ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 08.07.2004<ДЕЛО ИЛАШКУ И ДРУГИЕ (ilascu and others) ПРОТИВ МОЛДАВИИ И РОССИИ> [англ.](Вместе с <КРАТКИМ ИЗЛОЖЕНИЕМ ЗАЯВЛЕНИЙ СВИДЕТЕЛЕЙ ПЕРЕД СУДЕБНЫМИ ПРЕДСТАВИТЕЛЯМИ>)


EUROPEAN COURT OF HUMAN RIGHTS
CASE OF {ILASCU} <*> AND OTHERS v. MOLDOVA AND RUSSIA
(Application No. 48787/99)
JUDGMENT <**>
(Strasbourg, 8.VII.2004)
In the case of {Ilascu} and Others v. Moldova and Russia,
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<*> 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:
INTRODUCTION
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.
PROCEDURE
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.
THE FACTS
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 A No. 25, pp. 64 - 65, § 161; and Salman v. Turkey [GC], No. 21986/93, § 100, ECHR 2000-VII).
(ii) As regards the statements taken down by the delegates, the Court is aware of the difficulties that may arise in assessing such depositions obtained through interpreters: it has therefore paid particular attention to the meaning and weight to be given to the witnesses" statements to the delegates. The Court is likewise aware that a large number of relevant facts concern events which took place more than ten years ago in an obscure and particularly complex context, which makes some degree of imprecision about dates and other details inevitable. It does not consider that that in itself can cast doubt on the credibility of the witness evidence.
(iii) In a case where there are contradictory and opposing accounts of the facts the Court is inevitably confronted with difficulties which any court of first instance is bound to meet when seeking to establish the facts, regard being had, for example, to the fact that it does not have direct and detailed knowledge of the conditions obtaining in the region. Moreover, the Court has no powers to compel witnesses to appear. In the present case, out of 51 witnesses called, seven did not appear before the delegates. Consequently, the Court found itself having to deal with the difficult task of establishing the facts in the absence of potentially important depositions.
27. With the assistance of the parties, the Court conducted an on-the-spot investigation, in the course of which it took evidence from the following forty-three witnesses:
(a) on the particular circumstances of the applicants" arrest, conviction and detention: the applicants; Mrs Tatiana {Lesco} and Mrs Eudochia {Ivantoc}, the wives of the second and third applicants; Mrs Raisa Petrov-Popa, the sister of the fourth applicant; Mr {Stefan Uritu}, detained in 1992 with the applicants; Mr Constantin {Tibirna}, a doctor who examined the applicants in 1995 - 1998 while they were detained in Tiraspol and Hlinaia; Mr Nicolae {Lesanu}, a doctor who examined the applicants in 1995 - 1997 while they were detained in Tiraspol and Hlinaia; Mr Vladimir Golovachev, the governor of Tiraspol No. 2 Prison; Mr Stepan Tcherbebchi, the governor of Hlinaia Prison from 1992 to 2001; Mr Sergey Kotovoy, the governor of Hlinaia Prison; Mr Yefim Samsonov, "Director of the Prison Medical Service of the MRT"; and Mr Vasiliy Semenchuk, a doctor at Hlinaia Prison since 1995;
(b) on the measures taken by Moldova to secure the applicants" release and on relations between Moldova, the Russian Federation and Transdniestria, various Moldovan officials and politicians: Mr Dumitru Postovan, Attorney-General of Moldova from 1990 until July 1998; Mr Valeriu {Catana}, Attorney-General of Moldova from 31 July 1998 to 29 July 1999; Mr Vasile Rusu, Attorney-General of Moldova since 18 May 2001; Mr Vasile Sturza, Deputy Attorney-General of Moldova from 1990 to 1994 and Minister of Justice from 1994 to 1998; Z., a former Moldovan Government Minister; Mr Victor Vieru, Deputy Minister of Justice since 2001; X., a former Moldovan senior official; Mr Mircea Snegur, President of Moldova from 1990 to 1996; Mr Alexandru {Mosanu}, President of the Moldovan Parliament from 1990 to 1992; Y., a former Moldovan diplomat; Mr Andrei Sangheli, Prime Minister of Moldova from 1992 to 1997; Mr Anatol Plugaru, Moldova"s Minister of Security in 1991 - 1992; Mr Nicolai {Petrica}, General in the Moldovan army from 1992 to 1993; Mr Andrei Stratan, former director of Customs; Mr Vladimir Molojen, director of the Information Technology Department; Mr Ion {Costas}, Minister of Defence in 1991 - 1992; Mr Valentin Sereda, Director of the Moldovan Prisons Service; Mr Victor Berlinschi, member of the Moldovan Parliament from 1990 to 1994; Mr Constantin Obroc, Deputy Prime Minister in 1991 - 1992 and adviser to the President of Moldova from 1993 to 1996; Mr Mikhail Sidorov, member of the Moldovan Parliament; and Mr Pavel {Creanga}, Moldovan Minister of Defence from 1992 to 1997;
(c) on the presence of the ROG and the Russian Federation"s peacekeeping troops in the Transdniestrian region of Moldova, soldiers from those units: General Boris Sergeyev, commander of the ROG; Colonel Alexander Verguz, officer commanding the ROG; Lieutenant-Colonel Vitalius Radzaevichus, former member of the command structure of the ROG; Colonel Anatoliy Zverev, commander of the Russian Federation"s peacekeeping troops in the Transdniestrian region of Moldova; Lieutenant-Colonel Boris Levitskiy, president of the military tribunal attached to the ROG; Lieutenant-Colonel Valeriy Shamayev, military prosecutor attached to the ROG; and Vasiliy Timoshenko, former military prosecutor attached to the Fourteenth Army and the ROG.
