GRAMA AND DIRUL v. THE REPUBLIC OF MOLDOVA AND RUSSIA - 28432/06 (Judgment : Protection of property : Second Section Committee) [2019] ECHR 724 (15 October 2019)

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You are here: BAILII >> Databases >> European Court of Human Rights >> GRAMA AND DIRUL v. THE REPUBLIC OF MOLDOVA AND RUSSIA - 28432/06 (Judgment : Protection of property : Second Section Committee) [2019] ECHR 724 (15 October 2019) URL: http://www.bailii.org/eu/cases/ECHR/2019/724.html Cite as: [2019] ECHR 724

In the case of Grama and Dîrul v. the Republic of Moldova and Russia,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Julia Laffranque, President,
          Ivana Jelić,
          Arnfinn Bårdsen, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 24 September 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in two applications (nos. 28432/06 and 5665/07) against the Republic of Moldova and Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Moldovan nationals, Mr Ion Grama and Mr Mihai Dîrul (“the applicants”), on 28 June 2006 and 16 January 2007 respectively.

2. The applicants were represented by Mr A. Postică and I. Manole lawyers practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr O. Rotari, and the Russian Government were represented by their Agent, Mr G. Matyushkin.

3. On 02 July 2018 the complaints under Article 13 and under Article 1 of Protocol No. 1 to the Convention were communicated to the respondent Governments and the remainder of the applications was declared inadmissible.

4. The Russian Government objected to the examination of the application by a Committee. After having considered the objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1955 and 1944, respectively, and live in Corjova and Lunga, the Transdniestrian region of Moldova.

6. They had their cars registered with the authorities of the Republic of Moldova and had Moldovan registration plates on them.

7. On 17 November 2005 and 21 December 2006 the customs office of the self-proclaimed “Moldovan Republic of Transdniestria” (“MRT”) stopped the applicants and seized their cars on the grounds that they had Moldovan plates and had not been registered with the “MRT” customs authorities and no customs duties had been paid for their temporary use on the territory of the “MRT”. The applicants were obliged to pay fines of some 18 United States dollars (“USD”) and some 9 euros (“EUR”) respectively in order to recover their cars.

8. The applicants recovered their cars on 16 December 2005 and 27 December 2006, respectively, after having paid the fines.

9. According to the applicants, they complained to the authorities of Moldova, who did not undertake any action.

10. The Moldovan Government submitted that only the second applicant informed the Moldovan authorities about the seizure of his car. As a result, the Government informed the Organisation for Security and Cooperation in Europe and a criminal investigation was initiated by the Dubăsari District Prosecutor’s Office into that applicant’s complaints.

II. RELEVANT NON-CONVENTION MATERIAL

11. Reports by inter-governmental and non-governmental organisations, the relevant domestic law and practice of the Republic of Moldova, and other pertinent documents were summarised in Mozer v. the Republic of Moldova and Russia ([GC], no. 11138/10, §§ 61-77, 23 February 2016).

THE LAW

I. JOINDER OF APPLICATIONS

12. The Court notes that the subject matter of the applications (nos. 28432/06 and 5665/07) is similar. It is therefore appropriate to join the cases, in application of Rule 42 of the Rules of Court.

II. JURISDICTION

13. The Court must first determine whether the applicants fell within the jurisdiction of the respondent States for the purposes of the matters complained of, within the meaning of Article 1 of the Convention.

A. The parties’ submissions

14. The applicants and the Moldovan Government submitted that both respondent Governments had jurisdiction.

15. For their part, the Russian Government argued that the applicants did not come within their jurisdiction and that, consequently, the applications should be declared inadmissible ratione personae and ratione loci in respect of the Russian Federation. As they did in Mozer (cited above, §§ 92-94), the Russian Government expressed the view that the approach to the issue of jurisdiction taken by the Court in Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, ECHR 2004‑VII); Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, ECHR 2012; and Ivanţoc and Others v. Moldova and Russia (no. 23687/05, 15 November 2011) was wrong and at variance with public international law.

B. The Court’s assessment

16. The Court recalls that the general principles concerning the issue of jurisdiction under Article 1 of the Convention in respect of acts and facts occurring in the Transdniestrian region of Moldova were set out in Ilaşcu and Others (cited above, §§ 311-19); Catan and Others (cited above, §§ 103-07) and, more recently, Mozer (cited above, §§ 97-98).

