(Application No. 48787/99)
(Strasbourg, 8.VII.2004)
In the case of {Ilascu} and Others v. Moldova and Russia,
<*> Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.
<**> This judgment is final but may be subject to editorial revision.
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Mr L. Wildhaber, President,
Mr C.L. Rozakis,
Mr J.-P. Costa,
Mr G. Ress,
Sir Nicolas Bratza,
Mr L. Loucaides,
Mr I. Cabral Barreto,
Mrs F. Tulkens,
Mr {C. Birsan},
Mr J. Casadevall,
Mr {B. Zupancic},
Mr J. Hedigan,
Mrs W. Thomassen,
Mr {T. Pantiru},
Mr E. Levits,
Mr A. Kovler,
Mrs {E. Fura-Sandstrom}, Judges,
and Mr P.J. Mahoney, Registrar,
Having deliberated in private on 23 January, 26 February and 11 September 2002, 8 October 2003 and 7 May 2004,
Delivers the following judgment, which was adopted on the last-mentioned date:
1. The case originated in an application (No. 48787/99) 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 four Moldovan nationals, Mr Ilie {Ilascu}, Mr Alexandru {Lesco}, Mr Andrei {Ivantoc} and Mr Tudor Petrov-Popa ("the applicants"), on 5 April 1999.
2. The application mainly concerns acts committed by the authorities of the "Moldavian Republic of Transdniestria" ("the MRT"), a region of Moldova which proclaimed its independence in 1991 but is not recognised by the international community.
3. The applicants submitted that they had been convicted by a Transdniestrian court which was not competent for the purposes of Article 6 of the Convention, that they had not had a fair trial, contrary to the same provision, and that following their trial they had been deprived of their possessions in breach of Article 1 of Protocol No. 1. They further contended that their detention in Transdniestria was not lawful, in breach of Article 5, and that their conditions of detention contravened Articles 3 and 8 of the Convention. In addition, Mr {Ilascu} alleged of a violation of Article 2 of the Convention on account of the fact that he had been sentenced to death. The applicants argued that the Moldovan authorities were responsible under the Convention for the alleged infringements of the rights secured to them thereunder, since they had not taken any appropriate steps to put an end to them. They further asserted that the Russian Federation shared responsibility since the territory of Transdniestria was and is under de facto Russian control on account of the Russian troops and military equipment stationed there and the support allegedly given to the separatist regime by the Russian Federation.
Lastly, the applicants alleged that Moldova and the Russian Federation had obstructed the exercise of their right of individual application to the Court, thus breaching Article 34.
1. The admissibility proceedings
4. The application was allocated to the former First Section of the Court (Rule 52 § 1 of the Rules of Court). The First Section gave notice of the application to the respondent Governments on 4 July 2000. Written observations on its admissibility were filed on 24 October 2000 by the Moldovan Government, on 14 November 2000 by the Russian Government and on 2 January 2001 by the applicants.
5. On the 20 March 2001 the Chamber of the First Section relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72 of the Rules of Court).
6. The composition of the Grand Chamber was determined in accordance with Article 27 §§ 2 and 3 of the Convention and Rule 24. At the final deliberations Mr I. Cabral Barreto and Mr {B. Zupancic}, substitute judges, replaced Mr L. Ferrari Bravo and Mr J. Makarczyk, who were unable to take part in the further consideration of the case (Rule 24 § 3).
7. By a decision of 4 July 2001 the Grand Chamber declared the application admissible, after a hearing on the admissibility and merits (Rule 54 § 4) held on 6 June 2001. At the hearing the Moldovan Government declared that they wished to withdraw their memorial of 24 October 2000, or at least that part of it which related to the responsibility of the Russian Federation.
In its decision on admissibility the Court held that the questions whether the responsibility and jurisdiction of Moldova and the Russian Federation might be engaged under the Convention, and whether the Court had jurisdiction ratione temporis to examine the applicants" complaints, were closely linked to the merits of the case, to which it accordingly joined them.
