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What happens after ECHR’ ruling? (Part I)

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Igor Botan / July 11, 2004
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Content of ECHR’s judgement

On July 8, European Court for Human Rights (ECHR) ruled on the “case of Ilascu and others v. Moldova and Russia” [1]. ECHR ruled that Russia and Moldova are guilty of violating provisions of the European Convention on Human Rights, in particular the right to freedom and prohibition of torture and inhuman or degrading treatment or punishment.

ECHR argued that “the only legitimate government of the Republic of Moldova under international law, did not exercise authority over part of its territory, namely that part which was under the effective control of the «MRT» (Moldovan Republic of Transdnistria). However, even in the absence of effective control over the Transdniestrian region, Moldova still had a positive obligation under Article 1 of the Convention to take the measures that it was in its power to take and were in accordance with international law to secure to the applicants the rights guaranteed by the Convention.”

As regards Russian Federation the Court found that “During the Moldovan conflict in 1991–92 forces of the former Fourteenth Army (which had owed allegiance to the USSR, the CIS and the Russian Federation in turn) stationed in Transdniestria, had fought with and on behalf of the Transdniestrian separatist forces. Large quantities of weapons from the stores of the Fourteenth Army had been voluntarily transferred to the separatists, who had also been able to seize possession of other weapons unopposed by Russian soldiers. In addition, throughout the clashes between the Moldovan authorities and the Transdniestrian separatists the Russian leaders had supported the separatist authorities by their political declarations.”

In this respect, as regards “case of Ilascu and others” the Court found that “between 2 and 4 June 1992 the applicants were arrested at their homes in Tiraspol by a number of people, some of whom were wearing uniforms bearing the insignia of the former USSR’s Fourteenth Army. They were accused of anti-Soviet activities and illegally combating the legitimate government of the State of Transdniestria, under the direction of the Moldovan Popular Front and Romania. They were also charged with a number of offences which included two murders. On 9 December 1993 the “Supreme Court of the MRT” sentenced Mr Ilascu to death and ordered the confiscation of his property. The other applicants were sentenced by the same court to terms of 12 to 15 years’ imprisonment, and their property was likewise ordered to be confiscated.”

In consequence, ECHR ruled that Republic of Moldova and Russian Federation were to pay for pecuniary and non-pecuniary damage to each applicant. Given that Ilie Ilascu and Alexandru Lesco had been released in May 2001 and June 2004 respectively, the Court also held that “Moldova and Russia were to take all the necessary steps to put an end to the arbitrary detention of the applicants still imprisoned and secure their immediate release.” The judgment is final as it was passed by the Grand Chamber.

Reaction of the Russian Federation

The same day ECHR issued its judgement Russian Ministry of Foreign Affairs issued a Statement [2] expressing “bewilderment at the inconsistency, contradictoriness, subjectivity and the obvious political engagement of the European Court of Human Rights in Strasbourg”.

The arguments cited by the Russian side resume to the following “under the Federal Law on Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols Thereto, the Russian Federation recognizes the jurisdiction of the Court as binding where presumed violations of the Convention and the Protocols took place after their entry into force for Russia. Whereas the instrument of ratification had been transmitted to the Secretary General of the Council of Europe on May 5, 1998, the «case of Ilascu» events occurred long before this date”. In addition, Russian authorities also cite “UN General Assembly Resolution 56/83 of December 12, 2001, thereby no act of a state is a violation of an international legal obligation unless this obligation binds this state during the commission of the act”.

In fact, Russian Federation accused the Court of using “double standards”, that is in the “case involving the bombings of Yugoslavia by the countries of the North Atlantic Alliance, the Court took up the defence of the NATO nations, using as a cover the principles of territorial jurisdiction, in the «case of Ilascu» the same Court employed in its interests the opposite principle of exterritorial jurisdiction, actually proceeding from the false premise that on the territory of Transdniestria jurisdiction is being exercised by the Russian Federation”.

Thereby, Russian authorities contest the very fact that ECHR did accept to examine the “case of Ilascu”, mentioning that it “occurred long before the entry of the Convention into force for Russia. This is also recognized in the ruling by the Court itself”.