17. In so far as the Republic of Moldova is concerned, the Court notes that in Ilaşcu and Others, Catan and Others and Mozer it found that although Moldova had no effective control over the Transdniestrian region, it followed from the fact that Moldova was the territorial State that persons within that territory fell within its jurisdiction. However, its obligation, under Article 1 of the Convention, to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention, was limited to that of taking the diplomatic, economic, judicial and other measures that were both in its power and in accordance with international law (see Ilaşcu and Others, cited above, § 333; Catan and Others, cited above, § 109; and Mozer, cited above, § 100). Moldova’s obligations under Article 1 of the Convention were found to be positive obligations (see Ilaşcu and Others, cited above, §§ 322 and 330-31; Catan and Others, cited above, §§ 109-10; and Mozer, cited above, § 99).

18. The Court sees no reason to distinguish the present cases from the above-mentioned cases. Besides, it notes that the Moldovan Government do not object to applying a similar approach in the present case. Therefore, it finds that Moldova has jurisdiction for the purposes of Article 1 of the Convention, but that its responsibility for the acts complained of is to be assessed in the light of the above-mentioned positive obligations (see Ilaşcu and Others, cited above, § 335).

19. In so far as the Russian Federation is concerned, the Court notes that in Ilașcu and Others it found that the Russian Federation contributed both militarily and politically to the creation of a separatist regime in the region of Transdniestria in 1991-1992 (see Ilașcu and Others, cited above, § 382). The Court also found in subsequent cases concerning the Transdniestrian region that up until July 2010, the “MRT” was only able to continue to exist, and to resist Moldovan and international efforts to resolve the conflict and bring democracy and the rule of law to the region, because of Russian military, economic and political support (see Ivanţoc and Others, cited above, §§ 116-20; Catan and Others, cited above, §§ 121‑22; and Mozer, cited above, §§ 108 and 110). The Court concluded in Mozer that the “MRT”‘s high level of dependency on Russian support provided a strong indication that the Russian Federation continued to exercise effective control and a decisive influence over the Transdniestrian authorities and that, therefore, the applicants fell within that State’s jurisdiction under Article 1 of the Convention (see Mozer, cited above, §§ 110-11).

20. The Court sees no grounds on which to distinguish the present case from Ilașcu and Others, Ivanţoc and Others, Catan and Others and Mozer (all cited above).

21. It follows that the applicants in the present cases fell within the jurisdiction of the Russian Federation under Article 1 of the Convention. Consequently, the Court dismisses the Russian Government’s objections ratione personae and ratione loci.

22. The Court will hereafter determine whether there has been any violation of the applicants’ rights under the Convention such as to engage the responsibility of either respondent State (see Mozer, cited above, § 112).

III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

23. The applicants complained that the seizure of their cars and the imposition of fines on them had constituted an unlawful interference with their right to property, which is guaranteed by Article 1 of Protocol No. 1 to the Convention. Article 1 of Protocol No. 1 reads as follows:

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. Admissibility

24. The Moldovan Government submitted that the applicants had not exhausted the remedies available to them in Moldova. They argued therefore that the parts of the applications concerning Moldova should be declared inadmissible for failure to exhaust domestic remedies in Moldova.

25. The Court notes that the same objection was raised by the Moldovan Government and dismissed by the Court in Mozer (cited above, §§ 115‑121). It sees no grounds on which to distinguish the present case from Mozer (cited above) and rejects the Moldovan Government’s objection of non-exhaustion of domestic remedies on the same grounds as in that case.

26. The Russian Government submitted that the applications should be rejected for failure to exhaust domestic remedies before either the “MRT” courts, Moldovan courts or Russian courts. The Court recalls that it has already examined and dismissed a similar objection in the cases of Vardanean v. the Republic of Moldova and Russia (no. 22200/10, §§ 27 and 31, 30 May 2017) and Bobeico and Others v. the Republic of Moldova and Russia (no. 30003/04, § 39, 23 October 2018). Since no new arguments have been adduced by the Russian Government, the Court sees no reason to reach a different conclusion in this case. It follows that the Russian Government’s objection of non-exhaustion of domestic remedies must also be dismissed.

27. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other ground. The Court therefore declares it admissible.

B. Merits

28. The applicants complained that the seizure of their cars and the imposition of fines on them had violated their right to the peaceful enjoyment of their possessions under Article 1 of Protocol No. 1 to the Convention.

29. The Moldovan Government submitted that the interference with the applicants’ rights had not been lawful because it had not been provided for by the domestic laws of the Republic of Moldova.

30. The Russian Government did not submit any specific observations in this regard. Their position was that they did not have “jurisdiction” in the territory of the “MRT” and that they were therefore not in a position to make any observations on the merits of the case.

