In the case of Catan and Others v. Moldova and Russia,
The European Court of Human Rights, sitting as a Grand Chamber composed
of:
Nicolas Bratza,
President,
Françoise Tulkens,
Josep Casadevall,
Nina Vajić,
Dean Spielmann,
Lech Garlicki,
Karel Jungwiert,
Anatoly Kovler,
Egbert Myjer,
David Thór Björgvinsson,
Ján Šikuta,
Mark Villiger,
Isabelle Berro-Lefčvre,
Mirjana Lazarova Trajkovska,
Ledi Bianku,
Mihai Poalelungi,
Helen Keller, judges,
and Michael O’Boyle, Registrar,
Having deliberated in private on 25 January and 5 September 2012,
Delivers the following judgment, which was adopted on the last-mentioned
date:
PROCEDURE
The case originated in three applications (nos.
43370/04, 8252/05 and 18454/06) against the Republic of Moldova and the Russian
Federation lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a
number of Moldovan nationals (“the applicants”), on 25 October 2004.
The applicants, one of whom was granted legal
aid, were represented by Mr Alexandru Postică and Mr Ion Manole,
lawyers practising in Chişinău and Mr Padraig Hughes and
Ms Helen Duffy, lawyers with Interights, a human rights organisation based
in London. The Government of the Republic of Moldova were represented by their
Agents, Mr Vladimir Grosu and Mr Lilian Apostol and the Government of
the Russian Federation were represented by Mr Georgy Matyushkin, Representative
of the Russian Federation at the European Court of Human Rights.
The applicants, Moldovans who lived in
Transdniestria and who were at the time of lodging the application pupils at
three Moldovan-language schools and their parents: (see the attached annex),
complained under Article 2 of Protocol No. 1 to the Convention and Article
8 of the Convention, taken alone and in conjunction with Article 14 about the
closure of their schools and their harassment by the separatist Transdniestrian
authorities.
The applications were allocated to the Fourth
Section of the Court (Rule 52 § 1 of the Rules of Court). On 15 June
2010, following a hearing on admissibility and the merits (Rule 54 § 3), they
were joined and declared partly admissible by a Chamber of that Section
composed of the following judges: N. Bratza, L. Garlicki, A. Kovler,
L. Mijović, D. Björgvinsson, J. Šikuta, M. Poalelungi,
and also of T.L. Early, Section Registrar. On 14 December 2010 the Chamber
relinquished jurisdiction in favour of the Grand Chamber, none of the parties
having objected to relinquishment (Article 30 of the Convention and Rule 72).
The composition of the Grand Chamber was
determined according to the provisions of Article 26 §§ 4 and 5 of the
Convention and Rule 24 of the Rules of Court.
The applicants and each respondent Government filed
further written observations (Rule 59 § 1) on the merits.
A hearing took place in public in the Human Rights Building, Strasbourg, on 25 January 2012 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government of
the Republic of Moldova
Mr V. Grosu, Agent,
Mr L. Apostol, Adviser;
(b) for the Government of the Russian Federation
Mr G. Matyushkin, Agent,
Ms O. Sirotkina,
Ms I. Korieva,
Ms A. Dzutseva,
Mr N. Fomin,
Ms M. Molodtsova,
Ms V. Utkina,
Mr A. Makhnev, Advisers;
(c) for the applicants
Mr P. Hughes,
Ms H. Duffy, Counsel,
Mr A. Postica,
Mr I. Manole,
Mr P. Postica, Advisers.
The Court heard addresses by Mr Hughes,
Mr A. Postica, Mr Grosu and Mr Matyushkin.
THE FACTS
I. THE CIRCUMSTANCES OF
THE CASE
A. The historical background
The country which subsequently became the
Republic of Moldova was created as the Moldavian Soviet Socialist Republic on
2 August 1940 from a part of Bessarabia and a strip of land on the eastern
bank of the Dniester (see further Tănase v. Moldova [GC], no. 7/08,
§§ 11-17, ECHR 2010-...). This eastern region, now known as Transdniestria, had
since 1924, together with a number of territories which are now part of
Ukraine, been part of the Moldavian Autonomous Soviet Socialist Republic. The
population of Transdniestria was originally composed principally of Ukrainians
and Moldovans/Romanians, but from the 1920s onwards it was subject to
significant immigration by industrial workers from elsewhere in the Soviet
Union, particularly Russians and Ukrainians. In a census organised by the
Soviet Union in 1989, the population of Transdniestria was assessed at 679,000, composed ethnically and linguistically of 40% Moldovan,
28% Ukrainian, 24% Russian and 8% others.
According to the 1978 Constitution of the
Moldavian Soviet Socialist Republic, there were two official languages: Russian
and “Moldavian” (Moldovan/Romanian written with the Cyrillic alphabet).
In August and September 1989 the Latin alphabet
was reintroduced in Moldova for written Moldovan/Romanian, which became the
first official language.
On 23 June 1990 Moldova proclaimed its
sovereignty; on 23 May 1991 it changed its name to the Republic of Moldova; and on 27 August 1991 the Moldovan parliament adopted the Declaration of Independence
of the Republic of Moldova, whose territory included Transdniestria.
B. The Transdniestrian
conflict
The facts concerning the armed conflict of
1991-1992 and the period up to late 2003 are set out in more detail in Ilaşcu
and Others v. Moldova and Russia [GC], no. 48787/99, §§ 28-183, ECHR 2004-VII
and only a summary of the key events is provided here for ease of reference. The
Court notes that in their observations the Russian Government submitted that
the facts concerning the armed conflict were not relevant to the issues arising
in present case.
From 1989 onwards, a movement of resistance to
Moldovan independence had been forming in Transdniestria. On 2 September 1990
Transdniestrian separatists announced the creation of the “Moldavian Republic of Transdniestria” (the “MRT”). On 25 August 1991 the “Supreme Council
of the MRT” adopted the “declaration of independence” of the “MRT”. On 1
December 1991 a “presidential election”, declared illegal by the Moldovan
authorities, was organised in the Transdniestrian provinces and Mr Igor Smirnov
claimed to have been elected “President of the MRT”. To date, the “MRT” has not
been recognised by the international community.
At the time of Moldova’s declaration of
independence, it did not have its own army. The USSR’s 14th Army, whose
headquarters had been in Chişinău since 1956, remained on Moldovan
territory, although from 1990 onwards equipment and personnel began to be
withdrawn. In 1991 the 14th Army in Moldova was composed of
several thousand soldiers, infantry units, artillery (notably an anti-aircraft
missile system), armoured vehicles and aircraft (including planes and strike
helicopters). It had a number of ammunition stores, including one of the
largest in Europe at Colbaşna in Transdniestria.
By Decree no. 234 of 14 November 1991 the
President of Moldova declared that ammunition, weapons, military transport,
military bases and other property belonging to the military units of the Soviet
armed forces stationed in Moldovan territory were the property of the Republic of Moldova. This decree was not given effect within Transdniestria.
By a decree dated 5 December 1991, Mr Smirnov decided
to place the military units of the 14th Army deployed in Transdniestria under
the command of “the National Defence and Security Department of the Moldavian Republic of Transdniestria”. Mr Smirnov appointed the Commander of the 14th Army,
Lieutenant-General Iakovlev, as head of the “TRM” “National Defence and
Security Department”. In December 1991 Lieutenant-General Iakovlev was arrested
by the Moldovan authorities, who accused him of helping the Transdniestrian
separatists to arm themselves by using the weapon stocks of the 14th Army.
However, he was subsequently released following the intercession of the
Government of the Russian Federation.
At the end of 1991 and the beginning of 1992
violent clashes broke out between the Transdniestrian separatist forces and the
Moldovan security forces, claiming the lives of several hundred people.
On 6 December 1991, in an appeal to the
international community and the United Nations Security Council, the Moldovan
Government protested against the occupation, on 3 December 1991, of the
Moldovan towns of Grigoriopol, Dubăsari, Slobozia, Tiraspol and
Ribniţa, situated on the left bank of the Dniester, by the 14th Army under
the command of Lieutenant-General Iakovlev. They accused the authorities of the
USSR, particularly the Ministry of Defence, of having prompted these acts.
The soldiers of the 14th Army were accused of distributing military
equipment to the Transdniestrian separatists and organising the separatists
into military detachments which were terrorising the civilian population.
In 1991-92 a number of 14th Army military units
joined the Transdniestrian separatists. In the Ilaşcu judgment the
Court found it established beyond reasonable doubt that Transdniestrian
separatists were able, with the assistance of 14th Army personnel, to arm
themselves with weapons taken from the stores of the 14th Army stationed in
Transdniestria. In addition, large numbers of Russian nationals from outside
the region, particularly Cossacks, went to Transdniestria to fight with the
separatists against the Moldovan forces. Given the support provided to the
separatists by the troops of the 14th Army and the massive transfer to them of
arms and ammunition from the 14th Army’s stores, the Moldovan army was in a
position of inferiority that prevented it from regaining control of Transdniestria.
On 1 April 1992 the President of the Russian Federation, Mr Boris Yeltsin,
officially transferred the 14th Army to Russian command, and it thereafter
became the “Russian Operational Group in the Transdniestrian region of Moldova” or “ROG”. On 2 April 1992 General Netkachev, the new Commander of the ROG ordered
the Moldovan forces which had encircled the town of Tighina (Bender), held by
the separatists, to withdraw immediately, failing which the Russian army would
take counter-measures. In May the ROG launched attacks against the Moldovan
forces, driving them out of some villages from the left bank of the Dniester. In June the ROG intervened officially in favour of the separatists who were
losing the city of Tighina, driving out the Moldovan forces.
C. The ceasefire agreement, the
1997 Memorandum and the Istanbul Commitments
On 21 July 1992 the President of the Republic of Moldova, Mr Mircea Snegur, and Mr Yeltsin signed an agreement on the
principles for the friendly settlement of the armed conflict in the
Transdniestrian region of the Republic of Moldova (“the ceasefire agreement”).
The agreement introduced the principle of a
security zone to be created by the withdrawal of the armies of the “parties to
the conflict” (Article 1 § 2). Under Article 2 of the agreement, a Joint
Control Commission (“the JCC”) was set up, composed of representatives of Moldova, the Russian Federation and Transdniestria, with its headquarters in Tighina. The agreement
also provided for a peacekeeping force charged with ensuring observance of the
ceasefire and security arrangements, composed of five Russian battalions, three
Moldovan battalions and two Transdniestrian battalions under the orders of a
joint military command structure which was itself subordinate to the JCC. Under
Article 3 of the agreement, the town of Tighina was declared a region subject
to a security regime and its administration was put in the hands of “local
organs of self-government, if necessary acting together with the control commission”.
The JCC was given the task of maintaining order in Tighina, together with the
police. Article 4 required Russian troops stationed in the territory of the Republic of Moldova, to remain strictly neutral. Article 5 prohibited sanctions or
blockades and laid down the objective of removing all obstacles to the free
movement of goods, services and persons. The measures provided for in the
agreement were defined as “a very important part of the settlement of the
conflict by political means” (Article 7).
On 29 July 1994 Moldova adopted a new Constitution. It provided, inter alia, that Moldova was
neutral, that it prohibited the stationing in its territory of troops belonging
to other States and that a form of autonomy might be granted to regions which
included some areas on the left bank of the Dniester. According to Article 13
of the Constitution, the national language was Moldovan, to be written using
the Latin alphabet.
On a number of occasions from 1995 onwards the
Moldovan authorities complained that ROG army personnel and the Russian contingent
of the JCC’s peace-keeping force had infringed the principle of neutrality set
out in the ceasefire agreement and that, inter alia, Transdniestrians
had been able to acquire further military equipment and assistance from the
ROG. These allegations were firmly denied by the Russian authorities. In
addition, the Moldovan delegation to the JCC alleged that the Transdniestrians
had created new military posts and customs checkpoints within the security
zone, in breach of the ceasefire agreement. In the Ilaşcu judgment
the Court found it established, by the evidence contained in the JCC’s official
documents, that in various areas of Transdniestria under the control of the
Russian peacekeeping forces, such as Tighina, the Transdniestrian separatist
forces were breaching the ceasefire agreement.
On 8 May 1997 in Moscow, Mr Petru Lucinschi, the
President of Moldova, and Mr Smirnov, the “President of the MRT”, signed a
memorandum laying down the basis for the normalisation of relations between the
Republic of Moldova and Transdniestria (“the 1997 Memorandum”). Under the
terms of the 1997 Memorandum, decisions concerning Transdniestria had to be
agreed by both sides, powers had to be shared and delegated and guarantees had
to be secured reciprocally. Transdniestria had to be allowed to participate in
the conduct of the foreign policy of the Republic of Moldova on questions
concerning its own interests to be defined by mutual agreement. Transdniestria
would have the right unilaterally to establish and maintain international
contacts in economic, scientific, technical, cultural and other fields, to be
determined by mutual agreement. The parties undertook to settle conflicts
through negotiation, with the assistance where necessary of the Russian Federation and Ukraine, as guarantors of compliance with the agreements reached, and of the Organisation
for Security and Cooperation in Europe (OSCE) and the Commonwealth of
Independent States (CIS). The 1997 Memorandum was countersigned by the representatives
of the guarantor States, namely Mr Yeltsin for the Russian Federation and Mr Leonid Kuchma for Ukraine, and by Mr Helveg Petersen, the President of the
OSCE.
In November 1999 the OSCE held its sixth summit
at Istanbul. During the summit, 54 Member States signed the Charter for
European Security and the Istanbul Summit Declaration and 30 Member States,
including Moldova and Russia, signed the Agreement on the Adaptation of the Treaty
on Conventional Armed Forces in Europe (“the adapted CFE treaty”). The adapted
CFE treaty set out, inter alia, the principle that foreign troops should
not be stationed in Moldovan territory without Moldovan consent. Russia’s
agreement to withdraw from Transdniestria (one of the “Istanbul Commitments”)
was set out in an Annex to the adapted CFE Final Act. In addition, the Istanbul
Summit Declaration, at paragraph 19, recorded inter alia the commitment
of the Russian Federation to withdraw its forces from Transdniestria by the end
of 2002:
“19. Recalling the decisions of the Budapest and Lisbon Summits
and Oslo Ministerial Meeting, we reiterate our expectation of an early, orderly
and complete withdrawal of Russian troops from Moldova. In this context, we
welcome the recent progress achieved in the removal and destruction of the
Russian military equipment stockpiled in the Trans-Dniestrian region of Moldova and the completion of the destruction of nontransportable ammunition.
We welcome the commitment by the Russian Federation to complete
withdrawal of the Russian forces from the territory of Moldova by the end of
2002. We also welcome the willingness of the Republic of Moldova and of the
OSCE to facilitate this process, within their respective abilities, by the
agreed deadline.
We recall that an international assessment mission is ready to
be dispatched without delay to explore removal and destruction of Russian
ammunition and armaments. With the purpose of securing the process of
withdrawal and destruction, we will instruct the Permanent Council to consider
the expansion of the mandate of the OSCE Mission to Moldova in terms of
ensuring transparency of this process and co-ordination of financial and
technical assistance offered to facilitate withdrawal and destruction.
Furthermore, we agree to consider the establishment of a fund for voluntary
international financial assistance to be administered by the OSCE.”
In 2002, during an OSCE Ministerial Conference in Lisbon, Russia was granted a one-year extension for the removal of troops, up until the end
of December 2003.
Russia did not comply with the commitments given
at the OSCE Istanbul Summit and Lisbon Ministerial Conference to withdraw
militarily from Transdniestria before the end of 2003. At the OSCE Ministerial
Council in December 2003, it was impossible to reach a common position on
Transdniestria, and the published statement recorded that:
“Most Ministers noted the efforts made by the Russian Federation to fulfil the commitments undertaken at the OSCE Istanbul Summit in 1999 to
complete the withdrawal of Russian forces from the territory of Moldova. They noted that concrete progress was achieved in 2003 on the withdrawal/disposal of
some ammunition and other military equipment belonging to the Russian Federation. They appreciated the efforts of all participating States of the OSCE that have
contributed to the Voluntary Fund established to support this effort. They
were, however, deeply concerned that the withdrawal of the Russian forces will
not be completed by 31 December 2003. They stressed the need for the fulfilment
of this commitment without further delay.”
The Member States of the North Atlantic Treaty Organisation
(NATO) have refused to ratify the adapted CFE until Russia has complied with
the Istanbul Commitments.
D. The “Kozak Memorandum”
In 2001, the Communist Party were successful in
elections and became the governing Party in Moldova. The new President of Moldova,
Mr Vladimir Voronin, entered into direct negotiation with Russia over the future of Transdniestria. In November 2003, the Russian Federation put forward a
settlement proposal, the “Memorandum on the Basic Principles of the State
Structure of the United State” (referred to as the “Kozak Memorandum”, after
the Russian politician, Mr Dimitry Kozak, who worked on it). The Kozak
Memorandum proposed a new federal structure for Moldova, under which the
authorities of the “MRT” would have had a substantial degree of autonomy and
guaranteed representation in the new “federal legislature”. The Kozak
Memorandum included transitional provisions under which, until 2015, a
three-quarters majority in a newly created legislative second chamber, composed
of four representatives from Gagauzia, nine from Transdniestria and 13 from the
new federal legislature’s first chamber, would have been required to confirm
federal organic laws. This would have given the “MRT” representatives in the
second chamber an effective veto over any legislation affecting all of Moldova until 2015. On 25 November 2003, having previously indicated his willingness to
accept these proposals, Mr Voronin decided not to sign the Kozak Memorandum.