III. The general background to the case
A. The dissolution of the USSR
and the Moldovan-Transdniestrian conflict over
the break-away of Transdniestria
1. The dissolution of the USSR, the break-away
of Transdniestria and Moldovan independence
28. The Moldavian Soviet Socialist Republic, which was set up by a decision of the Supreme Soviet of the USSR on 2 August 1940, was formed from a part of Bessarabia taken from Romania on 28 June 1940 following the Molotov-Ribbentrop pact between the USSR and Germany, where the majority of the population were Romanian speakers, and a strip of land on the left bank of the Dniester in Ukraine (USSR), Transdniestria, which was transferred to it in 1940 and is inhabited by a population whose linguistic composition in 1989, according to publicly available information, was 40% Moldavian, 28% Ukrainian, 24% Russian and 8% others. Russian became the new Soviet republic"s official language. In public life the Soviet authorities imposed the use of Cyrillic script for written Romanian, which thus became "Moldavian" and took second place after Russian <*>.
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<*> Extracts from an information document of 10 June 1994 produced by the OSCE Conflict Prevention Centre on the subject of the Transdniestrian conflict. The document concerned, published in English on the Internet portal of the OSCE mission to Moldova, is entitled "Transdniestrian conflict: origins and main issues".
29. In August and September 1989 the Moldavian Supreme Soviet enacted two laws introducing the Latin alphabet for written Romanian (Moldavian) and making that language the country"s first official language, in place of Russian.
On 27 April 1990 the Supreme Soviet adopted a new tricolour flag (red, yellow and blue) with the Moldavian heraldic device and a national anthem which, at that time, was the same as Romania"s. In June 1990, against a background of autonomist and independence movements within the Soviet Union, the Moldavian Soviet Socialist Republic took as its new name the Moldovan Soviet Socialist Republic. It proclaimed its sovereignty on 23 June 1990 (extracts from the OSCE document of 10 June 1994, see note to paragraph 28 above).
On 23 May 1991 the Moldovan Soviet Socialist Republic changed its name to the Republic of Moldova.
30. On 2 September 1990 the "Moldavian Republic of Transdniestria" ("the MRT") was proclaimed. On 25 August 1991 the "Supreme Council of the MRT" adopted the declaration of independence of the "MRT".
To date, the "MRT" has not been recognised by the international community.
31. On 27 August 1991 the Moldovan Parliament adopted the Declaration of Independence of the Republic of Moldova, whose territory included Transdniestria. At that time the Republic of Moldova did not have its own army and the first attempts to create one took place a few months later. The Moldovan Parliament asked the Government of the USSR "to begin negotiations with the Moldovan Government in order to put an end to the illegal occupation of the Republic of Moldova and withdraw Soviet troops from Moldovan territory".
32. After the declaration of independence of the Republic of Moldova the Fourteenth Army of the military district of Odessa of the Ministry of Defence of the USSR ("the Fourteenth Army"), whose headquarters had been in {Chisinau} since 1956, remained in Moldovan territory. Large-scale movements of equipment were nevertheless reported from 1990 onwards: among other transfers, large quantities of equipment began to be withdrawn from Moldovan territory.