31. The Court notes that the parties did not dispute the fact that the applicants’ cars constituted possessions for the purposes of Article 1 of Protocol No. 1 to the Convention. It further notes that it is similarly undisputed that the cars were seized by the “MRT” authorities and that the applicants were forced to pay fines in order to recover them. In these circumstances, the Court finds that there was a clear interference with the applicants’ right to the peaceful enjoyment of their possessions for the purposes of Article 1 of Protocol No. 1 to the Convention. According to the Court’s case-law (see among other authorities, Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 142, ECHR 2005‑VI), such interference constitutes a measure of control of the use of property which falls to be examined under the second paragraph of that Article. For a measure constituting control of use to be justified, it must be lawful (see Katsaros v. Greece, no. 51473/99, § 43, 6 June 2002; Herrmann v. Germany [GC], no. 9300/07, § 74, 26 June 2012; Centro Europa 7 S.R.L. and Di Stefano v. Italy [GC], no. 38433/09, § 187, ECHR 2012) and “in accordance with the general interest”. The measure must also be proportionate to the aim pursued; however, it is only necessary to examine the proportionality of an interference once its lawfulness has been established (see Katsaros, cited above, § 43).

32. In so far as the lawfulness of the interference is concerned, no elements in the present case allow the Court to consider that there was a legal basis for interfering with the rights of the applicants guaranteed by Article 1 of Protocol No. 1 to the Convention (see Turturica and Casian v. the Republic of Moldova and Russia, nos. 28648/06 and 18832/07, § 49, 30 August 2016; and Pădureţ v. the Republic of Moldova and Russia, no. 26626/11, § 29, 9 May 2017).

33. In those circumstances, the Court concludes that the interference was not lawful under domestic law. Accordingly, there has been a violation of Article 1 of Protocol No. 1 to the Convention.

34. The Court must next determine whether the Republic of Moldova fulfilled its positive obligation to take appropriate and sufficient measures to secure the applicants’ rights (see paragraph 17 above). In Mozer, the Court held that Moldova’s positive obligations related both to measures needed to re-establish its control over the Transdniestrian territory, as an expression of its jurisdiction, and to measures to ensure respect for individual applicants’ rights (see Mozer, cited above, § 151).

35. As regards the first aspect of Moldova’s obligations, to re-establish control, the Court found in Mozer that, from the onset of the hostilities in 1991-1992 until July 2010 Moldova had taken all the measures in its power (see Mozer, cited above, § 152). Since the events complained of in the present case took place before the latter date, the Court sees no reason to reach a different conclusion (ibidem).

36. Turning to the second part of the positive obligations, namely to ensure respect for the applicants’ rights, the Court notes that the first applicant adduced no evidence to the effect that he had informed the Moldovan authorities of his problem. In such circumstances, the non-involvement of the Moldovan authorities in the case of the applicant cannot be held against them. In so far as the second applicant is concerned, the Court notes that the Moldovan authorities made efforts to secure his rights, namely a criminal investigation was initiated in respect of the seizure of his car and the OSCE was informed about the matter.

37. In the light of the foregoing, the Court concludes that the Republic of Moldova did not fail to fulfil its positive obligations in respect of the applicants. There has therefore been no violation of Article 1 of Protocol No. 1 to the Convention by the Republic of Moldova.

38. In so far as the responsibility of the Russian Federation is concerned, the Court has established that Russia exercised effective control over the “MRT” during the period in question (see paragraphs 19-20 above). In the light of this conclusion, and in accordance with its 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 Mozer, cited above, § 157). By virtue of its continued military, economic and political support for the “MRT”, which could not otherwise survive, Russia’s responsibility under the Convention is engaged as regards the violation of the applicants’ rights.

39. In conclusion, and after having found that the applicants’ rights guaranteed by Article 1 of Protocol No. 1 to the Convention have been breached (see paragraph 33 above), the Court holds that there has been a violation of that provision by the Russian Federation.

IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

40. The applicants further complained that they had no effective remedy in respect of their complaint under Article 1 of Protocol No. 1 to the Convention. They relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Admissibility

41. The Court notes that the complaint under Article 13 of the Convention, taken in conjunction with Article 1 of Protocol No. 1 to the Convention, is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that, in the light of its findings above (see paragraphs 24-26) it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

42. The applicants submitted that they had had no means of asserting their rights in the face of the actions of the “MRT” authorities.

43. The respondent Governments did not make any submissions on the merits of this complaint.

44. The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy by which to complain of a breach of the Convention rights and freedoms. Therefore, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision, there must be a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief. The scope of the obligation under Article 13 of the Convention varies depending on the nature of the applicant’s complaint under the Convention, but the remedy must in any event be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the State (Mozer, cited above, § 207; and Khlaifia and Others v. Italy [GC], no. 16483/12, § 268, 15 December 2016; and De Tommaso v. Italy [GC], no. 43395/09, § 179, 23 February 2017). However, Article 13 of the Convention requires that a remedy be available in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (Mozer, cited above, § 207; and De Tommaso, cited above, § 180).