E. Enhanced border and customs
controls
In December 2005, a European Union Border
Assistance Mission was established to help combat illegal trade between Ukraine and Moldova. In March 2006 Ukraine and Moldova began implementing a 2003 customs agreement
under which Transdniestrian companies engaged in cross-border trade had to
register in Chişinău in order to be issued documents indicating the
goods’ country of origin, in accordance with World Trade Organisation
protocols. Ukraine undertook to refuse to permit goods without such export
documents to pass across its border.
In what was seen as a response to these new
customs measures, Transdniestrian representatives refused to continue with the
5+2 talks. Furthermore, in February and March 2005, “in response to the course
of action taken by the Moldovan Government aimed at worsening the situation
around Transdniestria”, the Russian Duma adopted resolutions asking the Russian
Government to introduce an import ban on Moldovan alcohol and tobacco products;
to export energy to Moldova (except Transdniestria) at international rates; and
to require visas for Moldovan nationals visiting Russia, except residents of
Transdniestria.
In April 2005 the Russian authorities banned
imports of meat products, fruits and vegetables from Moldova, on the ground
that domestic hygiene standards had not been complied with in the production of
these products. Between March 2006 and November 2007 a ban was placed on
importation of Moldovan wine. The International Monetary Fund found that these
measures had a combined negative effect on Moldova’s economic growth of 2-3%
annually in 2006-2007.
In January 2005 Mr Viktor Yushchenko was elected
President in Ukraine. In May 2005 the Ukrainian Government introduced a new proposal
for the resolution of the Transdniestrian conflict, “Towards a Settlement
through Democratization” (summarized in the report of the Parliamentary
Assembly of the Council of Europe: see paragraph 64 below). In July 2005,
citing the Ukrainian plan, the Moldovan parliament adopted a law, “On the Basic
Principles of a Special Legal Status of Transdniestria”. Formal negotiations
resumed in October 2005, with the European Union (“EU”) and the United States of America participating as observers (referred to as “the 5+2 talks”).
F. Russian military equipment
and personnel in Transdniestria
On 20 March 1998 an agreement concerning the
military assets of the ROG was signed in Odessa by Mr Viktor Chernomyrdin, the
Prime Minister of the Russian Federation, and Mr Smirnov, “President of the
MRT”. According to the timetable annexed to the agreement, the withdrawal and
decommissioning of certain stocks, to be disposed of by explosion or other
mechanical process, was to be completed by 31 December 2001. The
withdrawal (transfer and decommissioning) of surplus ammunition and other Russian
military equipment and personnel not forming part of the peacekeeping forces
was planned to take place by 31 December 2002 at the latest. A
number of trainloads of Russian military equipment left Transdniestria between
1999 and 2002.
In October 2001 the Russian Federation and the
“MRT” signed a further agreement on the withdrawal of the Russian forces. Under
that agreement, in compensation for the withdrawal of part of the Russian
military equipment stationed in Transdniestria, the “MRT” was granted a
reduction of one hundred million United States dollars (USD) in its debt for
gas imported from the Russian Federation, and the transfer to it by the Russian
Army of part of its equipment capable of being put to civilian use.
According to an OSCE press release, 29 railway
wagons carrying bridge-building equipment and field kitchens were removed from Colbaşna
by the Russian authorities on 24 December 2002. The same press release
quoted a declaration by the Commander of the ROG, General Boris Sergeyev, to
the effect that the latest withdrawals had been made possible by an agreement
with the Transdniestrians under which the “MRT” was to receive half of the
non-military equipment and supplies withdrawn. General Sergeyev cited the
example of the withdrawal, on 16 December 2002, of 77 lorries, which had been
followed by the transfer of 77 Russian military lorries to the
Transdniestrians.
According to the evidence heard by the Court in
the Ilaşcu case, in 2003 at least 200,000 tonnes of Russian arms
and ammunition remained in Transdniestria, mainly at Colbaşna, together
with 106 battle tanks, 42 armoured cars, 109 armoured personnel carriers, 54
armoured reconnaissance vehicles, 123 cannons and mortars, 206 anti-tank
weapons, 226 anti-aircraft guns, nine helicopters and 1,648 vehicles of various
kinds (see the Ilaşcu judgment, cited above, § 131). In
2003, the OSCE observed and verified the withdrawal from Transdniestria of 11
trains of Russian military equipment and 31 trains loaded with more than 15,000
tons of ammunition. However, the following year, in 2004, the OSCE reported
that only one train containing approximately 1,000 tons of ammunition had been
removed.
Since 2004 there have been no verified
withdrawals of any Russian arms or equipment from Transdniestria. The
Court found in Ilaşcu that, at the end of 2004, approximately
21,000 metric tons of ammunition remained, together with more than 40,000 small
arms and light weapons and approximately ten trainloads of miscellaneous
military equipment. In November 2006, a delegation from the OSCE were allowed
access to the ammunition stores and reported that over 21,000 tons of
ammunition remained stored there (see paragraph 68 below). The Commander
of the ROG reported in May 2005 that surplus stocks of 40,000 small arms and
light weapons had been destroyed, but no independent observer was allowed
access in order to verify these claims. In their observations in the present
case, the Russian Government submitted that most of the weapons, ammunition and
military property were removed between 1991 and 2003 and that all that remained
in the warehouses were shells, hand grenades, mortar bombs and small-arms
ammunition.
The parties to the present case agreed that approximately
1,000 Russian servicemen were stationed in Transdniestria to guard the arms
store. In addition, the parties agreed that there were approximately 1,125
Russian soldiers stationed in the Security Area as part of the internationally
agreed peace-keeping force. The Security Area was 225 km long and 12-20 km
wide.
G. Alleged Russian economic
and political support for the “MRT”
Again, it should be noted that the Russian
Government contended that events in Transdniestria prior to the schools crisis
were not relevant to the issues in the present case.
In the Ilaşcu judgment the Court
found it uncontested that the arms industry, which was one of the pillars of
the Transdniestrian economy, was directly supported by Russian firms including
the Rosvoorouzhenie (Росвооружение)
and Elektrommash companies. The Russian firm Iterra had bought the largest
undertaking in Transdniestria, the Râbniţa engineering works, despite the
opposition of the Moldovan authorities. In addition, the Russian Army
constituted a major employer and purchaser of supplies in Transdniestria.
According to the applicants in the present case,
Russia accounted for 18% of the “MRT”‘s exports and 43.7% of its imports,
primarily energy. The “MRT” paid for less than 5% of the gas it had consumed. For
example, in 2011 Transdniestria consumed USD 505 million worth of gas, but paid
for only 4% (USD 20 million). The Russian Government explained that
since the “MRT” was not recognised as a separate entity under international
law, it could not have its own sovereign debts and Russia did not effect
separate gas supplies for Moldova and Transdniestria. The bill for supplying
gas to Transdniestria was, therefore, attributed to Moldova. The supply of gas
to the region was organised through the Russian public corporation Gazprom and
the joint stock company Moldovagaz, which was owned jointly by Moldova and the “MRT”. The debt owed by Moldovagaz to Russia exceeded USD 1.8 billion, of
which USD 1.5 billion related to gas consumed in Transdniestria. Gazprom could
not simply refuse to supply gas to the region, since it needed pipelines
through Moldova to supply the Balkan States.
The applicants further alleged that Russia provided direct humanitarian aid to Transdniestria, mostly in the form of
contributions to old-age pensions. The applicants claimed that official Russian
sources stated that between 2007 and 2010 the total volume of financial
assistance to Transdniestria was USD 55 million. The Moldovan Government
submitted that in 2011 the “MRT” received financial aid from Russia totalling USD 20.64 million. The Russian Government submitted that the amount of aid
given to Russian citizens living in the region for humanitarian purposes, such
as the payment of pensions and assistance with catering in schools, prisons and
hospitals, was fully transparent, and could be compared with humanitarian aid
provided by the European Union. As well as providing aid to the population
living in Transdniestria, Russia provided aid to those living in other parts of
Moldova.
In addition, the applicants claimed that some
120,000 individuals living in Transdniestria had been granted Russian
citizenship. These included many of the “MRT” leaders. The Court considers that
this should be put in the context of the findings of a census carried out in
2004 by the “MRT Government”, which found, in the area under their control, a
population of 555,347 people, approximately 32% of whom came from
the Moldovan community, 30% of whom were Russian and 29% were Ukrainian, with
small percentages of other national and ethnic groups.
H. The schools crisis and the
facts concerning the applicants’ cases
According to Article 12 of the MRT
“Constitution”, the official languages within the MRT are “Moldavian”, Russian
and Ukrainian. Article 6 of the “MRT Law on languages”, which was adopted
on 8 September 1992, states that, for all purposes, “Moldavian” must be
written with the Cyrillic alphabet. The “law” provides further that use of the
Latin alphabet may amount to an offence and Article 200-3 of the “MRT Code of
Administrative Offences”, adopted on 19 July 2002, states that:
“Failure by persons holding public office and other persons in
the executive and State administration, in public associations, as well as in
other organisations, regardless of their legal status and form of ownership,
and in other entities, situated on the territory of the MRT, to observe MRT’s
legislation on the functioning of languages on the territory of MRT ... entails
liability in the form of a fine which may amount to 50 (fifty) minimal
salaries.”
On 18 August 1994 the “MRT” authorities forbade
the use of the Latin script in schools. By a decision of 21 May 1999, the “MRT”
ordered that all schools belonging to “foreign States” and functioning on “its”
territory had to register with the “MRT” authorities, failing which they would
not be recognised and would be deprived of their rights.
On 14 July 2004 the “MRT” authorities began
taking steps to close down all schools using the Latin script. At the date of
adoption of the admissibility decision, there remained only six schools in
Transdniestria using the Moldovan/Romanian language and the Latin script.
1. Catan and Others (application no. 43370/04)
The applicants are 18 children who were studying
at Evrica School in Rîbniţa during the period in question and 13
parents (see the annex to this judgment).
From 1997 Evrica School used premises situated
on Gagarin Street built with Moldovan public funds. The school was registered
with the Moldovan Ministry of Education and was using the Latin script and a
curriculum approved by that Ministry.
Following the “MRT decision” of 21 May 1999 (see
paragraph 44 above), Evrika School refused to register, since registration
would require it to use the Cyrillic script and the curriculum devised by the
“MRT” regime. On 26 February 2004 the building used by the school was
transferred by the “MRT” authorities to the “Rîbniţa Department of
Education”. In July 2004, following a number of closures of Latin-script
schools within the “MRT”, the pupils, parents and teachers of Evrika School took it upon themselves to guard the school day and night. On 29 July 2004 Transdniestrian
police stormed the school and evicted the women and children who were inside
it. Over the following days local police and officials from the “Rîbniţa
Department of Education” visited the parents of children registered with the
school, asking them to withdraw their children from the school and to put them
in a school registered with the “MRT” regime. The parents were allegedly told
that if they did not do so, they would be fired from their jobs and would even
be deprived of their parental rights. As a result of this pressure, many
parents withdrew their children and transferred them to another school.
On 29 September 2004, and following the
intervention of the OSCE Mission to Moldova, the school was able to register
with the “Tiraspol Chamber of Registration” as a foreign institution of private
education, but could not resume its activity for lack of premises. On 2 October
2004 the “MRT” regime allowed the school to reopen in another building, which
had previously housed a kindergarten. The building is rented from the “MRT” and
the Moldovan Government has paid for it to be refurbished. The school’s
repeated requests to be allowed to return to the building situated on Gagarin Street, which is bigger and more appropriate, were rejected on the ground that
another school was now using that building. The applicants allege that the
rented premises are inappropriate for a secondary school, in that the lighting,
corridors and classrooms are not fully adapted and there are no laboratories or
sports facilities. The school is administered by the Moldovan Ministry of
Education, which pays the teachers’ salaries and provides educational material.
It uses the Latin alphabet and a Moldovan curriculum.
The applicants filed a number of petitions and
complaints with the authorities of the Russian Federation. The Ministry of
Foreign Affairs of the Russian Federation replied by making public general
statements about the escalation of the conflict around the Moldovan/Romanian-language
schools in Transdniestria. Stating that the underlying problem was the ongoing
conflict between Moldova and the “MRT”, the Russian Ministry of Foreign Affairs
drew the attention of Moldova and the “MRT” to the fact that the use of force
to solve the conflict could endanger security in the region and urged them to
use various types of negotiations in order to solve the conflict. The
applicants also complained about their situation to the Moldovan authorities.
The school became the target of a systematic
campaign of vandalism, including broken windows. The applicants allege that
this campaign started in 2004; the Moldovan Government claim that it started in
the autumn of 2007. On 10 April 2008 the Moldovan Ministry of Reintegration
asked the Special Representative of the Secretary General of the Council of
Europe to intervene to try and bring an end to the attacks. The applicants also
allege that the children were intimidated by the local Russian-speaking population
and were afraid to speak Moldovan outside the school.
On 16 July 2008 the Moldovan Ministry of
Reintegration sought the assistance of the OSCE Mission to Moldova in transporting educational and construction material and money for teachers’ salaries
across the “border” with the “MRT”.
There were 683 pupils at the school during the
academic year 2002-2003. During the year 2008-2009 that number had fallen
to 345.
2. Caldare and Others (application no. 8252/05)
The applicants are 26 children who were studying
at Alexandru cel Bun School in Tighina, Bender during the period in question
and 17 parents, (see the annex). The school had been using premises situated on
Kosmodemianskaia Street built with Moldovan public funds and rented for it by
the Moldovan authorities. The school was registered with the Moldovan Ministry
of Education and was therefore using the Latin script and a curriculum approved
by the Ministry of Education.
On 4 June 2004, the “MRT Ministry for Education”
warned the school that it would be closed down if it did not register with
them, and that disciplinary measures would be taken against the head
teacher. On 18 July 2004 the school was disconnected from electricity and
water supplies and on 19 July 2004 the school administration was notified that
it could no longer use the premises on Kosmodemianskaia Street. However,
teachers, pupils and parents occupied the building, refusing to leave.
Transdniestrian police tried unsuccessfully to reoccupy the premises, and
eventually surrendered the building. They withdrew on 28 July 2004. On 20
September 2004, and following various negotiations with international observers,
including representatives of the Council of Europe, the school was reconnected
to water and electricity.
The “MRT” regime allowed the school to reopen in
September 2004, but in different premises, rented from the “MRT” authorities.
The school is currently using three buildings, located in separate districts of
the town. The main building has no cafeteria, science or sports facilities and
cannot be reached by public transport. The Moldovan Government provided the
school with a bus and computers. They also paid for the refurbishment of the
sanitary facilities in one of the buildings.
The applicants have filed a number of petitions
and complaints with the Russian and Moldovan authorities.
There were 1751 pupils at the school in
2002-2003 and 901 in 2008-2009.
3. Cercavschi and Others (application no. 18454/06)
The applicants are 46 children who were studying
at the Ştefan cel Mare School in Grigoriopol during the relevant period
and 50 parents (see the attached annex).
In 1996, at the request of the parents and their
children, the school, which was using a Cyrillic alphabet curriculum, filed a
number of petitions with the “MRT” regime requesting to be allowed to use the
Latin script. As a result, between 1996 and 2002, the “MRT” orchestrated a
campaign of hostile press reports, intimidation and threats by security
forces. These measures reached a climax on 22 August 2002 when Transdniestrian police stormed the school and evicted the teachers, the pupils and their
parents who were inside it. On 28 August 2002 the President of the Pupils
Committee was arrested and subsequently sentenced to fifteen days’
administrative imprisonment. Following these incidents, 300 pupils left the
school.
Faced with the occupation of the building by the
“MRT” regime, the Moldovan Ministry of Education decided that the school should
be transferred temporarily to a building in Doroţcaia, a village about
20 kilometres from Grigoripol and which is under Moldovan control. Each
day, pupils and teachers were taken to Doroţcaia in buses provided by the
Moldovan Government. They were subjected to bag searches and identity checks by
“MRT” officials and also, allegedly, acts of harassment such as spitting and
verbal abuse.
Representatives of the school filed a number of
petitions and complained about this situation to the OSCE, the United Nations
Organisation, as well as to the Russian and Moldovan authorities. The Russian
authorities replied by urging both Moldova and “MRT” to use various types of
negotiations in order to solve the conflict. The Moldovan authorities informed
the applicants that they could do nothing further to help.
There were 709 pupils at the school in 2000-2001
and 169 in 2008-2009.
II. REPORTS OF
INTER-GOVERNMENTAL AND NON-GOVERNMENTAL ORGANISATIONS
A. The Parliamentary Assembly of the Council of
Europe
On 16 September 2005 the Committee on the
Honouring of Obligations and Commitments by Member States of the Council of
Europe (Monitoring Committee) of the Parliamentary Assembly of the Council of
Europe (PACE) issued a report on “The functioning of the democratic
Institutions in Moldova”. The section devoted to Transdniestria reads as
follows:
“31. Major new developments have occurred during the last
months which the Assembly has to follow very closely and accompany in the best
possible way.
32. Following intense diplomatic contacts between Moldova and Ukraine, at the GUAM Summit in Chisinau on 22 April the Ukrainian President Yushchenko
announced a 7-point initiative to settle the Transnistrian issue. ...
The main thrust of this new plan is to achieve a long-lasting
solution through the democratisation of Transnistria. This would entail:
- the creation of conditions for the development of democracy,
civil society, and a multi-party system in Transnistria;
- holding of free and democratic elections to the
Transniestrian Supreme Soviet, monitored by the European Union, the OSCE, the
Council of Europe, Russia, United States, and other democratic countries
including Ukraine;
- the transformation of the current format of peacekeeping
operation into an international mission of military and civil observers under
the aegis of the OSCE and the expansion of the number of Ukrainian military
observers in the region;
- admission by Transniestrian authorities of an international
monitoring mission, to include Ukrainian experts, to military-industrial
enterprises in the Transniestrian region;
- a short-term OSCE monitoring mission in Ukraine to verify the movement of goods and persons through the Ukrainian-Moldovan border.