The indignation expressed by the Russian authorities is best captured in the following statement “It is obvious to all, except the Court, that the continually diminishing presence of the several hundred Russian troops guarding storage facilities of military equipment left after the disintegration of the Soviet Union and performing peacekeeping functions based on the relevant agreement with Moldova can’t be an instrument of any “control” on a territory of almost 1 million inhabitants.” Yet another reason for indignation to Russian side is that the judgement “demands that Russia immediately release the applicants in prison, while any of our steps in this direction would be a gross interference in the internal affairs of the sovereign state of Moldova. This ruling is contrary to the United Nations Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, of December 9, 1981.”

It seems that Russian authorities deliberately neglect one of the well known facts. First of all ECHR’s judgement indeed mentions that the provisions of the Convention applied only to events subsequent to its entry into force in the Contracting States, with regard to Moldova on 12 September 1997 and with regard to Russia on 5 May 1998. Albeit Convention provisions have a binding jurisdiction where presumed violations of the Convention and the Protocols took place after their entry into force for Russia, these provisions also have a binding jurisdiction as regards consequences that occurred after the Convention enforcement.

Those facts are important because the application was lodged on June 14 1999, whereas on March 20, 2001 the Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber (Article 30 of the Convention). By a decision of Grand Chamber on 4 July 2001 the application was declared partly admissible. A delegation of the Court conducted an on-the-spot investigation in Chisinau and Tiraspol on March 10 -15, 2003.

Secondly, ECHR works on a precedent basis. In this respect, it is worth considering the case “Loizidu v. Turkey”. In March 1995 the Court accepted for examination the case on Turkey’s responsibility for actions undertaken by authorities on the occupied territory of North Cyprus. After that case, “jurisdiction” in the sense used in the Convention is not limited only to the territory of the Contracting State. Actually Contracting States are also hold responsible for the territories they control de facto, having the obligation to ensure either directly or by means of the administration they are controlling that the rights and liberties provided for in the Convention are observed on that territory.

Noteworthy, Court’s judgement on the “case of Ilascu” states that after 5 May 1998, when the Convention came into force with regard to Russia, in the security zone controlled by the Russian peacekeeping forces the “MRT” regime continued to deploy its troops illegally and to manufacture and sell weapons in breach of its undertakings to withdraw them completely taken at OSCE summits in 1999 and 2001. All of the above proved that the “MRT” remained under the effective authority, or at the very least under the decisive influence, of Russia, and in any event that it survived by virtue of the military, economic, financial and political support that Russia gave it.

Moreover, Court judgement reads than not only does Russia have a decisive influence on Transdniestrian authorities, it also has a decisive influence on Moldovan authorities. In this sense, the Court noted with concern the content of a note of April 2001 sent by Russia to the Moldovan authorities, from which it appeared that the Russian authorities had requested Moldova to withdraw the observations it had submitted to the Court in October 2000 in so far as these implied responsibility on the part of Russia on account of the fact that its troops were stationed in Moldovan territory, in Transdniestria. Consequently, at the hearing on 6 June 2001 the Moldovan Government had declared that it wished to withdraw the part of its observations concerning Russia. Such conduct on the part of the Russian Government represented a negation of the common heritage of political traditions, ideals, freedom and the rule of law mentioned in the Preamble to the Convention and were capable of seriously hindering the Court’s examination of an application lodged in exercise of the right of individual petition and thereby interfering with the right guaranteed by Article 34 of the Convention itself.

The very emotional reaction of the Russian authorities expressed in the said Declaration probably stems from the aforementioned findings of the Court. Indeed, when declining their responsibility for the “effective control” over Transdniestria, Russian authorities failed to mention that all of the Transdniestrian separatist elite are citizens of the Russian Federation and that Russian companies having the state as their main shareholder take part in the privatization of the public patrimony in Transdniestria, despite the fact that Moldovan authorities keep insisting that the latter is illegal. Moreover, Russia grants Russian citizenship to residents of Transdniestria in such a scale that quite soon they would account for the great majority of the population, as is the case of Abkhazia and South Osetia.

Finally, the way the Declaration ends definitely raises some eyebrows, namely Russia would fulfil “incorrect and politicized judgement” because it “has always fulfilled and will continue to fulfill its international obligations”.

What happens after ECHR’ ruling? (Part II)

  1. European Court of Human Rights — Grand Chamber Judgment in the case of Ilascu and others v. Moldova and Russia
  2. Concerning the Ruling of the European Court of Human Rights in Strasbourg on the “Case of Ilascu”
When would elections be held? What happens after ECHR’ ruling? (Part II)