45. The Court observes that the applicants’ complaint under Article 1 of Protocol No.1 to the Convention was arguable.

46. In so far as the applicants complained against Moldova, the Court notes that the Moldovan Government did not point to the existence of any effective remedy under Moldovan domestic law.

47. In so far as the applicants complained against Russia, the Court also notes that there is no indication in the file, and the Russian Government have not claimed, that any effective remedies were available to the applicants in the “MRT” in respect of the above-mentioned complaints.

48. The Court therefore concludes that the applicants did not have an effective remedy in respect of their complaint under Article 1 of Protocol No. 1 to the Convention. Consequently, the Court must decide whether any violation of Article 13 of the Convention can be attributed to either of the respondent States.

49. In so far as the responsibility of Moldova is concerned, the Court recalls that it found that the “remedies” which this State must offer to applicants consisted of enabling them to inform the Moldovan authorities of the details of their situation and to be kept informed of the various legal and diplomatic actions taken by these authorities (Mozer, cited above, § 214). In Mozer, it concluded among other things that Moldova had made procedures available to the applicant commensurate with its limited ability to protect the applicant’s rights and that it had thus fulfilled its positive obligations (ibid., § 216). In the present case, the Court sees no reason to reach a different conclusion (see Mangîr and Others v. the Republic of Moldova and Russia, no. 50157/06, § 71, 17 July 2018). Accordingly, it finds that there has been no violation of Article 13 of the Convention by Moldova.

50. In so far as the responsibility of the Russian Federation is concerned, for the same reasons as those given in respect of the complaint under Article 1 of Protocol No. 1 to the Convention and in the absence of any submission by the Russian Government as to any remedies available to the applicants, the Court concludes that there has been a violation by the Russian Federation of Article 13 of the Convention, taken in conjunction with Article 1 of Protocol No. 1 to the Convention (see Mozer, cited above, § 218; and Mangîr and Others, cited above, § 72).

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

51. 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.”

A. Pecuniary damage

52. The applicants claimed 5 and 8 euros (EUR), respectively, in respect of pecuniary damage, representing the fine paid to the “MRT” authorities as calculated at the conversion rate on the date of the claim.

53. The Governments asked the Court to dismiss the applicants’ claims.

54. The Court has not found any violation of the Convention by Moldova in the present case. Accordingly, no award of compensation is to be made with regard to this respondent State.

55. The Court further notes that the Russian Government did not challenge the value of the fines paid by the applicants. The Court therefore considers it reasonable to award the applicants’ claim in full.

B. Non-pecuniary damage

56. The applicants also claimed EUR 6,000 each in respect of non-pecuniary damage.

57. The Governments contended that the claims were excessive and asked the Court to dismiss them.

58. For the reasons given above (see paragraph 54), no award is to be made with regard to the Republic of Moldova.

59. Having regard to its finding of a violation of the applicants’ rights by the Russian Federation, the Court considers that an award in respect of non‑pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards EUR 3,000 to each applicant.

C. Costs and expenses

60. The applicants also claimed EUR 1,800 each for costs and expenses.

61. The respondent Governments considered that the sums claimed were excessive and asked the Court to dismiss them.

62. For the reasons given above (see paragraph 54), no award is to be made with regard to the Republic of Moldova.

63. The Court reiterates that in order for costs and expenses to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Mozer, cited above, § 240). Having regard to all the relevant factors and to Rule 60 § 2 of the Rules of Court, the Court awards the amounts claimed in full.

D. Default interest

64. 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. Decides to join the applications;

2. Declares the applications admissible in respect of the Republic of Moldova;

3. Declares the applications admissible in respect of the Russian Federation;

4. Holds that there has been no violation of Article 1 of Protocol No. 1 to the Convention by the Republic of Moldova;

5. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention by the Russian Federation;

6. Holds that there has been no violation of Article 13 of the Convention by the Republic of Moldova;

7. Holds that there has been a violation of Article 13 of the Convention by the Russian Federation;

8. Holds

(a) that the Russian Federation is to pay the applicants, within three months, the following amounts:

(i) EUR 5 (five euros), plus any tax that may be chargeable, in respect of pecuniary damage, to the first applicant;

(ii) EUR 8 (eight euros), plus any tax that may be chargeable, in respect of pecuniary damage, to the second applicant;

(iii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to the first applicant;

(iv) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to the second applicant;

(v) EUR 1,800 (one thousand eight hundred euros), plus any tax that may be chargeable to the first applicant, in respect of costs and expenses;

(vi) EUR 1,800 (one thousand eight hundred euros), plus any tax that may be chargeable to the second applicant, in respect of costs and expenses.

(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;

9. Dismisses the remainder of the applicants claim for just satisfaction.

Done in English, and notified in writing on 15 October 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Julia Laffranque
Deputy Registrar President