33. The full text of the Ukrainian plan was presented on 16-17
May at a meeting of the representatives of the mediators and Moldova and Transnistria in Vinnitsa, Ukraine after the Ukrainian Secretary of Security Council
Pyotr Poroshenko and Moldavian presidential aide Mark Tkachuk spent almost a
month doing ‘shuttle diplomacy’.
34. The reactions were varied but cautiously positive.
35. On 10 June the Moldovan Parliament adopted a ‘Declaration
on the Ukrainian initiative of settlement of the Transnistrian conflict’ as
well as two appeals, on demilitarisation and on promoting the criteria of
democratisation of the Transnistrian region of the Republic of Moldova ....
36. The declaration welcomed the initiative of President
Yushchenko, hoping that it would become ‘a major factor in the achievement by Moldova of its territorial and civil unity’. The parliament however regretted that the
Ukrainian initiative did not reflect some important principles of settlement,
in the first place the withdrawal of Russian troops; demilitarisation; the
principles and conditions of the region’s democratisation and the establishing
of a transparent and legal control over the Transnistrian segment of the
Moldovan-Ukrainian border. It called for additional efforts by the
international community and Ukraine in this respect.
37. The parliament also criticised a number of provisions which
might ‘infringe upon the sovereignty of the Republic of Moldova’, such as the
co-participation of Transnistria in the conduct of foreign policy of the
Republic of Moldova and the proposal to create the so-called conciliation
committee. The Parliament insisted on resolving the conflict within the
framework of the Moldovan Constitution through dialogue with a new,
democratically elected, Transnistrian leadership. There are thus a number of
divergences between the Ukrainian initiative and the approach to implementing
it chosen by Moldova.
38. The mediators in the Transnistrian conflict (the OSCE, Russia and Ukraine) stated that the plan provided a concrete impetus toward achieving a settlement.
At all of their latest meetings they called for resuming direct, continuing
dialogue on resolution of the conflict.
39. More delicate is the position of Russia. It is clear that
through its military and economic presence and thanks to the strong cultural
and linguistic links with Transnistria, Russia would like to retain its strong
influence over the territory. The press recently reported the existence of an ‘Action
plan of retaining Russian influence in the Moldova Republic’, details of which
are kept secret. Russia is still strongly attached to the so-called ‘Kozak
Memorandum’ of 2003, which proposed to Moldova a federal solution. Moldova had nearly accepted the plan; it refused to sign it at the last moment, allegedly
under Western influence.
40. Over the last months, there have been several signs of
tension. For instance, on 18 February the Russian Federation State Duma adopted
with a large majority a resolution requesting from the Russian government a
number of economic and other sanctions against Moldova, with the exclusion of
Transnistria, if the Moldovan authorities did not change their ‘economic
blockade of Transdniestria.’ The sanctions included a ban on imports of
Moldovan alcohol and tobacco, world market prices for exports of Russian
natural gas to Moldova and visas for Moldovans entering Russia.
41. Both appeals adopted by the Moldovan parliament called on
the Council of Europe for support and, concerning the democratisation of
Transnistria, to engage actively in the process. During our visit in Chisinau
our interlocutors repeatedly stressed the importance they attached to the
expertise and experience of our organisation in this respect. The documents
adopted by the Moldovan Parliament were officially submitted by its Speaker to
the Monitoring Committee ‘for examination in the framework of the Moldova’s
monitoring exercise’ and for ‘analysis, comments and recommendations, as well
as ideas of the Parliamentary Assembly that could contribute to the
democratisation of the Transnistrian region and final settlement of the
conflict’.
42. At the first sight, the plan should be followed closely by
the Council of Europe, as the leading organisation in the field of democracy,
human rights and rule of law. The Committee has therefore entrusted us with the
responsibility of visiting Kiev, Moscow, Bucharest and Brussels in order to
meet the main figures responsible for the Ukrainian plan and get acquainted
with all its details. On the basis of this information we will make specific
proposals for the Assembly to play an effective part in the plan’s progress.
43. A number of questions remain about the implementation of
the Ukrainian plan and the conditions set by the Moldovan parliament. However,
against the background of all the failed diplomatic attempts, it has one strong
advantage. It combines diplomatic efforts with specific measures for
democratisation, in Transnistria but also in Moldova, which must serve as an
example. The initiative also comes at the right moment, as it coincides with a
major strive for democratisation and European integration in the entire region.
44. Not only Moldova, whose territorial integrity and
sovereignty have been violated, but Europe as a whole can no longer afford to
have this ‘black hole’ on its territory. Transnistria is a centre of all kinds
of illicit trade and, in the first place arms trafficking and all forms of
smuggling. Political life continues to be dominated by the secret police;
fundamental freedom and liberties are curtailed.
45. One of the most difficult elements appears to be the
possibility to organise democratic elections in Transnistria. For this the
region needs to have freely functioning political parties, media and civil
society. The 27 March local elections in Transnistria (to elect village,
settlement, city and district councils, as well as the chairmen of village and
settlement councils) showed that real strong opposition is still missing. These
elections by the way were considered as a test for the scheduled December 2005
elections for the Transnistrian Supreme Soviet.
46. However, there are some interesting developments,
especially concerning a group of Supreme Soviet members led by the Deputy
Speaker Evgeny Shevchuk.
On 29 April this group initiated ambitious draft changes to the Transnistrian ‘constitution’
aiming at reinforcing this ‘parliament’’s role vis-ŕ-vis the ‘president’ and
the executive - for instance by granting it the right to a no-confidence vote
on ‘ministers’ and other officials appointed by the ‘president’, or the right
to control the work and the spending of the executive. Some more modest
changes, as well as a draft law on local administration, stipulating that the
chairmen of raion [district] and city councils have to be elected by the
councils by secret vote, were adopted on 18 May at first reading.
Mr Shevchuk is also promoting a legislative initiate to transform the
regional official ‘TV PMR’ into a public broadcasting institution.
47. On 22 June the Supreme Soviet recommended that ‘president’
Smirnov dismiss the ‘minister’ of justice Victor Balala. Balala, who is one the
closest allies of the ‘president’, recently decided to transfer registration
functions from his ‘ministry’ to a quasi-commercial ‘chamber of experts.’
48. On 22 July the Moldovan parliament approved in two readings
the Law on the Main Provisions of a Special Legal Status for Populated Areas on
the Left Bank of Dniestr (Transnistria). The law established an autonomous
territorial unit which is an inseparable part of Moldova and - within the
plenary powers established under the Constitution and legislation of Moldova - decides on questions within its jurisdiction. The law stipulates that populated
localities on the left bank of the Dniester may join Transnistria or secede
from it on the basis of local referenda and in conformity with the Moldovan
legislation.”
In the light of this report, PACE adopted a
resolution in which it resolved, inter alia, that:
“10. The Assembly welcomes the resumption of negotiations
following Ukraine’s optimistic initiative of settling the Transnistrian
conflict by giving priority to democratisation. It hopes that the current
five-member format, involving Moldova, the Transnistrian region, Russia, Ukraine and the OSCE, will be extended to include also the Council of Europe. It emphasises
the need for effective supervision of the border between Moldova and Ukraine, arms stocks and the production of armaments factories. Given their accumulated
expertise, the Assembly wishes its rapporteurs to be associated with all these
developments.
11. Any settlement of the Transnistrian conflict must be based
on the inviolable principle of full respect for Moldova’s territorial integrity
and sovereignty. In accordance with the rule of law, any solution must accord
with the popular will as expressed in fully free and democratic elections run
by internationally recognised authorities.”
B. The Organisation for Security and
Co-operation in Europe (OSCE)
In its Annual Report for 2004, the OSCE referred
to events in Transdniestria as follows:
“...The most disruptive development, however, was the
Transdniestrian decision in mid-July to close the Moldovan schools in
Transdniestrian territory teaching in Latin script. In response, the Moldovan
side suspended its participation in the five-sided political settlement
negotiations.
Together with co-mediators from the Russian Federation and Ukraine, the Mission went to extraordinary lengths from mid-July well into autumn to ameliorate the
school crisis and to find and implement a solution. The Mission also sought to
defuse tensions between the sides concerning freedom of movement, farmlands,
and railways.”
In 2004 the OSCE also observed that:
“Only one train containing approximately 1,000 tons of
ammunition was removed from the Operative Group of Russian Forces depots in
Transdniestria in 2004. Approximately 21,000 metric tons of ammunition remain
to be removed, together with more than 40,000 small arms and light weapons and
approximately ten trainloads of miscellaneous military equipment. The Mission continued to co-ordinate technical and financial assistance to the Russian Federation for these activities.”
The 2005 Annual
Report stated:
“The Mission concentrated its
efforts on restarting the political settlement negotiations, stalled since
summer 2004. The mediators from the Russian Federation, Ukraine, and the OSCE held consultations with representatives from Chisinau and Tiraspol in January,
May and September. At the May meeting, Ukraine introduced President Victor
Yushchenko’s settlement plan, Toward a Settlement through Democratization. This
initiative envisages democratization of the Transdniestrian region through
internationally conducted elections to the regional legislative body, along
with steps to promote demilitarization, transparency and increased confidence.
In July, the Moldovan Parliament, citing the Ukrainian Plan,
adopted a law On the Basic Principles of a Special Legal Status of
Transdniestria. During consultations in September in Odessa, Chisinau and Tiraspol agreed to invite the EU and US to participate as observers in the negotiations.
Formal negotiations resumed in an enlarged format in October after a 15-month
break and continued in December following the OSCE Ministerial Council in Ljubljana. On 15 December, the Presidents of Ukraine and the Russian Federation, Victor
Yushchenko and Vladimir Putin, issued a Joint Statement welcoming the
resumption of negotiations on the settlement of the Transdniestrian conflict.
In September, Presidents Voronin and Yushchenko jointly
requested the OSCE Chairman-in-Office to consider sending an International
Assessment Mission (IAM) to analyse democratic conditions in Transdniestria and
necessary steps for conducting democratic elections in the region. In parallel,
the OSCE Mission conducted technical consultations and analyses on basic
requirements for democratic elections in the Transdniestrian region, as
proposed in the Yushchenko Plan. At the October negotiating round, the OSCE
Chairmanship was asked to continue consultations on the possibility of
organizing an IAM to the Transdniestrian region.
Together with military experts from the Russian Federation and Ukraine, the OSCE Mission completed development of a package of proposed
confidence- and security-building measures, which were presented by the
three mediators in July. The Mission subsequently began consultations on the
package with representatives of Chisinau and Tiraspol. The October negotiating
round welcomed possible progress on enhancing transparency through a mutual
exchange of military data, as envisaged in elements of this package.”
On the question of Russian military withdrawal, the OSCE
observed:
“There was no withdrawal of Russian arms and equipment from the
Transniestrian region during 2005. Roughly 20,000 metric tons of ammunition
remain to be removed. The commander of the Operative Group of Russian Forces
reported in May that surplus stocks of 40,000 small arms and light weapons
stored by Russian forces in the Transdniestrian region have been destroyed. The
OSCE has not been allowed to verify these claims.”
In 2006, the OSCE reported as follows:
“The 17 September ‘independence’ referendum and the 10 December
‘presidential’ elections in Transnistria - neither one recognized nor monitored
by the OSCE - shaped the political environment of this work ...
To spur on the settlement talks, the Mission drafted in early
2006 documents that suggested: a possible delimitation of competencies between
central and regional authorities; a mechanism for monitoring factories in the
Transnistrian military-industrial complex; a plan for the exchange of
military data; and an assessment mission to evaluate conditions and make
recommendations for democratic elections in Transnistria. The Transnistrian
side, however, refused to continue negotiations after the March introduction of
new customs rules for Transnistrian exports, and thus no progress could be made
including on these projects. Attempts to unblock this stalemate through
consultations among the mediators (OSCE, Russian Federation and Ukraine) and
the observers (European Union and the United States of America) in April, May
and November and consultations of the mediators and observers with each of the sides
separately in October were to no avail. ...
On 13 November, a group of 30 OSCE Heads of Delegations, along
with OSCE Mission members gained access for the first time since March 2004 to
the Russian Federation ammunition depot in Colbaşna, near the Moldovan-Ukrainian
border in northern Transnistria. There were no withdrawals, however, of Russian
ammunition or equipment from Transnistria during 2006, and more than 21,000
tons of ammunition remain stored in the region ...”
The Annual Report for 2007 stated:
“The mediators in the Transnistrian settlement process, the Russian Federation, Ukraine and the OSCE, and the observers, the European Union and the United States, met four times. The mediators and observers met informally with the Moldovan
and Transnistrian sides once, in October. All meetings concentrated on finding
ways to restart formal settlement negotiations, which have nonetheless failed
to resume. ...
The Mission witnessed that there were no withdrawals of Russian
ammunition or equipment during 2007. The Voluntary Fund retains sufficient
resources to complete the withdrawal tasks.”
In 2008, the OSCE observed:
“Moldovan President Vladimir Voronin and Transnistrian leader
Igor Smirnov met in April for the first time in seven years and followed up
with another meeting on 24 December. Mediators from the OSCE, Russian Federation and Ukraine and observers from the European Union and the United States met five times. Informal meetings of the sides with mediators and observers took place
five times. These and additional shuttle diplomacy efforts by the Mission notwithstanding, formal negotiations in the ‘5+2’ format were not resumed. ...
There were no withdrawals of Russian ammunition or equipment from
the Transistrian region during 2008. The Voluntary Fund retains sufficient
resources to complete withdrawal tasks.”
C. International non-governmental organisations
In its report dated 17 June 2004, “Moldova: Regional Tensions over Transdniestria” (Europe Report no. 157), the International
Crisis Group (ICG) found as follows (extract from the Executive Summary):
“Russia’s support for the self-proclaimed and unrecognised
Dniestrian Moldovan Republic (DMR) has prevented resolution of the conflict and
inhibited Moldova’s progress towards broader integration into European
political and economic structures. In its recent and largely unilateral
attempts to resolve the Transdniestrian conflict, Russia has demonstrated
almost a Cold War mindset. Despite comforting rhetoric regarding
Russian-European Union (EU) relations and Russian-U.S. cooperation on conflict
resolution and peacekeeping within the Newly Independent States of the former
Soviet Union (NIS), old habits appear to die hard. Russia remains reluctant to
see the EU, U.S. or the Organisation for Security and Cooperation in Europe
(OSCE) play an active role in resolving the conflict because Moldova is still viewed by many in Moscow as a sphere of exclusively Russian geopolitical interest.
It has not been difficult for Russia to exploit Moldova’s
political and economic instability for its own interests. Despite having
accepted concrete deadlines for withdrawing its troops, Russia has repeatedly back-pedalled while trying to force through a political settlement that would
have ensured, through unbalanced constitutional arrangements, continued Russian
influence on Moldovan policymaking and prolongation of its military presence in
a peacekeeping guise. It has so far been unwilling to use its influence on the
DMR [“MRT”] leadership to promote an approach to conflict resolution that
balances the legitimate interests of all parties.
Ukrainian and Moldovan business circles have become adept at
using the parallel DMR economy to their own ends, regularly participating in
re-export and other illegal practices. Some have used political influence to
prevent, delay, and obstruct decisions which could have put pressure on the DMR
leadership to compromise. These include abolition of tax and customs regulations
favourable to the illegal re-export business, enforcement of effective border
and customs control, and collection of customs and taxes at internal ‘borders’.
With backing from Russian, Ukrainian and Moldovan economic
elites, the DMR leadership has become more assertive. Recognising that
international recognition is unlikely, it has focused on preserving de facto
independence through a loose confederation with Moldova. Unfortunately, DMR
leaders - taking advantage of contradictions in the tax and customs systems of Moldova and the DMR - continue to draw substantial profits from legal and illegal economic
activities including re-exports, smuggling and arms production.
The DMR has become a self-aware actor with its own interests
and strategies, possessing a limited scope for independent political manoeuvre
but an extensive web of economic and other links across Russia, Moldova, and Ukraine. However, it remains heavily dependent on Russian political and
economic support and does not like to put itself in a position where it must
act counter to Russian policy. Russian and DMR interests often overlap but in
some instances DMR leaders have been able to design and implement strategies to
avoid Russian pressure, delay negotiations, obstruct Russian initiatives, and
undermine Russian policies by playing up disagreements between the co-mediators
and capitalising on alternative sources of external support.
Russia’s most recent attempt to enforce a settlement - the
Kozak Memorandum in October and November 2003 - has shown that its influence,
while pervasive, has clear limits. Russia is unable to push through a
settlement without the support of Moldova and the international community,
especially key players such as the OSCE, EU, and the U.S. A comprehensive
political settlement requires an approach that can bridge the differences
between Russia and other key international actors while fairly considering the
interests of both the Moldovan government and the DMR.
Despite an understanding that Russia should not be antagonised,
the gravitational pull of European integration is strong in Moldova. Recently, even its communist leadership has stressed the need to do more to achieve that
goal. The country has rarely been on Western radar screens during the last
decade, however, and it will need more demonstrable EU and U.S. backing if it is to resist Russian political and material support for the DMR and
Transdniestrian obstruction of the negotiation process. International actors
must also help Moldova to secure its own borders against the illicit economic
activities which keep Transdniestria afloat and affect its European neighbours
as well.
The conflict can only be resolved if the international
community uses its influence on Russia bilaterally and within the OSCE. Only
then, and with a substantially more determined commitment to political,
economic and administrative reform on its own part, will Moldova be able to realise its European aspirations. A comprehensive strategy towards Moldova, Ukraine and Russia within the EU’s Wider Europe Policy would be a critical first step.”