33. During 1991 the Fourteenth Army was composed of several thousand soldiers, infantry units, artillery (notably an anti-aircraft missile system), armoured vehicles and aircraft (including planes and strike helicopters), and had a number of ammunition stores, including one of the largest in Europe at Kolbasna in Transdniestria.
34. In addition to the weaponry of the Fourteenth Army, DOSAAF, "The Voluntary Association for Assistance to the Army, Air Force and Navy" (ДОСААФ - Добровольное Общество Содействия Армии Авиации и Флоту), situated in Moldovan territory, a State organisation set up in 1951 to prepare the civilian population for war, had a stock of ammunition.
After the proclamation of Moldova"s independence the DOSAAF equipment situated in that part of the national territory controlled by the Moldovan Government passed into their hands and the remainder - located in Transdniestria - passed into those of the Transdniestrian separatists.
35. On 6 September 1991 the "Supreme Soviet of the Moldavian Republic of Transdniestria" issued an order placing all establishments, enterprises, organisations, militia units, public prosecutors" offices, judicial bodies, KGB units and other services in Transdniestria, with the exception of military units belonging to the Soviet armed forces, under the jurisdiction of the "Republic of Transdniestria". Officers, non-commissioned officers, and other ranks of military units stationed in Transdniestria were urged to "show civic solidarity and mobilise to defend the Republic of Transdniestria alongside workers" representatives in the event of invasion from Moldova."
36. On 18 September 1991 the "President of the Supreme Soviet of the Moldavian Soviet Socialist Republic of Transdniestria" decided to place the units of the Soviet armed forces deployed in Transdniestria under the jurisdiction of the "Republic".
37. By Decree No. 234 of 14 November 1991 the President of Moldova, Mr Snegur, 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.
38. On 8 December 1991 Belarus, the Russian Federation and Ukraine signed the Minsk Agreement, noting the end of the Soviet Union"s existence and setting up the Commonwealth of Independent States ("the CIS" - see paragraph 290 below).
39. On 21 December 1991 eleven member States of the USSR, including Moldova and Ukraine, signed the Alma-Ata Declaration, which confirmed and extended the Minsk Agreement setting up the CIS. The Alma-Ata Declaration also confirmed that, through the establishment of the CIS, the USSR had ceased to exist and that the CIS was neither a State nor a supra-State entity. A Council of the Heads of Government of the CIS was also set up and decided to support Russia as the successor to the USSR at the United Nations, including the USSR"s place on the Security Council, and in other international organisations.
40. On 30 January 1992 the Republic of Moldova became a member of the Conference on Security and Co-operation in Europe (CSCE). On 2 March 1992 it was admitted to the United Nations.
41. On 8 April 1994 the Moldovan Parliament ratified, with certain reservations, the treaty providing for Moldova"s accession to the CIS, signed by the Moldovan President at Alma-Ata on 21 December 1991 (see paragraph 293).
2. The armed conflict (1991 to 1992)
42. The statements made to the Court"s delegates during the on-the-spot investigation have confirmed that military operations took place during the conflict (see Annex, Mr {Uritu}, §§ 64 - 66 and 69 - 71, X., §§ 218 and 220, Mr Snegur, §§ 230 and 238, Mr {Mosanu}, §§ 243 - 245, Y., § 254, Z., §§ 271 and 277 - 281, General {Petrica}, §§ 296 - 297 and 299, Mr {Costas}, §§ 401, 405 - 407 and 409, and Mr {Creanga}, §§ 457 - 460); these military operations are also attested to by other documents in the file.
The respondent Governments did not contest the veracity of the detailed information set out below, although they gave different interpretations of the facts (see paragraphs 50, 57, 60, 62 and 63 below).
43. From 1989 onwards movements of resistance to Moldovan independence began to organise in southern Moldova (Gagauzia) and the east of the country (Transdniestria).
44. Armed clashes on a limited scale broke out between the Transdniestrian separatists and the Moldovan police as early as November 1990 in eastern Moldova, at {Dubasari}, on the left bank of the Dniester.
45. During the following months the Transdniestrian authorities created paramilitary units called "workers" detachments", on the basis of which a professional and fully-equipped "Republican Guard" was formed in 1991 (see the previously cited OSCE document of 10 June 1994, note to paragraph 28 above).
46. The applicants alleged that on 19 May 1991 the USSR"s Minister of Defence had ordered the commander of the Fourteenth Army, General Netkachev, to call up reservists to make up the complement of the Fourteenth Army troops deployed in Transdniestria and to put these troops and their military equipment on a combat footing. He allegedly justified that order in the following terms: "Given that Transdniestria is Russian territory and that the situation there has deteriorated, we must defend it by all means possible".