2. The proceedings on the merits
(a) Written observations of the parties
8. After the application had been declared admissible both the applicants and the Moldovan and Russian Governments filed written observations on the merits of the case: the Moldovan Government on 12 November 2001 and 28 January 2002, the Russian Government on 8 December 2001, and the applicants on 27 September and 2, 4, 12 and 16 November 2001.
Observations were also submitted by the Romanian Government, whom the President had invited to intervene in the proceedings in the interests of the proper administration of justice (Article 36 of the Convention and Rule 61 §§ 2 and 3). The parties replied (Rule 61 § 5). A request to intervene was also submitted by Mrs Ludmila Gusar, a civil party in the proceedings which led to the applicants" conviction by the "Supreme Court of the MRT". The President of the Grand Chamber refused her request.
9. After the witness hearings (see paragraphs 12 to 15 below), the parties were invited by the President to file their final observations by 1 September 2003 at the latest. The President having refused a request by the Russian Government for an extension of the time allowed, the parties" final written submissions were received by the Court on that date.
10. On 12 January 2004 the President of the Grand Chamber decided to invite the respondent Governments under Rule 39 to take all necessary steps to ensure that Mr {Ivantoc}, who had been on hunger strike since 28 December 2003, was detained in conditions which were consistent with respect for his rights under the Convention. The parties were invited, in accordance with Rule 24 § 2 (a), to provide information about the implementation of the interim measures requested. Mr {Ivantoc"s} representative, Mr Gribincea, and the Moldovan Government provided the Court with the information requested in letters dated 24 and 26 January 2004 respectively.
11. On 15 January 2004 the President decided to urge Mr {Ivantoc} under Rule 39 to call off his hunger strike. On 24 January 2004 Mr {Ivantoc"s} representative informed the Court that his client had ended his hunger strike on 15 January 2004.
(b) The witness hearings
12. In order to clarify certain disputed points and, in particular, the question whether Moldova and/or the Russian Federation were responsible for the alleged violations, the Court carried out an on-the-spot investigation, in accordance with Article 38 § 1 (a) of the Convention and Rule 42 § 2 (in the version then in force). The Court"s enquiries were directed towards ascertaining the relevant facts in order to be able to determine whether Moldova and the Russian Federation had jurisdiction, particularly over the situation in Transdniestria, relations between Transdniestria, Moldova and the Russian Federation and the applicants" conditions of detention.
The Court appointed four delegates, Mr G. Ress, Sir Nicolas Bratza, Mr J. Casadevall and Mr E. Levits, who heard witness evidence in {Chisinau} and Tiraspol from 10 to 15 March 2003. In {Chisinau} the witness evidence was taken at the headquarters of the OSCE mission in Moldova, which greatly assisted in the organisation of the hearings. In Tiraspol the Court"s delegates took evidence from the applicants and other witnesses resident in Transdniestria at Tiraspol No. 3 Prison, and from the witnesses belonging to the armed forces of the Russian Federation at the headquarters of the Russian Operational Group in the Transdniestrian region of Moldova ("the ROG").
13. In all, the delegates took evidence from 43 witnesses called by the parties and the Court. The head of the delegation allowed an application by three of the witnesses to remain anonymous and they were accordingly designated by the letters X., Y. and Z.
14. Seven other witnesses summoned to give evidence to the delegates did not appear. After the end of the hearings, at the delegates" request, the parties submitted written explanations of the reasons for these witnesses" failure to appear and the steps taken to transmit the Court"s summonses to them.
The following witnesses did not appear: Olga {Capatina}, who had been admitted to hospital just before the hearings, after being assaulted; Vladimir Gorbov and {Mikhail} Bergman, whom the respondent Governments said they had been unable to contact; Petru Godiac, whose absence has not been explained; Valeriu {Pasat}, who was not present in Moldovan territory; and lastly Valeriu Muravschi and Petru {Tabuica}, who have not given reasons for their absence.
15. A list of the witnesses who appeared before the delegates and a summary of their statements are to be found in the annex to the present judgment. A verbatim record of the witnesses" statements to the delegates was also produced by the Registry and included in the case-file.