In its report of 17 August 2006, “Moldova’s
Uncertain Future” (Europe Report no. 175), the ICG observed (extract from the
Executive Summary):
“With Romania’s expected entry into the European Union in 2007,
the EU will share a border with Moldova, a weak state divided by conflict and
plagued by corruption and organised crime. Moldova’s leadership has declared
its desire to join the EU, but its commitment to European values is suspect,
and efforts to resolve its dispute with the breakaway region of Transdniestria
have failed to end a damaging stalemate that has persisted for fifteen years.
Young people have little confidence in the country’s future and are leaving at
an alarming rate. If Moldova is to become a stable part of the EU’s
neighbourhood, there will need to be much greater international engagement, not
only in conflict resolution but in spurring domestic reforms to help make the
country more attractive to its citizens.
Two recent initiatives by the EU and Ukraine gave rise to hopes
that the balance of forces in the separatist dispute had changed significantly.
An EU Border Assistance Mission (EUBAM) launched in late 2005 has helped curb
smuggling along the Transdniestrian segment of the Moldova-Ukraine frontier, a
key source of revenue for the authorities in Tiraspol, the Transdniestrian
capital. At the same time, Kiev’s implementation of a landmark customs regime
to assist Moldova in regulating Transdniestrian exports has reduced the ability
of businesses in the breakaway region to operate without Moldovan oversight,
striking a major psychological blow.
But optimism that these measures would ultimately force
Transdniestria to make diplomatic concessions appears to have been false.
Although EUBAM has had significant success, particularly given its small size
and budget, widespread smuggling continues. Nor has the Ukrainian customs
regime had a decisive effect on Transdniestrian businesses, which remain capable
of profitable legal trade as they were in the past. Moreover, domestic
political uncertainty has raised questions about whether Kiev will continue to
enforce the new regulations.
Russia has increased its support for Transdniestria, sending
economic aid and taking punitive measures against Moldova, including a
crippling ban on wine exports, one of its main revenue sources. Moscow refuses to withdraw troops based in Transdniestria since Soviet times whose presence
serves to preserve the status quo. With Russian support, the Transdniestrian
leader, Igor Smirnov, has little incentive to compromise in his drive toward
independence. The internationally-mediated negotiations between the two parties
are going nowhere, despite the presence since 2005 of the EU and U.S. as observers. Although some understanding had been reached about the level of autonomy
in a settlement, Moldova has hardened its position to match Transdniestria’s
intransigence.”
In its report entitled “Freedom in the World
2009”, Freedom House commented, inter alia:
“Moldova rejected a Russian-backed federalization plan in
November 2003 after it drew public protests. The latest round of formal
multilateral talks collapsed in early 2006, and Transnistrian referendum voters
in September 2006 overwhelmingly backed a course of independence with the goal
of eventually joining Russia, although the legitimacy of the vote was not
recognized by Moldova or the international community.
In the absence of active 5+2 negotiations, Voronin pursued
bilateral talks with Russia and took a number of steps to bring Moldova’s
foreign policy into line with the Kremlin’s. For much of 2008, he urged Russia to accept a proposal whereby Transnistria would receive substantial autonomy within Moldova, a strong and unitary presence in the Moldovan Parliament, and the right to secede if Moldova were to unite with Romania in the future. Russian property rights would be respected, and
Russian troops would be replaced by civilian observers. Voronin defended his
separate ‘consultations’ with Russia by saying that any settlement would be
finalized in the 5+2 format.
The Transnistria issue took on an added degree of urgency in
August 2008, after Russia fought a brief conflict with Georgia and recognized the independence of two breakaway regions there. Russian officials said they
had no plans to recognize the PMR [‘MRT’], but warned Moldova not to adopt Georgia’s confrontational stance. The Moldovan government in turn rejected any
comparison and repeated its commitment to peaceful negotiations. Some experts
expressed concerns that Russia could impose a harsh settlement on Moldova in the bilateral talks and then recognize the PMR if the plan were rejected.
Transnistrian president Igor Smirnov’s relations with Voronin
remained tense throughout the year, as the Moldovan leader effectively
negotiated over Smirnov’s head and expressed clear frustration with the PMR
leadership. The two men met in April for the first time since 2001, then again
in December. Days after the April meeting, Romanian president Traian Basescu
indirectly raised the prospect of a partition in which Ukraine would absorb Transnistria and Romania would annex Moldova proper, prompting Voronin to
accuse him of sabotaging the negotiations. Meanwhile, Russian president Dmitri
Medvedev met with Voronin and Smirnov separately during the year ...
Political Rights and Civil Liberties
Residents of Transnistria cannot elect their leaders
democratically, and they are unable to participate freely in Moldovan elections...
Corruption and organized crime are serious problems in
Transnistria ...
The media environment is restrictive ...
Religious freedom is restricted ...
Although several thousand students study Moldovan using the
Latin script, this practice is restricted. The Moldovan language and Latin
alphabet are associated with support for unity with Moldova, while Russian and
the Cyrillic alphabet are associated with separatist goals. Parents who send
their children to schools using Latin script, and the schools themselves, have
faced routine harassment from the security services.
The authorities severely restrict freedom of assembly and
rarely issue required permits for public protests ...
The judiciary is subservient to the executive and generally
implements the will of the authorities ...
Authorities discriminate against ethnic Moldovans, who make up
about 40 percent of the population. It is believed that ethnic Russians and
Ukrainians together comprise a slim majority, and as many as a third of the
region’s residents reportedly hold Russian passports.”
III. RELEVANT
INTERNATIONAL LAW
A. International law materials concerning State
responsibility for unlawful acts
1. The International Law Commission’s Draft Articles
on the Responsibility of States for Internationally Wrongful Acts
The International Law Commission (ILC) adopted
its Draft Articles on the Responsibility of States for Internationally Wrongful
Acts (“Draft Articles”) in August 2001. Articles 6 and 8 of Chapter II of the Draft
Articles provide:
“Article 6: Conduct of organs placed at the disposal of a
State by another State
The conduct of an organ placed
at the disposal of a State by another State shall be considered an act of the
former State under international law if the organ is acting in the exercise of
elements of the governmental authority of the State at whose disposal it is
placed.
Article 8: Conduct directed or controlled by a State
The conduct of a person or group of persons shall be considered
an act of a State under international law if the person or group of persons is
in fact acting on the instructions of, or under the direction or control of that
State in carrying out the conduct.”
2. Case-law of the International Court of Justice
(ICJ)
In its advisory opinion “Legal consequences for States of the continued
presence of South Africa in Namibia, notwithstanding Security
Council resolution 276 (1970)”, the ICJ held, on the obligation
under international law to put an end to an illegal situation:
“117. Having reached these conclusions, the Court will now
address itself to the legal consequences arising for States from the continued
presence of South Africa in Namibia, notwithstanding Security Council
resolution 276 (1970). A binding determination made by a competent organ of the
United Nations to the effect that a situation is illegal cannot remain without
consequence. Once the Court is faced with such a situation, it would be failing
in the discharge of its judicial functions if it did not declare that there is
an obligation, especially upon Members of the United Nations, to bring that
situation to an end. As this Court has held, referring to one of its decisions
declaring a situation as contrary to a rule of international law: ‘This decision
entails a legal consequence, namely that of putting an end to an illegal
situation" (I.C.J. Reports 1951, p. 82).
118. South Africa, being responsible for having created and
maintained a situation which the Court has found to have been validly declared
illegal, has the obligation to put an end to it. It is therefore under
obligation to withdraw its administration from the Territory of Namibia. By maintaining the present illegal situation, and occupying the Territory without
title, South Africa incurs international responsibilities arising from a
continuing violation of an international obligation. It also remains
accountable for any violations of its international obligations, or of the
rights of the people of Namibia. The fact that South Africa no longer has any
title to administer the Territory does not release it from its obligations and
responsibilities under international law towards other States in respect of the
exercise of its powers in relation to this Territory. Physical control of a
territory, and not sovereignty or legitimacy of title, is the basis of State
liability for acts affecting other States.”
In the Case Concerning the Application of the
Convention on the Prevention and Punishment of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), judgment of 26 February 2007, the ICJ held, on
the question of State responsibility:
“391. The first issue raised by this argument is whether it is
possible in principle to attribute to a State conduct of persons - or groups of
persons - who, while they do not have the legal status of State organs, in fact
act under such strict control by the State that they must be treated as its
organs for purposes of the necessary attribution leading to the State’s
responsibility for an internationally wrongful act. The Court has in fact
already addressed this question, and given an answer to it in principle, in its
Judgment of 27 June 1986 in the case concerning Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America)
(Merits, Judgment, I.C.J. Reports 1986, pp. 62-64). In paragraph 109 of that
Judgment the Court stated that it had to
‘determine . . . whether or not the relationship of the contras
to the United States Government was so much one of dependence on the one side
and control on the other that it would be right to equate the contras, for
legal purposes, with an organ of the United States Government, or as acting on
behalf of that Government’ (p. 62).
Then, examining the facts in the light of the information in
its possession, the Court observed that ‘there is no clear evidence of the
United States having actually exercised such a degree of control in all fields
as to justify treating the contras as acting on its behalf’ (para. 109), and
went on to conclude that ‘the evidence available to the Court . . . is
insufficient to demonstrate [the contras’] complete dependence on United States
aid’, so that the Court was ‘unable to determine that the contra force may be
equated for legal purposes with the forces of the United States’ (pp. 62-63,
para. 110).
392. The passages quoted show that, according to the Court’s
jurisprudence, persons, groups of persons or entities may, for purposes of
international responsibility, be equated with State organs even if that status
does not follow from internal law, provided that in fact the persons, groups or
entities act in ‘complete dependence’ on the State, of which they are
ultimately merely the instrument. In such a case, it is appropriate to look
beyond legal status alone, in order to grasp the reality of the relationship
between the person taking action, and the State to which he is so closely
attached as to appear to be nothing more than its agent: any other solution would
allow States to escape their international responsibility by choosing to act
through persons or entities whose supposed independence would be purely
fictitious.
393. However, so to equate persons or entities with State
organs when they do not have that status under internal law must be
exceptional, for it requires proof of a particularly great degree of State
control over them, a relationship which the Court’s Judgment quoted above
expressly described as ‘complete dependence’. ...”
The ICJ went on to find that Serbia was not directly
responsible for genocide during the 1992-1995 Bosnian war. It held nonetheless
that Serbia had violated its positive obligation to prevent genocide, under the
Convention on the Prevention and Punishment of the Crime of Genocide, by
failing to take all measures within its power to stop the genocide that
occurred in Srebrenica in July 1995 and by having failed to transfer Ratko
Mladić, indicted for genocide and complicity in genocide, for trial by the
International Criminal Tribunal for the former Yugoslavia.
B. Treaty provisions concerning the right to
education
1. The Universal Declaration of Human Rights 1948
Article 26 of the Universal Declaration of Human
Rights provides:
“(1) Everyone has the right to education. Education shall be
free, at least in the elementary and fundamental stages. Elementary education
shall be compulsory. Technical and professional education shall be made
generally available and higher education shall be equally accessible to all on
the basis of merit.
(2) Education shall be directed to the full development of the
human personality and to the strengthening of respect for human rights and
fundamental freedoms. It shall promote understanding, tolerance and friendship
among all nations, racial or religious groups, and shall further the activities
of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education
that shall be given to their children.”
2. The Convention against Discrimination in Education
1960
The above Convention, which was adopted by the
United Nations Educational, Scientific and Cultural Organization during its
11th session October-December 1960, provides in Articles 1, 3 and 5:
“Article 1
1. For the purposes of this Convention, the term ‘discrimination’
includes any distinction, exclusion, limitation or preference which, being
based on race, colour, sex, language, religion, political or other opinion,
national or social origin, economic condition or birth, has the purpose or
effect of nullifying or impairing equality of treatment in education and in
particular:
(a) Of depriving any person or group of persons of access to
education of any type or at any level;
(b) Of limiting any person or group of persons to education of
an inferior standard;
(c) Subject to the provisions of Article 2 of this Convention,
of establishing or maintaining separate educational systems or institutions for
persons or groups of persons; or
(d) Of inflicting on any person or group of persons conditions
which are in-compatible with the dignity of man.
2. For the purposes of this Convention, the term ‘education’
refers to all types and levels of education, and includes access to education,
the standard and quality of education, and the conditions under which it is
given.
Article 3
In order to eliminate and prevent discrimination within the
meaning of this Convention, the States Parties thereto undertake:
(a) To abrogate any statutory provisions and any administrative
instructions and to discontinue any administrative practices which involve
discrimination in education;
...
Article 5
1.The States Parties to this Convention agree that:
(a) Education shall be directed to the full development of the
human personality and to the strengthening of respect for human rights and
fundamental freedoms; it shall promote understanding, tolerance and friendship
among all nations, racial or religious groups, and shall further the activities
of the United Nations for the maintenance of peace; ...”
3. The International Covenant on Economic, Social and Cultural
Rights 1966
Article 13 of the International Covenant on
Economic, Social and Cultural Rights provides:
“1. The States Parties to the present Covenant recognize the
right of everyone to education. They agree that education shall be directed to
the full development of the human personality and the sense of its dignity, and
shall strengthen the respect for human rights and fundamental freedoms. They
further agree that education shall enable all persons to participate
effectively in a free society, promote understanding, tolerance and friendship
among all nations and all racial, ethnic or religious groups, and further the
activities of the United Nations for the maintenance of peace.
2. The States Parties to the present Covenant recognize that,
with a view to achieving the full realization of this right:
(a) Primary education shall be compulsory and available free to
all;
(b) Secondary education in its different forms, including
technical and vocational secondary education, shall be made generally available
and accessible to all by every appropriate means, and in particular by the
progressive introduction of free education;
(c) Higher education shall be made equally accessible to all,
on the basis of capacity, by every appropriate means, and in particular by the
progressive introduction of free education;
(d) Fundamental education shall be encouraged or intensified as
far as possible for those persons who have not received or completed the whole
period of their primary education;
(e) The development of a system of schools at all levels shall
be actively pursued, an adequate fellowship system shall be established, and
the material conditions of teaching staff shall be continuously improved.
3. The States Parties to the present Covenant undertake to have
respect for the liberty of parents and, when applicable, legal guardians to choose
for their children schools, other than those established by the public
authorities, which conform to such minimum educational standards as may be laid
down or approved by the State and to ensure the religious and moral education
of their children in conformity with their own convictions.
4. No part of this article shall be construed so as to
interfere with the liberty of individuals and bodies to establish and direct
educational institutions, subject always to the observance of the principles
set forth in paragraph (1) of this article and to the requirement that the
education given in such institutions shall conform to such minimum standards as
may be laid down by the State.”
4. The International Convention on the Elimination of
All Forms of Racial Discrimination 1966
Article 5 of the above United Nations Convention
provides (as relevant):
“In compliance with the fundamental obligations laid down in
article 2 of this Convention, States Parties undertake to prohibit and to
eliminate racial discrimination in all its forms and to guarantee the right of
everyone, without distinction as to race, colour, or national or ethnic origin,
to equality before the law, notably in the enjoyment of the following rights:
...
(e) Economic, social and cultural rights, in particular:
...
(v) The right to education and training;”
5. The Convention on the Rights of the Child 1989
Articles 28 and 29 of the above United Nations
Convention provide:
“Article 28
1. States Parties recognize the right of the child to
education, and with a view to achieving this right progressively and on the
basis of equal opportunity, they shall, in particular:
(a) Make primary education compulsory and available free to
all;
(b) Encourage the development of different forms of secondary
education, including general and vocational education, make them available and
accessible to every child, and take appropriate measures such as the
introduction of free education and offering financial assistance in case of
need;
(c) Make higher education accessible to all on the basis of
capacity by every appropriate means;
(d) Make educational and vocational information and guidance
available and accessible to all children;
(e) Take measures to encourage regular attendance at schools
and the reduction of drop-out rates.
2. States Parties shall take all appropriate measures to ensure
that school discipline is administered in a manner consistent with the child’s
human dignity and in conformity with the present Convention.
3. States Parties shall promote and encourage international
cooperation in matters relating to education, in particular with a view to
contributing to the elimination of ignorance and illiteracy throughout the
world and facilitating access to scientific and technical knowledge and modern
teaching methods. In this regard, particular account shall be taken of the
needs of developing countries.
Article 29
1. States Parties agree that the education of the child shall
be directed to:
(a) The development of the child’s personality, talents and
mental and physical abilities to their fullest potential;
(b) The development of respect for human rights and fundamental
freedoms, and for the principles enshrined in the Charter of the United
Nations;
(c) The development of respect for the child’s parents, his or
her own cultural identity, language and values, for the national values of the
country in which the child is living, the country from which he or she may
originate, and for civilizations different from his or her own;
(d) The preparation of the child for responsible life in a free
society, in the spirit of understanding, peace, tolerance, equality of sexes,
and friendship among all peoples, ethnic, national and religious groups and
persons of indigenous origin;
(e) The development of respect for the natural environment.
2. No part of the present article or article 28 shall be
construed so as to interfere with the liberty of individuals and bodies to
establish and direct educational institutions, subject always to the observance
of the principle set forth in paragraph 1 of the present article and to the
requirements that the education given in such institutions shall conform to
such minimum standards as may be laid down by the State.”
THE LAW
The applicants complained about the forcible
closure of their schools by the “MRT” authorities and measures taken by those
authorities to harass and intimidate them because of their choice to pursue the
children’s education at Moldovan/Romanian-language schools. The Court must
first determine whether, in respect of the matters complained of, the applicants
fell within the jurisdiction of either or both of the respondent States, within
the meaning of Article 1 of the Convention.