47. On 1 December 1991 a presidential election - declared illegal by the Moldovan authorities - was organised in the provinces (raioane) on the left bank of the Dniester (Transdniestria). Mr Igor Smirnov was elected "President of the MRT".
48. By a decree of 5 December 1991 Mr Smirnov decided "[to place] the military units, attached for the most part to the Odessa military district, deployed in the Moldavian Republic of Transdniestria under the command of the Head of the National Defence and Security Department of the Republic of Transdniestria". The Head of that Department, Mr Gennady I. Iakovlev, who was also the commander of the Fourteenth Army (see paragraph 53 below), was requested to take all necessary measures to put an end to transfers and handovers of weaponry, equipment and other property of the Soviet Army in the possession of the military units deployed in Transdniestria. The declared aim of that measure was to preserve, for the benefit of the Transdniestrian separatist regime, the weapons, equipment and assets of the Soviet army in Transdniestria.
49. In December 1991 the Moldovan authorities arrested Lieutenant-General Iakovlev in Ukrainian territory, accusing him of helping the Transdniestrian separatists to arm themselves by using the weapons stocks of the Fourteenth Army. He was taken to Moldovan territory for the purposes of the investigation.
50. According to the applicants, Lieutenant-General Iakovlev was arrested by the Moldovan authorities and accused of arming the separatists. After his arrest he had allegedly made statements confirming the Russian Federation"s intervention in the conflict and its support for Transdniestria and these had been recorded on about ten cassettes. However, they contended that Lieutenant-General Iakovlev had been released as a result of the intercession with the Moldovan authorities of a Russian general, Nicolai Stolyarov, who had travelled from Moscow to {Chisinau} for that precise purpose.
The Moldovan Government did not comment on this point.
Although several witnesses made the assertion (see Annex, Mr {Uritu}, § 66, Mr Postovan, § 182, Z., § 272, and Mr Plugaru, § 286), the Court cannot accept that it has been established beyond a reasonable doubt that General Iakovlev was released in exchange for a number of a Moldovan police officers held prisoner by the Transdniestrian forces. It has heard different accounts of the exact reasons for General Iakovlev"s release and, in the absence of any documentary evidence about what took place during the investigation or about his release, it can neither dismiss nor accept the accounts of the witnesses, most of whom, in the delegates" opinion, were generally credible.
On the other hand, the Court notes that all the witnesses questioned on the subject agreed that a Russian general had travelled from Moscow to {Chisinau} to obtain General Iakovlev"s release.
The Court accordingly considers it to be established beyond a reasonable doubt that the authorities of the Russian Federation interceded with the Moldovan authorities to obtain the release of General Iakovlev.
51. 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.
52. The applicants referred to a number of facts which gave a precise indication of the course of the fighting. These facts were not contested by the respondent Governments or rebutted by the witness evidence taken by the delegates during the on-the-spot investigation.
53. On 6 December 1991, in an appeal to the international community and the United Nations Security Council, the President of the Republic of Moldova, Mircea Snegur, the President of the Moldovan Parliament, Alexandru {Mosanu}, and the Prime Minister, Valeriu Muravschi, protested against the occupation, on 3 December 1991, of the Moldovan towns of Grigoriopol, {Dubasari}, Slobozia, Tiraspol and {Ribnita}, situated on the left bank of the Dniester, by the Fourteenth Army, which had been under the command of Lieutenant-General Iakovlev since a date which has not been specified. They accused the authorities of the USSR, particularly the Ministry of Defence, of having prompted these acts. The soldiers of the Fourteenth Army were accused of distributing military equipment to the Transdniestrian separatists and organising the separatists into military detachments which were terrorising the civilian population.
54. By a decree of 26 December 1991, Mr Smirnov, the "President of the MRT", created the "armed forces of the MRT" from troops and formations stationed in the territory of the "MRT", with the exception of the armed forces making up the "Strategic Peacekeeping Forces".
55. In January 1992 Lieutenant-General Iakovlev was relieved of command of the Fourteenth Army by the command of the combined armed forces of the CIS. By a decision of 29 January 1992 of the commander-in-chief of the joint armed forces of the CIS, Lieutenant-General Iakovlev was placed at the disposal of the Military Registration Bureau of the Primorski district of the city of Odessa (Ukraine).
56. In 1991 - 92, during clashes with the Moldovan security forces, a number of military units of the USSR, and later of the Russian Federation, went over with their ammunition to the side of the Transdniestrian separatists, and numerous items of the Fourteenth Army"s military equipment fell into separatist hands.