(c) The documentary evidence
16. In addition to the observations of the parties and the witnesses" statements, the Court took account of the numerous documents submitted by the parties and the Transdniestrian authorities throughout the proceedings: letters from Mr Ilie {Ilascu}; statements and letters from Mr Andrei {Ivantoc}; documents from the Moldovan authorities concerning the investigations into the applicants" arrest and detention; written statements by witnesses, including Olga {Capatina} and Petru Godiac; documents concerning the applicants" trial in the "Supreme Court of the MRT" and the "pardon" granted to Mr {Ilascu}; documents and statements about Transdniestria and the present application from various administrative authorities in Moldova and the Russian Federation; press cuttings about statements made by politicians and other officials of the Russian Federation; official documents concerning the military presence of the Russian Federation in Transdniestria and resolution of the Transdniestrian conflict, including treaties and agreements between Moldova and Transdniestria and between the Russian Federation and Transdniestria, and video cassettes about the fighting in 1992 and the situation in Transdniestria.
17. The Court also consulted certain documents filed by the "Ministry of Justice of the MRT" through the OSCE mission in {Chisinau}, particularly extracts from the applicants" medical files and the registers recording the visits and parcels they had received in their places of detention. The respondent Governments also filed documents from the Commission responsible for supervising implementation of the agreement of 21 July 1992 ("the Joint Control Commission").
18. Lastly, the Court had access to a number of public documents about Transdniestria and the situation of the applicants from international organisations and bodies such as the OSCE, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ("the CPT"), the Parliamentary Assembly of the Council of Europe, the Council of Europe"s Commissioner for Human Rights and the Governing Council of the Inter-Parliamentary Union.
I. The applicants
19. The applicants, who were Moldovan nationals when the application was lodged, were born in 1952, 1955, 1961 and 1963 respectively. At the time when they lodged their application the applicants were detained in the Transdniestrian part of Moldova.
20. Although detained, Mr {Ilascu} was twice elected to the Moldovan Parliament, from 1994 to 2000. As a member of parliament, he was appointed to form part of the Moldovan delegation to the Parliamentary Assembly of the Council of Europe. On 4 October 2000 Mr {Ilascu} acquired Romanian nationality. In December 2000 he was elected to the Senate of the Romanian Parliament and appointed as a member of the Romanian delegation to the Parliamentary Assembly of the Council of Europe.
21. Mr {Lesco} and Mr {Ivantoc} acquired Romanian nationality in 2001.
22. Mr {Ilascu} was released on 5 May 2001; since then he has lived in Bucharest (Romania). The second and third applicants" homes are in {Chisinau} (Moldova), whereas the fourth applicant lives in Tiraspol (Transdniestria, Moldova). At present all three of them are detained in Tiraspol.
23. In view of the fact that, in the applicants" submission, it was impossible for them to apply to the Court directly, the application was lodged by their wives, Mrs Nina {Ilascu}, Mrs Tatiana {Lesco} and Mrs Eudochia {Ivantoc}, and by the fourth applicant"s sister, Mrs Raisa Petrov-Popa.
24. The second applicant was represented before the Court by Mr Alexandru {Tanase}, of the {Chisinau} Bar. The other applicants were represented by Mr Corneliu Dinu, of the Bucharest Bar, until his death in December 2002. Since January 2003 they have been represented by Mr Vladislav Gribincea, of the {Chisinau} Bar.
II. Establishment of the facts
25. In order to establish the facts the Court based itself on documentary evidence, the observations of the parties and the statements of the witnesses who gave evidence on the spot, in {Chisinau} and Tiraspol.
26. In assessing the evidence for the purpose of establishing the facts, the Court considers that the following elements are relevant.
(i) In assessing both written and oral evidence the Court has hitherto generally applied "beyond a reasonable doubt" as the standard of proof required. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact; in addition, the conduct of the parties in relation to the Court"s efforts to obtain evidence may constitute an element to be taken into account (see, mutatis mutandis, Ireland v. the United Kingdom, judgment of 18 January 1978, Series

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