I. JURISDICTION
A. The parties’ submissions
1. The applicants
(a) The jurisdiction of the Republic of Moldova
The applicants submitted that, although Moldova lacked effective control over Transdniestria, the region clearly remained part of the
national territory and the protection of human rights there remained the
responsibility of Moldova.
The applicants considered that Moldova’s
positive obligations towards them operated on several inter-connected levels. Moldova had a responsibility to take all feasible measures to restore the rule of law and
its sovereign authority in Transdniestria. It also had a positive obligation to
take all feasible measures specifically to remedy the situation of the
applicants and to protect their freedom to study and have their children study at schools using the Moldovan national language. The applicants alleged that,
despite Moldovan lack of overall control of Transdniestria, it did have considerable
means available to it in the political and economic sphere that were capable of
affecting its ongoing relationship with the “MRT” authorities.
(b) The jurisdiction of the Russian Federation
The applicants pointed out that the closure of
the schools took place in 2004, shortly after the Court delivered judgment in Ilaşcu
(cited above). They submitted that the Court’s findings of fact in Ilaşcu,
which led it to conclude that Russia exercised decisive influence over the
“MRT”, applied equally in the present case.
The applicants emphasised that since 2004 there had
been no verified withdrawals of Russian arms and equipment. They alleged that Russia had entered into secret deals with the “MRT” leaders in connection with the
management of the arms store. In 2003 the Russian Government’s own figures
showed that there were 2,200 Russian troops stationed in the region and there
was no evidence to show that that figure had diminished significantly. Their
presence was justified by Russia as necessary to guard the arms store. The
applicants submitted that the presence of both the arms and the troops was
contrary to Russia’s international commitments. The applicants further submitted
that there was no indication of any clear commitment to the removal of troops
and weapons. Instead, official Russian statements tended to indicate that
withdrawal was conditional on a political settlement being reached. In the
applicants’ view, the continued Russian military presence represented a latent
threat of future military intervention, which acted to intimidate the Moldovan
Government and opponents to the separatist regime in Transdniestria.
The applicants alleged that Transdniestria
depended on the importation of energy from Russia and on Russian investment,
aid and trade. Russia accounted for 18% of the “MRT’s” exports and 43.7% of its
imports, primarily energy. The “MRT” had paid for less than 5% of the gas it
had consumed, but Russia had taken no measures to recover the debt. Russia provided direct humanitarian aid to Transdniestria, mostly in the form of
contributions to old-age pensions, in breach of Moldovan law. The applicants
claimed that official Russian sources stated that between 2007 and 2010 the
total volume of financial assistance to Transdniestria was USD 55 million.
The applicants submitted that the Russian
political establishment regarded Transdniestria as an outpost of Russia. They provided examples of statements by members of the Duma in support of “MRT”
independence from Moldova and referred to calls made by Igor Smirnov, the
President of the “MRT” until January 2012, for Transdniestria to be
incorporated into the Russian Federation. They also underlined that some
120,000 individuals living in Transdniestria had been granted Russian
citizenship. In February and March 2005, “in response to the course of action
taken by the Moldovan Government aimed at worsening the situation around
Transdniestria”, the Duma adopted resolutions asking the Russian Government to
introduce an import ban on Moldovan alcohol and tobacco products; export energy
to Moldova (except Transdniestria) at international rates; require visas for
Moldovan nationals visiting Russia, except residents of Transdniestria. The
applicants quoted the findings of the International Monetary Fund, that these
measures had a combined negative effect on Moldova’s economic growth of 2-3%
annually in 2006-2007.
2. The Moldovan Government
(a) The jurisdiction of the Republic of Moldova
The Moldovan Government submitted that
according to the rationale of the Ilaşcu judgment (cited above),
the applicants fell within Moldova’s jurisdiction because, by claiming the
territory and by trying to secure the applicants’ rights, the Moldovan
authorities assumed positive obligations in respect of them. The Moldovan Government
maintained that they still had no jurisdiction, in the sense of authority and
control, over the Transdniestrian territory; nonetheless, they continued to
fulfil the positive obligations instituted by Ilaşcu. For the
Moldovan Government, the central issue in respect of Moldova was how far such a
positive obligation might act to engage a State’s jurisdiction. They relied, in
this respect, on the Partly Dissenting Opinion of Judge Sir Nicolas Bratza
joined by Judges Rozakis, Hedigan, Thomassen and Panţîru to the Ilaşcu
judgment.
(b) The jurisdiction of the Russian Federation
The Moldovan Government considered that, in the
light of the principles set out in Al-Skeini and Others v. the United
Kingdom [GC], no. 55721/07, 7 July 2011, the facts of the present case fell within Russia’s jurisdiction
due to the continuous military presence which had prevented the settlement of
the conflict.
The Moldovan Government emphasised that they had
no access to the arms store at Colbaşna and thus no real knowledge as to the
quantity of armaments still held by the Russian Federation in Transdniestria.
They contended that it was difficult to draw a clear line between Russian
soldiers making up the peacekeeping force under the terms of the ceasefire
agreement and Russian soldiers within the Russian Operational Group (“ROG”),
stationed in Transdniestria to guard the arms store. They submitted that,
leaving aside the high level commanders who were probably recruited directly
from Russia, many of the ordinary soldiers within both forces were Russian
nationals from Transdniestria who supported the separatist regime. Finally,
they underlined that Tiraspol military airport was under Russian control and that
“MRT” officials were able to use it freely.
The Moldovan Government submitted that the
Russian military and armaments presence in Transdniestria blocked efforts to
resolve the conflict and helped to keep the separatist regime in power. The
Moldovan Government were put at a disadvantage and could not negotiate freely
without the threat that Russian military withdrawal would be suspended, as
occurred when Moldova rejected the Kozak Memorandum (see paragraph 27 above).
The opposition of the “MRT” to the removal of the arms did not, in their view,
provide an acceptable excuse for not removing or destroying them and the
Russian Government should not accept or rely on such opposition. The Moldovan
Government was prepared to cooperate in any way, except where cooperation
entailed unduly onerous conditions, such as those included in the “Kozak
Memorandum”. The active involvement of the other international partners in the
negotiation process should also act to mitigate any excessive burden on Russia arising out of practical arrangements for the destruction of the arms store.
The Moldovan Government submitted that the “MRT”
economy was geared towards the export of goods to Russia and Ukraine; there were no real trading links between the “MRT” and Moldova proper. However, only about
20% of the population was economically active and the region survived as a
result of financial support from Russia, in the form of waiver of gas debts and
aid donations. For example, in 2011 the “MRT” received financial aid from Russia totalling USD 20.64 million. In 2011 Transdniestria consumed USD 505 million worth
of gas, but paid for only 4% (USD 20 million).
Finally, the Moldovan Government submitted
that the politics of the “MRT” were entirely orientated towards Russia and away from Moldova. There were many high-level visits between Russia and Transdniestria
and statements of support from senior Russian politicians. However, the
political situation was constantly evolving and it was difficult to give a
comprehensive assessment.
3. The Russian Government
(a) The jurisdiction of the Republic of Moldova
The Russian Government did not
comment on the jurisdictional position of the Republic of Moldova in this case.
(b) The jurisdiction of the Russian Federation
The Russian Government took issue with
the Court’s approach to jurisdiction in Ilaşcu and Al-Skeini (both
cited above). They contended that it was the will of the Contracting States, as
expressed in the text of Article 1 of the Convention, that in the absence of an
express declaration under Article 56 each State’s jurisdiction should be
limited to its territorial borders. In the alternative, the approach followed by
the Court in Banković and Others v. Belgium and 16 Other Contracting
States (dec.) [GC], no. 52207/99, ECHR 2001-XII was a more
accurate interpretation, since it recognised that jurisdiction could be
extended extra-territorially only in exceptional cases. For the Russian
Government, jurisdiction could exceptionally be extended extra-territorially
where a Contracting state exercised effective control over another territory,
equivalent to the degree of control exercised over its own territory in
peacetime. This might include cases where the State Party was in long-term
settled occupation or where a territory was effectively controlled by a
government which was properly regarded as an organ of the relevant State Party,
in accordance with the test applied by the International Court of Justice in
the Case Concerning the Application of the Convention on the Prevention and
Punishment of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro (see
paragraph 76 above). It could not be said that Russia exercised jurisdiction in
the present case, where the territory was controlled by a de facto government
which was not an organ or instrument of Russia.
In the further alternative, the Russian
Government contended that the present case should be distinguished from previous
cases because there was no evidence of any extra-territorial act by the Russian
authorities. In contrast, in Al-Skeini, for example, the Court found
that the applicants’ relatives fell within United Kingdom jurisdiction because
they had been killed by British soldiers. Even in Ilaşcu the Court
based itself on two sets of arguments in order to find Russian jurisdiction:
first, that the “MRT” was subject to Russia’s dominant influence, but also that
the applicants had been arrested and transferred to “MRT” custody by Russian
soldiers. In Ilaşcu the Court’s decision was based on the fact that
Russia had directly been involved in the arrest and, following the
ratification of the Convention, did not make sufficient efforts to secure their
release. In the present case, the Russian Government emphasised that there was
no causal link between the presence of the Russian forces in Transdniestria and
the treatment of the applicants’ schools. On the contrary, the Russian
Government had tried to resolve the schools crisis by acting as a mediator.
Moreover, the Russian Government contended that there was no evidence that Russia exercised effective military or political control in Transdniestria. If the Court were
to find Russian jurisdiction in this case, this would effectively mean that Russia would be responsible under the Convention for any violations taking place in
Transdniestria, notwithstanding the insignificant size of the Russian military
presence there. The Court should, therefore, find that the facts complained of
fell outside Russia’s jurisdiction under Article 1 of the Convention.
The Russian Government did not provide any
figures regarding the amount of weapons still stored at Colbaşna in
Transdniestria. However, they insisted that most of the weapons, ammunition and
military property was removed between 1991 and 2003. In 2003, when the Moldovan
Government refused to sign the Memorandum on the Establishment of the United Moldovan State (“the Kozak Memorandum”), the “MRT” blocked the removal of any
further items. According to the Russian Government, the cooperation of the
Moldovan authorities was also needed, since they had blocked the use of the
railway line from Transdniestria into Moldovan-controlled territory. At
present, only shells, hand grenades, mortar bombs and small-arms ammunition were
stored in the warehouses. Over 60% of this equipment was to be destroyed at the
end of its warranty period, but the Russian Government did not specify when
this would be. Moreover, its destruction would only be possible once agreement
had been reached on environmental safety. The Russian Government emphasised
that they had a responsibility to safeguard the arms store and protect against
theft but nonetheless felt themselves under pressure to remove the 1,000
servicemen stationed in Transdniestria to guard it. In addition to this small
contingent, there were approximately 1,125 Russian soldiers stationed in the
Security Area as part of the internationally agreed peace-keeping force. The
Security Area was 225 km long and 12-20 km wide. In the Russian Government’s
view, it was evident that the presence of a few hundred Russian soldiers
guarding the military warehouses and executing their peacekeeping functions could
not be the instrument of effective overall control in Transdniestria.
The Russian Government denied that they
provided any economic support to the “MRT”. As regards the supply of gas, they explained
that since the “MRT” was not recognised as a separate entity under
international law, it could not have its own sovereign debts and Russia did not effect separate gas supplies for Moldova and Transdniestria. The bill for supplying
gas to Transdniestria was, therefore, attributed to Moldova. The supply of gas
to the region was organised through the Russian public corporation Gazprom and
the joint stock company Moldovagaz, which was owned jointly by Moldova and the “MRT”. The debt owed by Moldovagaz to Russia exceeded USD 1.8 billion, of
which USD 1.5 billion related to gas consumed in Transdniestria. Gazprom could not
simply refuse to supply gas to the region, since it needed pipelines through Moldova to supply the Balkan States. Complex negotiations were on-going between Gazprom and
Moldovagaz concerning the repayment of the debt. In 2003-2004 a solution was
proposed whereby the “MRT” would permit Russia to remove military equipment to
the value of USD 1 million in return for Russia writing off an equivalent sum
from the gas debt, but this scheme was never implemented because at that point
relations between Moldova and the “MRT” deteriorated and neither was prepared
to consent. The Russian Government denied that there were separate contracts
for gas supply to Moldova and Transdniestria and contended that it was
impossible for Gazprom to fix different rates for consumers in each part of the
country. From 2008 Moldova has been required to pay for gas at European prices,
rather than on preferential internal rates.
With regard to financial aid, the Russian
Government submitted that the amount of aid given to Russian citizens living in
the region for humanitarian purposes, such as the payment of pensions and
assistance with catering in schools, prisons and hospitals, was fully
transparent, and could be compared with humanitarian aid provided by the
European Union. As well as providing aid to the population living in
Transdniestria, Russia provided aid to those living in other parts of Moldova.
In addition, the Russian Government denied that Moldova was ever subjected to
economic sanctions because of its position as regards the “MRT” and underlined
that the President and the Government, rather than the Duma, were in charge of
economic policy. In March 2006 restrictions were placed on the importation of
wine from Moldova because violations of sanitary norms were discovered.
Importation of Moldovan wine resumed from 1 November 2007 following an expert
report. The authorities of the Russian Federation considered the Republic of Moldova as a single State and had no separate trading and economic arrangements
with Transdniestria.
On the issue of political support, the Russian
Government argued that, as a matter of international law, even if it could be
established that Russia politically supported the “MRT” authorities in any
relevant way, this would not establish that Russia was responsible for human
rights violations committed by them. In their view, it was absurd to say that
where a local government had a democratic mandate, any outside power that
supported it became responsible for its human rights abuses.
B. The Court’s assessment
1. General principles relevant to jurisdiction under
Article 1 of the Convention
Article 1 of the Convention reads as follows:
“The High Contracting Parties shall secure to everyone within
their jurisdiction the rights and freedoms defined in Section I of [the]
Convention.”
The Court has established a number of clear
principles in its case-law under Article 1. Thus, as provided by this Article,
the engagement undertaken by a Contracting State is confined to “securing” (“reconnaître”
in the French text) the listed rights and freedoms to persons within its own
“jurisdiction” (see Soering v. the United Kingdom, 7 July 1989, § 86,
Series A no. 161; Banković and Others v. Belgium and Others [GC]
(dec.), no. 52207/99, § 66, ECHR 2001- XII). “Jurisdiction” under Article 1 is
a threshold criterion. The exercise of jurisdiction is a necessary condition
for a Contracting State to be able to be held responsible for acts or omissions
imputable to it which give rise to an allegation of the infringement of rights
and freedoms set forth in the Convention (see Ilaşcu and Others v.
Moldova and Russia [GC], no. 48787/99, § 311, ECHR 2004-VII; Al-Skeini
and Others v. the United Kingdom [GC], no. 55721/07, § 130, 7 July 2011).
A State’s jurisdictional competence under
Article 1 is primarily territorial (see Soering, cited above, § 86; Banković,
cited above, §§ 61; 67; Ilaşcu, cited above, § 312; Al-Skeini,
cited above § 131). Jurisdiction is presumed to be exercised normally
throughout the State’s territory (Ilaşcu, cited above, § 312; Assanidze
v. Georgia [GC], no. 71503/01, § 139, ECHR 2004-II). Conversely, acts of
the Contracting States performed, or producing effects, outside their
territories can constitute an exercise of jurisdiction within the meaning of
Article 1 only in exceptional cases (Banković, cited above, § 67; Al-Skeini,
cited above § 131).
To date, the Court has recognised a number of
exceptional circumstances capable of giving rise to the exercise of
jurisdiction by a Contracting State outside its own territorial boundaries. In
each case, the question whether exceptional circumstances exist which require
and justify a finding by the Court that the State was exercising jurisdiction
extra-territorially must be determined with reference to the particular facts (Al-Skeini,
cited above, § 132).
One exception to the principle that
jurisdiction under Article 1 is limited to a State’s own territory occurs when,
as a consequence of lawful or unlawful military action, a Contracting State
exercises effective control of an area outside that national territory. The
obligation to secure, in such an area, the rights and freedoms set out in the
Convention, derives from the fact of such control, whether it be exercised
directly, through the Contracting State’s own armed forces, or through a
subordinate local administration (Loizidou v.
Turkey (preliminary objections), 23 March 1995, § 62, Series A no. 310; Cyprus
v. Turkey [GC], no. 25781/94, § 76, ECHR 2001-IV, Banković,
cited above, § 70; Ilaşcu, cited above, §§ 314-316; Loizidou
(merits), cited above, § 52; Al-Skeini, cited above, § 138). Where the
fact of such domination over the territory is established, it is not necessary
to determine whether the Contracting State exercises detailed control over the
policies and actions of the subordinate local administration. The fact that the
local administration survives as a result of the Contracting State’s military
and other support entails that State’s responsibility for its policies and
actions. The controlling State has the responsibility under Article 1 to
secure, within the area under its control, the entire range of substantive
rights set out in the Convention and those additional Protocols which it has
ratified. It will be liable for any violations of those rights (Cyprus v.
Turkey, cited above, §§ 76-77; Al-Skeini, cited above, § 138).
It is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In
determining whether effective control exists, the Court will primarily have
reference to the strength of the State’s military presence in the area (see Loizidou
(merits), cited above, §§ 16 and 56; Ilaşcu, cited above, § 387).
Other indicators may also be relevant, such as the extent to which its
military, economic and political support for the local subordinate
administration provides it with influence and control over the region (see Ilaşcu,
cited above, §§ 388-394; Al-Skeini, cited above, § 139).