The parties disagreed about how these weapons came to be in the possession of the Transdniestrians.
57. The applicants submitted that the Fourteenth Army had armed the separatists in two ways: firstly, ammunition stores belonging to the Fourteenth Army had been opened up to the separatists; secondly, Fourteenth Army personnel had offered no resistance when separatist militiamen and civilians tried to seize military equipment and ammunition. For example, no force had been used against the Committee of Transdniestrian women, led by Galina Andreeva.
The Court notes the explanation given by an ROG officer (see Annex, Colonel Verguz, § 359) about the forcible seizure of weapons by women and children and observes that this account was contested by all the Moldovan witnesses questioned on the subject.
The Court considers it highly improbable that women and children could have seized weapons and ammunition guarded by armed military personnel in locked stores without the guards" agreement.
In short, the Court considers it to have been established beyond a reasonable doubt that Transdniestrian separatists were able to arm themselves with weapons taken from the stores of the former Fourteenth Army stationed in Transdniestria. The Fourteenth Army troops chose not to oppose the separatists who had come to help themselves from the Army"s stores; on the contrary, in many cases they helped the separatists equip themselves by handing over weapons and by opening up the ammunition stores to them (see Annex, Mr {Uritu}, § 65, Mr Petrov-Popa, § 130, Mr Postovan, §§ 182 and 201, Mr {Costas}, § 407 and Mr {Creanga}, § 457).
58. The applicants asserted that Fourteenth Army troops had joined the separatist side with the evident approval of their superiors.
59. The Fourteenth Army"s Parcani sapper battalion, under the orders of General Butkevich, had gone over to the separatist side. That information had been confirmed by the Russian Government. The applicants went on to say that at the time of this "transfer" the sappers were in possession of a considerable number of Kalashnikov rifles, cartridges, TT and Makarov pistols, grenades and grenade-launchers and air-to-ground rocket-launchers. It was the Parcani battalion which had destroyed the bridges at {Dubasari}, Gura {Bacului-Bacioc} and {Cosnita}.
The applicants further asserted that on 20 July 1992 armoured combat vehicles, mine-throwers, battle tanks and armoured transport vehicles were transferred from Fourteenth Army units to the separatists. In addition, during the fighting, eight Fourteenth Army helicopters had taken part in transporting ammunition and wounded on the separatist side.
In a written statement sent to the Court by Mr {Lesco"s} representative on 19 November 2001, Mrs Olga {Capatina}, a former volunteer attached to the Moldovan Ministry of National Security from 15 March to 15 August 1992, said that during that period, as evidenced by a certificate issued by the Ministry, she had worked for the general staff of the Russian Army, at the Fourteenth Army"s command and espionage centre, under the name of Olga Suslina. While working there she had sent the Moldovan Ministry of National Security hundreds of documents confirming the participation of Russian troops in the armed operations and the massive contribution of weapons they had made. She had also gathered information proving that the separatists" military operations were directed by the Fourteenth Army, which coordinated all its actions with the Ministry of Defence of the Russian Federation.
60. The applicants asserted that thousands of Russian Cossacks had come from Russia to fight alongside the separatists; the Union of Cossacks, a Russian association, had been recognised by the Russian authorities. They alleged that the arrival of the Cossacks from Russia had not been hindered in any way by the Russian authorities, in spite of the appeal to them made by the Moldovan President, Mr Snegur. On the contrary, Fourteenth Army officers had welcomed nearly 800 Cossacks at the beginning of March 1992 and armed them. The applicants asserted in that connection that whereas in 1988 there had been no Cossacks in Moldovan territory, nearly 10,000 Cossacks who had come from the Russian Federation were now living in Transdniestrian territory.
The Russian Government submitted that Cossacks could be found in other parts of the world and that everyone had the right to freedom of movement.
The Court notes that several documents in the file and statements taken down by the delegates show that large numbers of Cossacks and other Russian nationals went to Transdniestria to fight alongside the separatists. It further notes that the Russian Government have not denied this.
The Court accordingly considers it to be established beyond a reasonable doubt that large numbers of Russian nationals went to Transdniestria to fight in the ranks of the Transdniestrian separatists against the Moldovan forces.
61. In a book published in 1996 by the publishing house Vneshtorgizdat and entitled "General Lebed - Russian Enigma" the author, Vladimir Polushin, supplies plentiful evidence, backed up by documentary sources, of the support given by the Russian Federation to the Transdniestrian separatists. The book mentions, for example, the creation by General Lebed of the Russo-Transdniestrian joint defence headquarters and the participation by the Fourteenth Army in the military operations conducted by the Transdniestrian forces against the Moldovan "enemy".
