. Interim Resolution 2007 (106) of the Committee of Ministers, to which the Chamber refers in justification of its decision (§ 94), suspended (underlined by me – A.K.) the examination of the Ilaşcu judgment, intending “to resume it after the final determination of the new application” by the Court. Thus, the Committee of Ministers never decided to terminate the examination.

The Chamber could have looked more carefully at previous cases in which the Court decided that complaints about the unsatisfactory execution of its judgments were outside its competence ratione materiae (in particular, Lyons and Others v. the United Kingdom (dec.), no. 15227/93, ECHR 2003-IX; Steck-Risch and Others v. Liechtenstein (dec.), no. 29061/08, 11 May 2010; Schelling v. Austria (dec.), no. 46128/07, 16 September 2010; and Kafkaris v. Cyprus (no.2) (dec.), no. 9644/09, 21 June 2011). Instead, the Chamber preferred to apply the dubious “new information” criterion (§ 86), placing a broad interpretation on its prerogatives under Article 32 of the Convention.

On this occasion I would refer to my statement in the dissenting opinion in the IlaÅŸcu case concerning the enforceable character of the judgment:

“I realise the objective impossibility for the second respondent State of enforcing the Court’s judgment to the letter, going over the head of sovereign Moldova, particularly in order to put an end to the applicants’ detention. (I voted “for” on point 22 of the operative provisions in the light of all the possible approaches.) It will be still more difficult to take general measures, as required by the Committee of Ministers of the Council of Europe. In Drozd and Janousek , the Court said: “The Convention does not require the Contracting Parties to impose its standards on third States or territories” ( Drozd and Janousek v. France and Spain , judgment of 26 June 1992, Series A no. 240, p. 34, § 110). When that is translated into the language of international law, it surely means that neither the Convention nor any other text requires signatory States to take counter-measures to end the detention of an alien in a foreign country – the United Nations Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States (Resolution 26/113 of 9 December 1981) is still in force.”

In my humble opinion the case is also inadmissible for abuse of the right of petition for a different reason than that used by the Moldovan Government (§ 70): one of the applicants’ representatives, Mr V. Nagavecschi, was the Moldovan Government Agent who in 1998-1999 executed the order of the former Minister of Justice of the Republic of Moldova “to bring an action to the ECHR on behalf of the Ilaşcu group” (see Interview with Mr. Paduraru, “Moldova Azi”, 12 October 2005 – the Chamber was informed about it) and who represented the Moldovan Government in the examination of the Ilaşcu case... (Strangely enough, the Grand Chamber’s judgment of 8 July 2004 does not mention in the Procedure part the names of both Respondent Governments’ representatives). To my regret, the Chamber did not pay any attention to this flagrant inconsistency.

The second point of my disagreement concerns the merits. I do not wish to repeat all my arguments in the dissenting opinion in the Ilaşcu judgment – unfortunately they are still relevant for me as the Chamber again applied the Loizidou test in a very different situation. I wish only to say that the presentation of the facts on which the Chamber based its conclusions on the merits is even more selective and subjective than in the Ilaşcu case. For example, in the interpretation of the Court’s judgment of 8 July 2004 by the present text one can read: “The Court noted that until 2001, the Moldovan authorities had taken various measures aimed at obtaining the applicant’s release and that as a result, Mr. Ilaşcu was released in May 2001” (§ 10). What is more interesting is that in the Ilaşcu judgment it is written in black and white: “After Mr. Ilaşcu’s release the representative of Mr. Leşco submitted in a letter received by the Court on 1 June 2001 that the release had been prompted by the Russian authorities’ intercession with the Transdniestrian authorities” (see, for more details, § 283 of the Ilaşcu judgment). Moreover, “At the hearing on 6 June 2001 the Moldovan Government thanked those who had contributed to Mr. Ilaşcu’s release, in particular the Russian Federation” (§ 284).

This “new presentation” of the facts reinforces the Chamber’s conclusions that only Moldova discharged its positive obligations to secure the release of the first two applicants (conclusion disputed by the Romanian Government – see § 104). The Chamber even reiterates the Ilaşcu judgment’s speculations about the possibilities of “a power such as the Russian Federation” and the “little that Moldova could do” (§ 108)! The measures of the Moldovan authorities as presented by the Moldovan Government were limited essentially to sending letters (§ 24). That was quite enough to convince the Chamber that there has been no failure on the part of Moldova to secure the rights guaranteed by the Convention (§ 111). Ironically, on the day of the adoption of the present judgment the mass media all over the world announced the liberation of the soldier G. Shalit thanks to over five years of efforts by the State of Israel to secure his liberation, using all possible means.

I leave aside the Chamber’s conclusions on “a continuous and uninterrupted link of responsibility on the part of the Russian Federation for the applicants’ fate” (§ 115), based on its “support” for the “MRT” regime. I am afraid that this linking of individual cases with global geo-strategic problems will become a kind of practice of the Court, with the danger that its role will mutate from that of a judicial body to that of a European Security Council.

In any case, J.-F. Flauss, an attentive observer of the Court’s case-law, has reasoned that “accepted historical reality does not appear to require any special protection under the Convention” (Flauss J.-F., “L’Histoire dans la jurisprudence de la Cour européenne des droits de l’homme”, Revue trimestrielle des droits de l’homme , 2006, no. 21-22, p. 17). And as I myself observed: “As to History, we must interpret it as objectively as possible without being its prisoner” (Kovler A., “La Cour devant l’Histoire, l’Histoire devant la Cour ou Comment la Cour européenne ‘juge’ l’Histoire”, La conscience des droits. Mélanges en l’honneur de Jean-Paul Costa , Dalloz, 2011, p.p. 341-352).

Unfortunately, seven years later the majority has followed the way of the interpretation of History traced by the first judgment of 8 July 2004, using the same conclusions with one exception – discharging one sovereign State of all its positive obligations towards its own citizens and charging another State with “an aggravated violation”. I find this truly worrying.

[1] The applicant’s name at the date of the judgment on 8 July 2004 was Petrov-Popa

[2] Interim Resolutions ResDH(2005)42 of 22 April 2005, ResDH(2005)84 of 13 July 2005 and ResDH(2006)11 of 1 March 2006.

[3] Interim Resolutions ResDH(2005)42 of 22 April 2005, ResDH(2005)84 of 13 July 2005, ResDH(2006)11 of 1 March 2006 and ResDH(2006)26 of 10 May 2006.

[4] Albania, Azerbaijan, Bosnia and Herzegovina, Croatia, Georgia, Iceland, Liechtenstein, Monaco, Norway, San Marino, Serbia, Switzerland, the “former Yugoslav Republic of Macedonia”, Turkey and Ukraine.