2. Application of these principles to the facts of the
case
It is convenient at this point to recall the
central facts of the case. The applicants are children and parents from the
Moldovan community in Transdniestria who complain about the effects on their
and their children’s education and family lives brought about by the language
policy of the separatist authorities. The core of their complaints relate to actions
taken by the “MRT” authorities in 2002 and 2004, to enforce decisions adopted some
years previously, forbidding the use of the Latin alphabet in schools and
requiring all schools to register and start using an “MRT”-approved curriculum and
the Cyrillic script. Thus, on 22 August 2002 “MRT” police forcibly evicted the
pupils and teachers from the Ştefan cel Mare School in Grigoriopol. The
school was not allowed to reopen in the same building and subsequently
transferred to premises some 20 kilometres away, in Moldovan-controlled
territory. The children and staff were evicted from the Evrica School in Rîbniţa in July 2004. The same month, the Alexandru cel Bun School in Tighina was threatened with closure and disconnected from electricity and water
supplies. Both schools were required to move to less convenient and less well
equipped premises in their home towns at the start of the following academic
year.
(a) The Republic of Moldova
The Court must first determine whether the case
falls within the jurisdiction of the Republic of Moldova. In this connection,
it notes that all three schools have at all times been situated within Moldovan
territory. It is true, as all the parties accept, that Moldova has no authority over the part of its territory to the east of the River Dniester, which is
controlled by the “MRT”. Nonetheless, in the Ilaşcu judgment, cited
above, the Court held that individuals detained in Transdniestria fell within
Moldova’s jurisdiction because Moldova was the territorial State, even though
it did not have effective control over the Transdniestrian region. Moldova’s
obligation under Article 1 of the Convention, to “secure to everyone within
their jurisdiction the [Convention] rights and freedoms”, was, however, limited
in the circumstances to a positive obligation to take the diplomatic, economic,
judicial or other measures that were both in its power to take and in
accordance with international law (see Ilaşcu,
cited above, § 331). The Court reached a similar conclusion in Ivanţoc
and Others v. Moldova and Russia, no.
23687/05, §§ 105-111, 15
November 2011.
110. The Court sees no ground on which to
distinguish the present case. Although Moldova has no effective control over the
acts of the “MRT” in Transdniestria, the fact that the region is recognised
under public international law as part of Moldova’s territory gives rise to an
obligation, under Article 1 of the Convention, to use all legal and diplomatic
means available to it to continue to guarantee the enjoyment of the rights and
freedoms defined in the Convention to those living there (see Ilaşcu,
cited above, § 333). The Court will consider below whether Moldova has satisfied this
positive obligation.
(b) The Russian Federation
The Court must next determine whether or not the
applicants also fall within the jurisdiction of the Russian Federation. It
takes as its starting point the fact that the key events in this case, namely
the forcible eviction of the schools, took place between August 2002 and July
2004. Those two years fell within the period of time considered by the Court in
the Ilaşcu
judgment (cited above), which was delivered in July 2004. It is true that
in that case the Court considered it relevant to the question whether Russian
jurisdiction was engaged that Mr Ilaşcu, Mr Leşco, Mr
Ivanţoc and Mr Petrov-Popa had
been arrested, detained and ill-treated by soldiers of the 14th Army in 1992,
who then transferred them to “MRT” custody. The Court considered that these
acts, although they took place before Russia ratified the Convention on 5 May
1998, formed part of a continuous and uninterrupted chain of responsibility on
the part of the Russian Federation for the detainees’ fate. The Court also
found, as part of that chain of responsibility, that during the
uprising in Transdniestria in 1991-1992, the authorities of the Russian
Federation contributed both militarily and politically to the establishment of
the separatist regime (see Ilaşcu, cited above, § 382). Furthermore,
during the period between May 1998, when Russia ratified the Convention, and May
2004, when the Court adopted the judgment, the Court found that the “MRT”
survived by virtue of the military, economic, financial and political support
given to it by the Russian Federation and that it remained under the effective
authority, or at the very least under the decisive influence, of Russia (Ilaşcu,
cited above, § 392). The Court therefore concluded that the applicants came
within the “jurisdiction” of the Russian Federation for the purposes of Article
1 of the Convention (Ilaşcu, cited above, §§ 393-394).
In these circumstances, where the Court has already
concluded that the Russian Federation had jurisdiction over certain events in
Transdniestria during the relevant period, it considers that the burden now
lies on the Russian Government to establish that Russia did not exercise
jurisdiction in relation to the events complained of by the present applicants.
The Russian Government deny that Russia exercised jurisdiction in Transdniestria during the relevant period. They emphasise,
first, that the present case is clearly distinguishable from Ilaşcu, cited
above, where the Court found that Russian soldiers had carried out the initial
arrest and imprisonment of the applicants, and Al-Skeini, also cited
above, where the Court found that the United Kingdom had jurisdiction in respect
of Iraqi civilians killed in the course of security operations carried out by
British soldiers.
The Court recalls that it has held that a State
can, in certain exceptional circumstances, exercise jurisdiction extra-territorially
through the assertion of authority and control by that State’s agents over an
individual or individuals, as for example occurred in Al-Skeini (cited
above, § 149). However, the Court has also held that a State can exercise
jurisdiction extra-territorially when, as a consequence of lawful or unlawful
military action, a Contracting State exercises effective control of an area
outside that national territory (see paragraph 106 above). The Court accepts
that there is no evidence of any direct involvement of Russian agents in the
action taken against the applicants’ schools. However, it is the applicants’
submission that Russia had effective control over the “MRT” during the relevant
period and the Court must establish whether or not this was the case.
The Government of the Russian Federation contend
that the Court could only find that Russia was in effective control if it found
that the “Government” of the “MRT” could be regarded as an organ of the Russian
State in accordance with the approach of the International Court of Justice in
the Case Concerning the Application of the Convention on the Prevention and
Punishment of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro
(see paragraph 76 above). The Court recalls that in the judgment relied upon by
the Government of the Russian Federation, the International Court of Justice
was concerned with determining when the conduct of a person or group of persons
could be attributed to a State, so that the State could be held responsible
under international law in respect of that conduct. In the instant case, however,
the Court is concerned with a different question, namely whether facts
complained of by an applicant fell within the jurisdiction of a respondent
State within the meaning of Article 1 of the Convention. As the summary of the
Court’s case-law set out above demonstrates, the test for establishing the
existence of “jurisdiction” under Article 1 of the Convention has never been
equated with the test for establishing a State’s responsibility for an
internationally wrongful act under international law.
In the circumstances of the present case, the
Court must ascertain whether, as a matter of fact, Russia exercised effective
control over the “MRT” during the period August 2002-July 2004. In making this
assessment, the Court will take as its basis all the material placed before it
or, if necessary, material obtained proprio
motu (see, mutatis mutandis, Saadi
v. Italy [GC], no. 37201/06, § 128, ECHR 2008).
The Russian Government emphasised that its
military presence in Transdniestria during the relevant period was insignificant,
comprising only approximately 1,000 ROG servicemen to guard the arms store at Colbaşna
and a further 1,125 soldiers stationed in the Security Area as part of the
internationally-agreed peace-keeping force. In the Ilaşcu judgment
the Court found that there were approximately 1,500 ROG personnel guarding the
arms store in 2002 (cited above, § 131). The numbers of Russian troops are not
disputed by the other parties to the case (see paragraph 37 above). As for the at
Colbaşna arms store, it is impossible accurately to establish its size and
contents for the period 2002-2004, since the Russian Government did not provide
the Court with the detailed information it had requested and since no
independent observer was allowed access. However, in the Ilaşcu
judgment (cited above, § 131) the Court referred to evidence to the effect that
in 2003 the ROG had at least 200,000 tonnes of military equipment and
ammunition there, and also 106 battle tanks, 42 armoured cars, 109 armoured
personnel carriers, 54 armoured reconnaissance vehicles, 123 cannons and
mortars, 206 anti-tank weapons, 226 anti-aircraft guns, nine helicopters and
1,648 vehicles of various kinds.
The Court accepts that, by 2002-2004, the number
of Russian military personnel stationed in Transdniestria had decreased
significantly (see Ilaşcu, cited above, § 387) and was small in
relation to the size of the territory. Nonetheless, as the Court found in Ilaşcu
(cited above, § 387), in view of the size of the arsenal stored at
Colbaşna, the Russian Army’s military importance in the region and its
dissuasive influence persisted. Moreover, in connection with both the arms
store and the troops, the Court considers that the historical background has a
significant bearing on the position during the period under examination in the
present case. It cannot be forgotten that in the Ilaşcu judgment
the Court held that the separatists were able to secure power in 1992 only as a
result of the assistance of the Russian military. The Colbaşna arms store
was originally the property of the USSR’s 14th Army and the Court found it
established beyond reasonable doubt that during the armed conflict the
separatists were able, with the assistance of 14th Army personnel, to equip
themselves from the arms store. The Court further found that the massive
transfer to the separatists of arms and ammunition from the 14th Army’s stores
was pivotal in preventing the Moldovan army from regaining control of Transdniestria.
In addition, the Court found that, from the start of the conflict, large
numbers of Russian nationals from outside the region, particularly Cossacks,
went to Transdniestria to fight with the separatists against the Moldovan
forces. Finally, it found that in April 1992 the Russian Army stationed in
Transdniestria (ROG) intervened in the conflict, allowing the separatists to
gain possession of Tighina.
The Russian Government has not provided the
Court with any evidence to show that these findings made in the Ilaşcu judgment
were unreliable. In the Court’s view, given its finding that the separatist regime
was initially established only as a result of Russian military assistance, the
fact that Russia maintained the arms store on Moldovan territory, in breach of
its international commitments and shrouded in secrecy, together with 1,000
troops to defend it, sent a strong signal of continued support for the “MRT”
regime.
As mentioned above, the Court in the Ilaşcu
judgment also found that the “MRT” only survived during the period in
question by virtue of Russia’s economic support, inter alia (see
paragraph 111 above). The Court does not consider that the Russian Government
have discharged the burden of proof upon them and established that this finding
was incorrect. In particular, it is not denied by the Russian Government that
the Russian public corporation Gazprom supplied gas to the region and that the
“MRT” paid for only a tiny fraction of the gas consumed, both by individual
households and by the large industrial complexes established in Transdniestria,
many of them found by the Court to be Russian-owned (see paragraphs 39-40
above). The Russian Government accepts that it spends USD millions every year
in the form of humanitarian aid to the population of Transdniestria, including
the payment of old age pensions and financial assistance to schools, hospitals
and prisons. In the light of the statistic, supplied by the Moldovan Government
and undisputed by the Russian Government, that only approximately 20% of the
population of the “MRT” are economically active, the importance for the local
economy of Russian pensions and other aid can be better appreciated. Finally,
the Court notes that the Russian Government do not take issue with the
applicants’ statistics regarding nationality, according to which almost one
fifth of those living in the region controlled by the “MRT” have been granted
Russian nationality (see paragraphs 41-42 above).
In summary, therefore, the Russian Government
have not persuaded the Court that the conclusions it reached in 2004 in the Ilaşcu
judgment (cited above) were inaccurate. The “MRT” was established as a
result of Russian military assistance. The continued Russian military and armaments
presence in the region sent a strong signal, to the “MRT” leaders, the Moldovan
Government and international observers, of Russia’s continued military support
for the separatists. In addition, the population were dependent on free or
highly subsidised gas supplies, pensions and other financial aid from Russia.
The Court, therefore, maintains its findings in
the Ilaşcu judgment (cited above), that during the period 2002-2004
the “MRT” was able to continue in existence, resisting Moldovan and
international efforts to resolve the conflict and bring democracy and the rule
of law to the region, only because of Russian military, economic and political
support. In these circumstances, the “MRT”‘s high level of dependency on
Russian support provides a strong indication that Russia exercised effective control and decisive influence over the “MRT”
administration during the period of the schools’ crisis.
It follows that the applicants in the present
case fall within Russia’s jurisdiction under Article 1 of the Convention.
The Court must now determine whether there has been any violation of their
rights under the Convention such as to incur the responsibility of the respondent
States.
II. ALLEGED VIOLATION OF
ARTICLE 2 OF PROTOCOL No. 1 TO THE CONVENTION
Article 2 of Protocol No. 1 to the Convention
provides:
“No person shall be denied the right to education. In the
exercise of any functions which it assumes in relation to education and to
teaching, the State shall respect the right of parents to ensure such education
and teaching in conformity with their own religious and philosophical
convictions.”
A. The parties’ submissions
1. The applicants
The applicants submitted that the Court
should take the opportunity to develop its jurisprudence under Article 2 of
Protocol No. 1, having regard to international standards on the right to
education. For example, Article 26 of the Universal Declaration of Human
Rights, Article 13 § 1 of the International Covenant of Economic, Social and
Cultural Rights and Article 29 § 1(a) of the Convention on the Rights of the
Child all provided that education should be directed to the “full development
of the human personality”. The Court had already recognised the importance of
education for a child’s development, with reference to these instruments: Timishev
v. Russia, nos. 55762/00 and 55974/00, § 64, ECHR 2005-XII). In the
applicants’ submission, a further aim of education was to enable children to function and participate in society, as children and in the future as adults.
Education which failed to achieve these aims could hinder a child’s access to
opportunities and his or her ability to escape poverty and enjoy other human
rights. In the applicants’ submission, the use of language was inherently
linked to these educational priorities.
The applicants submitted that the main
incidents on which they relied took place between 2002 and 2004, when the
schools were forced to close down and reopen in different premises. They
provided affidavits explaining how the “MRT” action against the schools had
affected them individually. In the summer of 2004, the schools were closed and
premises besieged and subsequently stormed by “MRT” police. Teachers were
arrested and detained and Latin script materials were seized and destroyed.
Some parents lost their jobs because of their decision to send their children to Moldovan language schools.
The applicants emphasised that there had been
no significant change to their situations since then. The law banning the Latin
script remained in force and teaching in Moldovan/Romanian carried a risk of
harassment and criminal prosecution. Following the events of 2002 and 2004,
many parents abandoned the struggle to have their children educated in
Moldovan/Romanian. Those that persisted had to accept that the quality of the
education would be affected by lack of adequate premises, long journeys to and
from school, shortage of materials, no access to extracurricular activities and
on-going harassment, vandalism of school premises, intimidation and verbal
abuse. The alternative offered by the “MRT” authorities to Moldovan/Romanian
speakers was education in “Moldavian” (Moldovan/Romanian written with the
Cyrillic script). However, since this language was not recognised anywhere
outside Transdniestria, and was not even used by the “MRT” administration, the
teaching materials dated back to Soviet times and the possibilities for further
and higher education or employment were diminished.
The failure of the “MRT” authorities to provide
on-going education in the dominant and official language of the territorial
State clearly affected the substance of the right to education. In addition,
there had been no attempt by the “MRT” to accommodate the ethnic Moldovan
population by freely permitting access to private schools where the children could be educated in their own language. The applicants compared their position to that
of the enclaved Greek population in Cyprus v. Turkey, cited
above, § 278. In addition, the applicant parents complained of an
interference with their right to respect for their philosophical convictions in
the provision by the State of education; in particular, their conviction that
the best interests of their children lay in an education in the Moldovan
language.
The applicants submitted that Moldova was under a positive obligation to take all reasonable and appropriate measures necessary to
maintain and protect teaching in the Moldovan language across its territory. As
regards Moldova’s compliance with its positive obligation, the applicants submitted
that the treatment of Latin script schools had not been made a condition of the
settlement of the conflict during the multilateral negotiations and did not
appear to have featured in representations to the “MRT” authorities and the
Russian Government. “MRT” officials were permitted to travel through Moldova without hindrance, in contrast with the action taken by the EU to ban high-ranking
members of the “MRT” establishment from EU territory, expressly because of the
treatment of Latin script schools, inter alia. The applicants also
claimed that the Moldovan Government had made insufficient efforts to ensure
that the children were restored to adequate educational facilities and to
protect them from harassment.
The applicants submitted that the
violations in this case had a direct and uninterrupted link to the Russian
Federation’s establishment and on-going support for the “MRT” administration.
There was no indication of any measures having been taken by Russia to prevent the violations or to express opposition to them. Instead, Russia supported the
“MRT” educational policy by providing teaching materials to Russian language
schools within the region, recognising “MRT” Russian language schools’
qualifications and opening Russian institutes of higher education within
Transdniestria, without consulting with the Moldovan Government.
2. The Moldovan Government
The Moldovan Government had no detailed
information about the details of the applicants’ continuing situation. However,
they were able to confirm that although the initial crisis phase appeared to
have passed and the situation had “normalised”, the number of children at each of the three schools continued to decrease. For example, numbers of children at Alexandru cel Bun and Evrica Schools had virtually halved between 2007 and 2011,
although the numbers at Ştefan cel Mare had remained relatively stable.
Overall, the number studying in the Moldovan/Romanian language in
Transdniestria had decreased from 2,545 in 2009 to 1,908 in 2011.
The Moldovan Government submitted that they had
taken all reasonable steps to improve the situation, generally as regards the
Transdniestrian conflict and particularly as regards their support for the
schools. They declared that the Transdniestrian separatist regime had never
been supported or sustained by Moldova. The Moldovan Government’s only
objective was to settle the dispute, gain control over the territory and
establish the rule of law and respect for human rights.
As regards the schools themselves, the Moldovan
Government had paid for the rent and refurbishment of the buildings, the
teachers’ salaries, educational materials, buses and computers. According to
Moldovan law, these applicants, in common with all graduates from schools in
Transdniestria, had special privileges in applying for places at Moldovan universities
and institutes of higher education. Moreover, the Moldovan Government had raised
the Transdniestrian schools’ issue at international level and sought
international assistance and mediation, for example, at a conference held under
the auspices of the EU and the OSCE in Germany in 2011. The Moldovan Government
could not be expected to do more to fulfil its positive obligation in respect
of the applicants, given that it exercised no actual authority or control over
the territory in question.
The steps which Moldova had taken to ameliorate
the applicants’ position could be taken as an implicit acknowledgement that
their rights had been violated. The Moldovan Government did not contend,
therefore, that there had been no violation of the right to education in the
present case. Instead, they asked the Court carefully to assess the respective
responsibility of each of the respondent States in respect of any such breach
of the applicants’ rights.
3. The Russian Government
The Russian Government, which denied any
responsibility for the acts of the “MRT”, submitted only limited observations
with respect to the merits of the case. However, they underlined that Russia could not be held accountable for the acts of the “MRT” police in storming the
school buildings or the “MRT” local authorities for shutting off water and
electricity supplies. They emphasised that Russia had been involved in the
schools’ crisis solely in the role of mediator. Together with Ukrainian and
OSCE mediators, they had sought to help the parties to resolve the dispute. Moreover,
they pointed out that from September-October 2004, following this international
mediation, the problems had been resolved and the children at the three schools
were able to resume their education.
B. The Court’s assessment
1. General principles
In interpreting and applying Article 2 of
Protocol No. 1, the Court must have regard to the fact that its context is a
treaty for the effective protection of individual human rights and that the
Convention must be read as a whole, and interpreted in such a way as to promote
internal consistency and harmony between its various provisions (Stec and
Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 48,
ECHR 2005-X; Austin and Others v. the United Kingdom [GC], nos.
39692/09, 40713/09 and 41008/09,
§ 54, 15 March 2012). The two sentences of Article 2 of Protocol
No. 1 must therefore be read not only in the light of each other but also, in
particular, of Articles 8, 9 and 10 of the Convention which proclaim the right
of everyone, including parents and children, “to respect for his private and
family life”, to “freedom of thought, conscience and religion”, and to “freedom
... to receive and impart information and ideas” (see Kjeldsen, Busk Madsen and Pedersen v. Denmark,
judgment of 7 December 1976, Series A no. 23, § 52; Folgerř and Others
v. Norway [GC], no. 15472/02, § 84, ECHR 2007-III; Lautsi and
Others v. Italy [GC], no. 30814/06, § 60, ECHR 2011 (extracts); see also Cyprus
v. Turkey [GC], no. 25781/94, § 278, ECHR 2001-IV). In interpreting
and applying this provision, account must also be taken of any relevant rules
and principles of international law applicable in relations between the
Contracting Parties and the Convention should so far as possible be interpreted
in harmony with other rules of international law of which it forms part (see Al-Adsani
v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI; Demir and
Baykara v. Turkey [GC], no. 34503/97, § 67, ECHR 2008; Saadi v. the
United Kingdom [GC], no. 13229/03, § 62, ECHR 2008-...; Rantsev v. Cyprus
and Russia, no. 25965/04, §§ 273-274, ECHR 2010 (extracts)). The provisions
relating to the right to education set out in the Universal Declaration of
Human Rights, the Convention against Discrimination in Education, the
International Covenant on Economic, Social and Cultural Rights, the
International Convention on the Elimination of All Forms of Racial
Discrimination and the Convention on the Rights of the Child are therefore of
relevance (see paragraphs 77-81 above, and see also Timishev v. Russia,
nos. 55762/00 and 55974/00, § 64, ECHR 2005-XI). Finally, the Court
emphasises that the object and purpose of the Convention, as an instrument for
the protection of individual human beings, requires that its provisions be
interpreted and applied so as to make its safeguards practical and effective
(see, inter alia, Soering v. the United Kingdom, 7 July 1989,
§ 87, Series A no. 161; and Artico v. Italy, 13 May 1980, § 33,
Series A no. 37).
By binding themselves, in the first sentence of
Article 2 of Protocol No. 1, not to “deny the right to education”, the
Contracting States guarantee to anyone within their jurisdiction a right of
access to educational institutions existing at a given time (see Case “relating to certain aspects of the laws on the
use of languages in education in Belgium”, judgment of 23 July
1968, Series A no. 6, §§ 3-4). This right of access constitutes only
a part of the right to education set out in the first sentence. For the right
to be effective, it is further necessary that, inter alia, the
individual who is the beneficiary should have the possibility of drawing profit
from the education received, that is to say, the right to obtain, in conformity
with the rules in force in each State, and in one form or another, official
recognition of the studies which he has completed (Case “relating to certain aspects of the laws on the
use of languages in education in Belgium”, cited above, § 4).
Moreover, although the text of Article 2 of Protocol No. 1 does not specify the
language in which education must be conducted, the right to education would be
meaningless if it did not imply in favour of its beneficiaries, the right to be
educated in the national language or in one of the national languages, as the
case may be (Case “relating to certain aspects of the laws on the use of
languages in education in Belgium”, cited above, § 3).
The right set out in the second sentence of the
Article is an adjunct of the fundamental right to education set out in the
first sentence. Parents are primarily responsible for the education and
teaching of their children and they may therefore require the State to respect
their religious and philosophical convictions (see Case “relating to certain aspects of the laws on the
use of languages in education in Belgium”, cited above, §§ 3-5 and Kjeldsen, Busk Madsen and Pedersen v. Denmark,
judgment of 7 December 1976, Series A no. 23, § 52). The second sentence
aims at safeguarding the possibility of pluralism in education which
possibility is essential for the preservation of the “democratic society” as
conceived by the Convention. It implies that the State, in fulfilling the
functions assumed by it in regard to education and teaching, must take care
that information or knowledge included in the curriculum is conveyed in an
objective, critical and pluralistic manner. The State is forbidden to pursue an
aim of indoctrination that might be considered as not respecting parents’ religious
and philosophical convictions (Kjeldsen, Busk
Madsen and Pedersen, cited above, §§ 50 and 53; Folgerř, cited
above, § 84; Lautsi, cited above, § 62).
The rights set out in Article 2 of Protocol No.
1 apply with respect to both State and private institutions (Kjeldsen, Busk
Madsen and Pedersen, cited above, § 50). In addition, the Court has
held that the provision applies to primary, secondary and higher levels of
education (see Leyla Şahin v. Turkey [GC], no. 44774/98, §§ 134
and 136, ECHR 2005-XI).
The Court however recognises that, in spite of
its importance, the right to education is not absolute, but may be subject to
limitations. Provided that there is no injury to the substance of the right,
these limitations are permitted by implication since the right of access “by
its very nature calls for regulation by the State” (see Case “relating to certain aspects of the laws on the
use of languages in education in Belgium”, cited above, § 3). In
order to ensure that the restrictions that are imposed do not curtail the right
in question to such an extent as to impair its very essence and deprive it of
its effectiveness, the Court must satisfy itself that they are foreseeable for
those concerned and pursue a legitimate aim. However, unlike the position with
respect to Articles 8 to 11 of the Convention, it is not bound by an exhaustive
list of “legitimate aims” under Article 2 of Protocol No. 1 (see, mutatis
mutandis, Podkolzina v. Latvia, no. 46726/99, § 36, ECHR
2002-II). Furthermore, a limitation will only be compatible with Article 2 of
Protocol No. 1 if there is a reasonable relationship of proportionality between
the means employed and the aim sought to be achieved (Leyla Şahin, cited
above, § 154). Although the final decision as to the observance of the
Convention’s requirements rests with the Court, the Contracting States enjoy a
certain margin of appreciation in this sphere. This margin of appreciation
increases with the level of education, in inverse proportion to the importance
of that education for those concerned and for society at large (see
Ponomaryovi v. Bulgaria, no. 5335/05, § 56, ECHR 2011).
2. Whether there has been a violation of the
applicants’ right to education in the present case
The Court notes that neither of the respondent
Governments have challenged the applicants’ allegations about the closure of
the schools. Indeed, the core events of 2002 and 2004 were monitored and
documented by a number of international organisations, including the OSCE (see
paragraph 66 above). The applicants further complain that, although the schools
were subsequently allowed to reopen, their buildings were commandeered by the
“MRT” authorities and they had to move to new premises which were less well
equipped and less conveniently situated. The applicants contend that they were
subjected to a systematic campaign of harassment and intimidation by
representatives of the “MRT” regime and private individuals. The children were verbally abused on their way to school and stopped and searched by the “MRT”
police and border guards, who confiscated Latin script books when they found
them. In addition, the two schools located in “MRT”-controlled territory were
the target of repeated acts of vandalism. The applicants submitted that the
alternative, for parents and children from the Moldovan community, was either
to suffer this harassment or change to a school where teaching was carried out
in Russian, Ukrainian or “Moldavian”, that is, Moldovan/Romanian written in the
Cyrillic script. “Moldavian” was not a language used or recognised anywhere
else in the world, although it had been one of the official languages in Moldova in Soviet times. This meant that the only teaching materials available to
“Moldavian” schools in modern-day Transdniestria dated back to Soviet times.
There were no “Moldavian” language colleges or universities, so children from such schools who wished to pursue higher education had to learn a new alphabet or language.
While it is difficult for the Court to
establish in detail the facts relating to the applicants’ experiences following
the reopening of the schools, it nonetheless notes the following. First, Article
6 of the “MRT” Law on Languages” was in force and the use of the Latin alphabet
constituted an offence in the “MRT” (see paragraph 43 above). Secondly, it is
clear that the schools had to move to new buildings, with the Alexandru cel Bun School divided between three sites and pupils at the Ştefan cel Mare School having to travel 40 kilometres each day. Thirdly, according to figures provided by the
Moldovan Government, the number of pupils enrolled in the two schools still in
“MRT” controlled territory approximately halved between 2007 and 2011 and there
has also been a significant reduction in children studying in Moldovan/Romanian
throughout Transdniestria. Although it appears that Transdniestria has an
ageing population and that Moldovans in particular are emigrating (see
paragraphs 8 and 42 above), the Court considers that the 50% attendance drop at
Evrica and Alexandru cel Bun Schools is too high to be explained by demographic
factors alone. For the Court, these uncontested facts serve to corroborate the general
thrust of the allegations contained in the 81 affidavits submitted by the
applicant parents and pupils, describing the constant harassment they suffered.
The schools were at all times registered with
the Moldovan Ministry of Education, using a curriculum set by that Ministry and
providing teaching in the first official language of Moldova. The Court
therefore considers that the forced closure of the schools, based on the ““MRT”
Law on languages” (see paragraphs 43-44 above), and the subsequent measures of harassment
constituted interferences with the applicant pupils’ rights of access to educational
institutions existing at a given time and to be educated in their national
language (see paragraph 137 above). In addition, the Court considers
that these measures amounted to an interference with the applicant parents’
rights to ensure their children’s education and teaching in accordance with
their philosophical convictions. As stated above, Article 2 of Protocol No. 1
must be read in the light of Article 8 of the Convention, which safeguards the
right to respect for private and family life, inter alia. The applicant
parents in this case wanted their children to be educated in the official
language of their country, which was also their own mother tongue. Instead,
they were placed in the invidious position of having to choose, on the one
hand, between sending their children to schools where they would face the
disadvantage of pursuing their entire secondary education in a combination of language
and alphabet which they consider artificial and which is unrecognised anywhere
else in the world, using teaching materials produced in Soviet times or,
alternatively, subjecting their children to long journeys and/or substandard
facilities, harassment and intimidation.
There is no evidence before the Court to
suggest that the measures taken by the “MRT” authorities in respect of these
schools pursued a legitimate aim. Indeed, it appears that the “MRT”‘s language
policy, as applied to these schools, was intended to enforce the Russification
of the language and culture of the Moldovan community living in Transdniestria,
in accordance with the “MRT”‘s overall political objectives of uniting with
Russia and separating from Moldova. Given the fundamental importance of primary
and secondary education for each child’s personal development and future
success, it was impermissible to interrupt these children’s schooling and force
them and their parents to make such difficult choices with the sole purpose of entrenching
the separatist ideology.
3. The responsibility of the Respondent States
(a) The Republic of Moldova
The
Court must next determine whether the Republic of Moldova has fulfilled its
obligation to take appropriate and sufficient measures to secure the applicants’
rights under Article 2 of Protocol No. 1 (see paragraph 110 above). In
the Ilaşcu
judgment (cited above, §§ 339-340) the Court held that Moldova’s positive
obligations related both to the measures needed to re-establish its control
over the Transdniestrian territory, as an expression of its jurisdiction, and
to measures to ensure respect for the individual applicants’ rights. The
obligation to re-establish control over Transdniestria required Moldova, first, to refrain from supporting the separatist regime and, secondly, to act by
taking all the political, judicial and other measures at its disposal for
re-establishing control over that territory.
As regards the fulfilment of these positive
obligations, the Court in Ilaşcu
further found that from the onset of hostilities in 1991-92 until the date of
the judgment, in July 2004, Moldova had taken all measures in its power to
re-establish control over the Transdniestrian territory (cited above, §§ 341 to
345). There is no evidence before the Court to suggest that it should reach any
different conclusion in the present case.
In the Ilaşcu
judgment the Court found that Moldova had failed fully to comply with its
positive obligation to the extent that it had failed to take all the measures
available to it in the course of negotiations with the “MRT” and Russian
authorities to bring about the end of the violation of the applicants’ rights
(cited above, §§ 348-352). In the present case, in contrast, the Court considers
that the Moldovan Government have made considerable efforts to support the
applicants. In particular, following the requisitioning of the schools’ former
buildings by the “MRT”, the Moldovan Government have paid for the rent and
refurbishment of new premises and have also paid for all equipment, staff
salaries and transport costs, thereby enabling the schools to continue
operating and the children to continue learning in Moldovan, albeit in far from
ideal conditions (see paragraphs 49-53, 56 and 61-63 above).
148. In
the light of the foregoing, the Court considers that the Republic of Moldova has fulfilled its positive obligations in respect of these applicants. It does not,
therefore, find that there has been a violation of Article 2 of Protocol No. 1
by the Republic of Moldova.
(b) The Russian Federation
The Court notes that there is no evidence of
any direct participation by Russian agents in the measures taken against the
applicants. Nor is there any evidence of Russian involvement in or approbation
for the “MRT”‘s language policy in general. Indeed, it was through efforts made
by Russian mediators, acting together with mediators from Ukraine and the OSCE, that the “MRT” authorities permitted the schools to reopen as “foreign
institutions of private education” (see paragraphs 49, 56 and 66 above).
Nonetheless, the Court has established that Russia exercised effective control over the “MRT” during the period in question. In the
light of this conclusion, and in accordance with the Court’s case-law, it is
not necessary to determine whether or not Russia exercised detailed control
over the policies and actions of the subordinate local administration (see
paragraph 106 above). By virtue of its continued military, economic and
political support for the “MRT”, which could not otherwise survive, Russia incurs responsibility under the Convention for the violation of the applicants’
rights to education. In conclusion, the Court holds that there has been a
violation of Article 2 of Protocol No. 1 to the Convention in respect of the Russian Federation.
III. ALLEGED
VIOLATION OF ARTICLE 8 OF THE CONVENTION
Article 8 of the Convention provides:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.”
The applicants submitted that the right to
respect for private and family life under Article 8 included a right to
recognition of language as part of ethnic or cultural identity. Language was an
essential means of social interaction and for the development of personal
identity. This was particularly so where, as in the present case, language was
the defining, distinguishing characteristic of a particular ethnic or cultural
group. In the present case, preventing the pupil applicants from studying in
the script of their own language, an essential aspect of their linguistic and
cultural identity, was a direct interference with their rights under Article 8.
The interference was particularly serious where the imposition of the alien
script was deliberately aimed at eliminating the linguistic heritage of the
Moldovan population within the “MRT” territory and forcing them to adopt a new “Russophile”
identity. In addition, the harassment and intimidation suffered by the pupils
for attending the schools of their choice, resulted in humiliation and fear
which had significantly impacted on their own private lives and also their
family lives, due to the inordinate pressures placed upon them.
The Moldovan Government submitted that language
is a part of ethnic and cultural identity, which in turn form part of private
life within the meaning of Article 8. They considered that the “MRT”
authorities had interfered with the applicants’ rights under Article 8, but
submitted that Moldova had discharged its positive obligation in this respect.
The Government of the Russian Federation submitted that, since Russia had no jurisdiction in relation to the applicants,
the question whether there had been a breach of their rights under Article 8
should not be addressed to Russia.
In the light of its conclusions under Article 2
of Protocol No. 1 to the Convention, the Court does not consider it necessary
separately to examine the complaint under Article 8.
IV. ALLEGED
VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN ALONE OR IN CONJUNTION WITH
ARTICLE 2 OF PROTOCOL No. 1 OR ARTICLE 8 OF THE CONVENTION
Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national or social
origin, association with a national minority, property, birth or other status.”
The applicants complained that they had been
discriminated against on grounds of their ethnicity and language. Requiring Moldovans
to study in an artificial language, unrecognised outside Transdniestria, caused
them educational, private and family life disadvantages not experienced by the members
of the other main communities in Transdniestria, namely Russians and
Ukrainians.
The Moldovan Government did not express a view
as to whether the applicants had suffered discrimination, but merely repeated
that Moldova had complied with its positive obligations under the Convention.
As with Article 8, the Russian Government
declined to comment on the issues under Article 14.
In the light of its conclusions under Article 2
of Protocol No. 1 to the Convention, the Court does not consider it necessary
separately to examine the complaint under Article 14.
V. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured party.”
The applicants claimed damages for non-pecuniary
harm and legal costs and expenses.
A. Damage
The applicants sought compensation for the
depression, anxiety, humiliation and post-traumatic stress disorder they had
suffered as a direct result of the violation of their Convention rights. They
submitted that such non-pecuniary harm could not be compensated solely by the
finding of a violation. In Sampanis and Others v. Greece, no. 32526/05,
5 June 2008 the Court awarded EUR 6,000 to each applicant who had experienced
anxiety, humiliation and depression as a result of his or her child being
denied enrolment in school on ethnic grounds. The applicants submitted that, on
this basis, they were each entitled to EUR 6,000 as a minimum in respect of the
harm they had suffered as a direct result of the denial of an effective
education due to their ethnicity and language. In addition, the applicants
submitted that, when considering applications for damages from large umbers of
victims, the Court should adopt an approach similar to that of the
Inter-American Court of Human Rights, which used an approximate estimation of
damage suffered based on the particular combinations of facts for each class of
claimant (see, for example, González et al (the “Cotton fields case”) v.
Mexico, judgment of 16 November 2009). Thus, the applicants claimed that each
applicant who was a minor at the time of the violations was entitled to an
additional EUR 3,000 in respect of non-pecuniary damage. The
applicant parents who were arrested, intimidated, threatened with dismissal
from their jobs and deprivation of parental rights each claimed an additional
EUR 5,000. All the applicants who scored over the diagnostic threshold in the
Hopkins Symptom Checklist-25 for severe depression and anxiety claimed an
additional EUR 5,000 each.
The Russian Government submitted that the
applicants’ claims were unfounded and unsubstantiated. The Court should be
guided by its own case-law rather than the approach of the Inter-American Court.
The events complained of took place for the most part in 2002 and 2004 and were
subsequently resolved. In any event, the applicants had not provided any
documentary evidence to substantiate the claims that certain among them lost
their jobs, were arrested and interrogated, suffered physical violence and
received warnings and threats. The Hopkins Symptom Checklist-25, which measures
symptoms of anxiety and depression, was designed to be administered by health
care workers under the supervision of a psychiatrist or medical doctor. When
self-administered, as by the applicants, it was unreliable and proved little.
Finally, in the view of the Government of the Russian Federation, the present
case was not comparable to Sampanis, cited above, which concerned
discrimination suffered by Greek citizens living in Greece. The Russian Federation had consistently expressed the view that applicants living in
Transdniestria did not fall within Russian jurisdiction. In the event that the
Court were to reach a contrary conclusion, the finding of violation would be
adequate just satisfaction.
The Court recalls that it has not found it
necessary or indeed possible in the present case to examine separately each
applicant’s claims regarding acts of harassment directed at him or her by the
“MRT” authorities. Moreover, the applicants’ claims under Article 3 of the
Convention were declared inadmissible by the Chamber on 15 June 2010. The
Chamber observed that the applicants did not “provide any objective medical
evidence”. It held that “the self-administered [Hopkins Symptom Checklist-25] tests
are no substitute for an examination and assessment by a mental health
professional” and concluded that the evidence before it did not support the
view that the high threshold of Article 3 had been reached (Catan and Others
v. Moldova and Russia (dec.), nos. 43370/04, 8252/05 and 18454/06, § 108,
15 June 2010).
It is clear, however, that the applicants,
both parents and children, have sustained non-pecuniary damage as a consequence
of the “MRT”‘s language policy, for which the finding of a violation of the
Convention does not afford sufficient redress. However, the amounts claimed by
the applicants are excessive. Ruling on an equitable basis, the Court assesses
the non-pecuniary damage sustained by each of the applicants at EUR 6,000.
B. Costs and expenses
The applicants did not submit a separate claim
for the costs and expenses of the Grand Chamber proceedings. However, on 20
September 2010 they submitted a claim for the costs and expenses of the
proceedings before the Chamber, including the Chamber hearing on admissibility.
In that document, the applicants submitted that the complexity of the case
justified their being represented by two lawyers and an advisor. The applicants’
representatives had worked 879 hours on all three cases, for all 170
applicants, which in total amounted to EUR 105,480.
The Moldovan Government did not comment on the
claim for costs.
The Russian Government contended that, since
the applicants had not submitted any claim for costs before the Grand Chamber,
none should be awarded. In respect of the claim dated 20 September 2010, the
Russian Government submitted that there had been no need for so many legal
representatives and that the amounts should be reduced to take account of the
fact that all three applications raised identical legal issues.
Having regard to all the relevant factors and
to Rule 60 § 2 of the Rules of Court, the Court makes a joint award to all the
applicants of EUR 50,000 for costs and expenses.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Holds, unanimously, that the facts
complained of by the applicants fall within the jurisdiction of the Republic of Moldova;
2. Holds, by sixteen votes to one, that the facts
complained of by the applicants fall within the jurisdiction of the Russian Federation, and dismisses the Russian Federation’s preliminary objection;
3. Holds, unanimously, that there has been no
violation of Article 2 of Protocol No. 1 to the Convention in respect of
the Republic of Moldova;
4. Holds, by sixteen votes to one, that there
has been a violation of Article 2 of Protocol No. 1 to the Convention in
respect of the Russian Federation;
5. Holds, by twelve votes to five, that it is
not necessary to examine separately the applicants’ complaints under Article 8
of the Convention;
6. Holds, by eleven votes to six, that it is
not necessary to examine separately the applicants’ complaints under Article 14
of the Convention, taken in conjunction with either Article 2 of Protocol No. 1
or Article 8;
7. Holds, by sixteen votes to one,
(a) that the Russian Federation is to pay the applicants,
within three months, the following amounts:
(i) EUR 6,000 (six thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage, to each applicant
named in the Schedule attached hereto;
(ii) EUR 50,000 (fifty thousand euros), plus any
tax that may be chargeable to the applicants, in respect of costs and expenses,
to all the applicants jointly;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
8. Dismisses, unanimously, the remainder of
the applicants’ claim for just satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 19 October 2012.
Michael O’Boyle Nicolas
Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed
to this judgment:
(a) Partly
dissenting opinion of Judges Tulkens, Vajić, Berro-Lefčvre, Bianku,
Poalelungi and Keller;
(b) Partly
dissenting opinion of Judge Kovler.
N.B.
M.O.B.
JOINT PARTLY DISSENTING OPINION OF JUDGES TULKENS,
VAJIĆ, BERRO-LEFČVRE, BIANKU, POALELUNGI AND KELLER
(Translation)
1. In the light of the findings made in relation to
Article 2 of Protocol No. 1, the majority takes the view that there is no need
to examine the complaint under Article 8 of the Convention or the complaint
under Article 14 separately. We can certainly understand that in some
cases, either where the judgment has dealt with the main legal issue or where
the complaints coincide or overlap, the Court should take this approach, which
could be described as procedural economy. In the instant case, however, it
appears to us to be unduly reductive, giving an incomplete picture of the
situation and the consequences it entails.
Article 8
2. We believe it is important to stress that the
right under Article 8 of the Convention to respect for private and family life,
in both its individual and social aspects, encompasses the right to the
recognition of one’s language as a component of cultural identity. Language is
an essential factor in both personal development and social interaction.
3. The 1989 United Nations Convention on the Rights
of the Child expressly provides that a child’s education should be directed to respect
for the identity, language and values of the country in which the child is
living or from which he or she originates (Article 29 § 1 (c)).
4. From the standpoint of private and family life,
the applicants’ argument that the imposition of an alien script was aimed at
undermining, and even eliminating, the linguistic heritage of the Moldovan
population and in a sense forcing them to adopt a new “identity” unquestionably
has some force and merited separate examination. This is particularly true
since the issue at stake concerns the children’s intellectual development - a
matter which clearly comes within the scope of private life - in a society
which speaks the same language but writes it in a different
alphabet. The risk of impoverishment of this linguistic and cultural identity
cannot be ruled out.
5. A further consideration arises, likewise linked
to the lives of the families and the interaction within them using their common
language. Let us take the example of a letter, email or text message written by
the parents in Romanian, using Latin script, to their children, who learn
Romanian using the Cyrillic script: being required to write the same language
in a different alphabet could conceivably, in some circumstances, give rise to
difficulties in communicating.
6. In the instant case one cannot disregard the
repercussions, on both the private and the family lives of the applicants, of
the intimidation and harassment to which the pupils and their parents were
subjected. It is clear from the case file that the authorities in the “Moldavian
Republic of Transdniestria” created a climate of intimidation such that it had
a “chilling effect” on the pupils, not just when it came to, say, using
textbooks written in Latin script but also, more broadly, when it came to using
their language within and outside school.
7. On 29 July 2004, for instance, the Transdniestrian
police stormed Evrica School in Rîbniţa and evicted the women and
children who were inside it. Over the following days police and officials from
the Rîbniţa Department of Education visited parents and threatened them
with the loss of their jobs if they did not transfer their children to another
school (see paragraph 48 of the judgment). In our view, these actions were
disproportionate and amounted to threats against the families not just in
school but also at home.
8. There was also a series of other incidents
intended purely to harass, such as the cutting of water and electricity
supplies to Alexandru cel Bun School in Tighina (see paragraph 55), the failure
to protect Evrica School in Rîbniţa against a systematic campaign of
vandalism (see paragraph 51) and the transfer of Ştefan cel Mare School
(Grigoriopol) to a village about twenty kilometres away which was under
Moldovan control and to which the children had to travel by bus, being subjected
to daily bag searches and identity checks at the border, sometimes accompanied
by insults.
With more specific reference to the issue of
checks and searches, the Court’s judgment in Gillan and Quinton v. the
United Kingdom (ECHR 2010) demonstrates very clearly, albeit in a
different context, the dangers of arbitrariness in this sphere and the absolute
necessity of putting safeguards in place (see §§ 85 and 86 of the judgment
in question).
Hence, it seems clear to us that this atmosphere
of intimidation affected the day-to-day lives of the families, who lived in a
permanently hostile environment.
These are the reasons why we believe that there
has been a violation of Article 8 of the Convention in the present case.
Furthermore, all these measures were applied
systematically against the Moldovan population which uses the Latin alphabet;
this leads us to the question of Article 14 of the Convention.
Article 14
The applicants complained that they had been
subjected to discrimination based on their language. More specifically, they
maintained that the requirement to study in a language which they considered
artificial caused them disadvantages in their private and family lives, and
particularly in their education, not experienced by the members of the other
communities in Transdniestria, namely Russians and Ukrainians. Again, this
argument merited separate examination in our opinion.
We are all aware that language is the essential
vehicle for education, the latter being the key to socialisation. This was
aptly pointed out by the 1960 United Nations Convention against Discrimination
in Education and by the International Convention on the Elimination of All Forms
of Racial Discrimination of 21 December 1965 (Article 5 (e) (v)). Conversely,
language barriers are liable to place pupils in a position of inferiority and
hence, in some cases, of exclusion. The Council of Europe’s 1982 report
entitled: “Prevention of juvenile delinquency: the role of institutions of
socialisation in a changing society”
highlights the fundamental role played by school, which can be a factor not
only in promoting but also in hindering integration.
In the social and political context of this
case, we therefore consider that there was no objective and reasonable
justification, within the meaning of our Court’s case-law, for the difference
in treatment to which the pupils were subjected and its potential consequences.
This leads us to conclude that there has been a violation of Article 14 of the
Convention.
PARTLY DISSENTING OPINION OF JUDGE KOVLER
(Translation)
I regret that, as in the earlier cases of Ilaşcu and
Others v. Moldova and Russia ([GC], no. 48787/99, ECHR 2004-VII) and Ivanţoc
and Others v. Moldova and Russia (no.
23687/05, 15 November 2011), I do not share the conclusions of the majority regarding a
number of points. In those cases I expressed my disagreement with the
methodology of the analysis (wrong parallels with a Cyprus-type conflict), the
(somewhat selective) presentation of the facts, the analysis (both disputable
and disputed by a number of specialists)
of the concepts of “jurisdiction” and “responsibility”, so there is no need for
me to do so again here as the present case is part of a line of Transdniestrian
cases. I shall therefore concentrate on the aspects peculiar
to this particular case.
In my view, the Court has sought to avoid at all costs “a
legal vacuum” in the territorial application of the Convention. The Court
should therefore establish first and foremost what the exceptional
circumstances are that are capable of giving rise to the
exercise of jurisdiction by the Contracting State (Russia here) outside its own
territorial borders. This is the thrust of the assessment of the general
principles relevant to jurisdiction, within the meaning of Article 1 of the Convention,
expressed by the Court in paragraphs 104 and 105 of the judgment, supported by
numerous examples from its own case-law including its most recent decisions. It
appears to establish such circumstances by suggesting, in
paragraph 114, that such extraterritorial control can be exercised directly by
a State through its agents or the assertion of its authority, but concludes immediately
afterwards, in the same paragraph, as follows: “The Court accepts that
there is no evidence of any direct involvement of Russian agents in the action
taken against the applicants’ schools”. So, what
exceptional circumstances remain? The “effective control over
the “MRT” during the relevant period” (see paragraphs 114 and 116 of the
judgment), plus the conclusions containing strong political overtones
(paragraphs 117-121). Is this sufficient?
Some observers refer to “the unforeseeability”
of the Court’s case-law in certain areas, particularly humanitarian law (see Kononov
v. Latvia [GC], no. 36376/04, ECHR 2010). By contrast, the outcome of the present case was only too foreseeable,
given that the judgments in Ilaşcu and Others and Ivanţoc and
Others are - rightly or wrongly - already established case-law. What is “unforeseeable”
in this judgment, however, is the controversial interpretation of the content
and scope of the right to education set forth in Article 2 of Protocol
No. 1. In the leading Belgian linguistic case the Court’s
interpretation of the second sentence of that Article dispelled any
ambiguities: “This provision does not require of States that they should, in
the sphere of education or teaching, respect parents’ linguistic preferences,
but only their religious and philosophical convictions. To interpret the terms
“religious” and “philosophical” as covering linguistic preferences would amount
to a distortion of their ordinary and usual meaning and to read into the
Convention something which is not there” (Case “relating to certain aspects
of the laws on the use of languages in education in Belgium” v. Belgium
(merits), 23 July 1968, § 6, Series A no. 6). Admittedly, that judgment also
says that the right to education would be meaningless if it did not imply, in
favour of its beneficiaries, the right to be educated in the national language
or in one of the national languages, as the case may be. The
Court could therefore have concentrated on the exercise of this “linguistic”
right which, in the present case, ran up against the problem of the use of a
particular alphabet.
In its admissibility decision the Court reiterated the
position of the Moldovan Government in that connection: “According to the
information available to the Moldovan Government, education in the three
schools which were the subject of the present applications was currently being
carried out in the official Moldovan language, using the Latin script, and
based on curricula approved by the Moldovan Ministry of Education and Youth
(MEY). The applicants had not provided any evidence to prove that the “MRT”
authorities had been successful in their attempts to impose the Cyrillic script
and an “MRT” curriculum... Thus, despite the attempts of the “MRT” authorities,
the children were receiving an education in their own language and according to
the convictions of their parents” (see Catan and Others v. Moldova and Russia
(dec.), nos. 43370/04, 8252/05 and 18454/06, § 117, 15 June 2010).
In my view, the schooling issue as such and the
language-alphabet aspect stops there. Regard must of course be had to Article 32
of the Convention, and also the notion that the Convention is a living
instrument, but it should not be forgotten that the Convention is an
international treaty to which the Vienna Convention on the Law of Treaties
applies: “A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in
the light of its object and purpose” (Article 31 “General rule of
interpretation”). In my view, the Court should not examine the complaint under
Article 2 of Protocol No. 1 on the merits because this complaint goes well
beyond the ordinary meaning given to the right to education.
However, the Court follows a slippery
slope proposed by the applicants: “education should be directed to the ‘full
development of the human personality’” (see paragraph 125 of
the judgment). In its examination of this application, the Court seeks to
develop its case-law on Article 2 of Protocol No. 1... while refraining, by
a majority, from replacing the problem within the context of the provisions of
Article 8. The magic wand consisting in an “evolutive interpretation” of the
Convention is applied only to Article 2 of Protocol No. 1, giving it a
meaning hitherto unseen... The task that the Court sets itself at the beginning
of its analysis of the context of this Article (see paragraph 136 of the
judgment) conflicts with the ratione materiae criterion. I fear
that, in taking this approach, the Court is setting a bad example of what is
called “judicial activism”. In my view, the case is too sensitive to be used as
a trial ground for judicial activism.
This activism is also apparent, alas, in the
application of Article 41 of the Convention. What I find particularly shocking
is the “egalitarian” approach: children aged six at the time of the events
(born in 1997 or 1998) are placed on an equal footing with secondary-school pupils,
and parents of schoolchildren with parents who have not included their children
in their application. In the fairly recent judgment in the case of Ponomaryovi v. Bulgaria (no. 5335/05, § 56, ECHR 2011), the Court
awarded each of the applicants EUR 2,000 on account of the violation of
Article 14 taken in conjunction with Article 2 of Protocol No. 1. In Oršuš and Others v. Croatia ([GC],
no. 15766/03, ECHR 2010), which concerns the education
of Roma children, it awarded each applicant, for several violations, among
which was Article 2 of Protocol No. 1, EUR 4,500, and in Sampanis
and Others v. Greece (no. 32526/05, 5 June 2008) it
awarded each applicant EUR 6,000 on account of the greater seriousness of the violation
(Article 13 and Article 14 taken in conjunction with Article 2 of Protocol
No. 1). In the present case, however, a far more generous award is made in
respect of a single violation. This observation also concerns the costs
and expenses: EUR 10,000 in Oršuš and EUR 50,000 in the present case,
whereas these are both Grand Chamber cases... The principle “it’s not my money”
is irrelevant because it is the taxpayer’s money of a member State of the Council of Europe.
It is in the light of all the foregoing
considerations that I am unable to subscribe to the majority view regarding
certain points that I consider to be of major importance.