Referring to this book, the applicants mentioned by way of example the destruction of a Moldovan unit by the Fourteenth Army at {Chitcani} on 30 June 1992 and the shelling by the Fourteenth Army of several Moldovan positions at {Cosnita}, {Dubasari}, Slobozia and {Harbovat} between 1 June and 3 July 1992.
The other parties did not comment on the information given in the book.
62. The applicants further submitted that the bridge abutments on the left bank of the Dniester had been mined by Fourteenth Army personnel.
The Court notes that one witness, directly involved at the highest level in the military operations during the conflict, asserted that part of the territory on the left bank of the Dniester had been mined, that this work had been done by specialists and that after the end of the conflict the Moldovan Army had had to have recourse to foreign specialists in order to demine the area (see Annex, Mr {Costas}, § 406). That information was not disputed by the other parties.
Taking account of the witness"s credibility also, the Court can take it to be established that part of Moldovan territory situated on the left bank of the Dniester was mined by the forces opposing the Moldovan Army. On the other hand, it notes that this witness was unable to assert categorically that the mines had been laid by Fourteenth Army personnel, but merely contended that logically work of such a technical level could only have been carried out by professionals, that is by Fourteenth Army troops. It likewise notes that this witness asserted that the separatists had seized possession of anti-personnel mines previously held in the Fourteenth Army"s stores. In the circumstances, the Court considers that this assertion is not certain "beyond a reasonable doubt" and therefore cannot take it as established that it was Fourteenth Army or ROG personnel who laid mines on the left bank of the Dniester.
63. The Moldovan Government asserted that they had never claimed that the army of the Russian Federation had been legally stationed in Moldovan territory, or that the Fourteenth Army had not intervened in the Transdniestrian conflict.
On the contrary, they asserted, as appeared from the witness evidence taken by the Court"s delegates, that the Fourteenth Army had intervened actively, both directly and indirectly, in the Transdniestrian conflict, against the armed forces of Moldova. The Transdniestrian separatists had been able to arm themselves with weapons belonging to the Fourteenth Army and with the Fourteenth Army"s complicity. The Moldovan Government considered that no faith could be placed in assertions that women had forcibly seized weapons and ammunition from the Fourteenth Army"s stores. Moreover, not a single Russian soldier had subsequently been disciplined for negligence or complicity in the seizure of equipment from the Fourteenth Army"s stores.
64. The Russian Government argued that the former Fourteenth Army had been in Moldova when the Transdniestrian conflict broke out. The Russian military forces as such had taken no part whatsoever in the fighting and had not been involved in the acts complained of. However, where illegal armed operations had been carried out against soldiers of the former Fourteenth Army appropriate measures had been taken in accordance with international law. In general, the Russian Government were prepared to accept as a hypothesis that individuals claiming allegiance to the former Fourteenth Army might have taken part in the acts in issue, but emphasised that if that had been the case such conduct would have constituted a gross breach of Russian legislation, for which the individuals responsible would have been punished.
The Russian Government went on to say that the Russian Federation had remained neutral in the conflict. In particular, it had not supported the combatants in any way, whether militarily or financially.
65. The Court notes that all the Moldovan witnesses questioned categorically confirmed the active involvement, whether direct or indirect, of the Fourteenth Army, and later of the ROG, in the transfer of weapons to the Transdniestrian separatists. They also confirmed the participation of Russian troops in the conflict, particularly the involvement of tanks bearing the flag of the Russian Federation, shots fired towards the Moldovan positions from units of the Fourteenth Army and the transfer of a large number of Fourteenth Army troops to the reserve so that they could fight alongside the Transdniestrians or train them (see Annex, Mr {Costas}, § 406, Mr {Creanga}, § 457).
These assertions are corroborated by the information contained in OSCE report No. 7 of 29 July 1993, added to the file by the Romanian Government, and by other sources (see Annex, Mr {Mosanu}, § 244). In that connection, the Court notes both the abundance and the detailed nature of the information in its possession on this subject.
It sees no reason to doubt the credibility of the Moldovan witnesses heard and notes that their assertions are corroborated by the Moldovan Government, who confirmed these facts in all of the observations they submitted throughout the proceedings.
As to the Russian Government"s allegation that the witnesses belonged to political circles opposed to the Russian Federation, the Court notes that this has not been substantiated.
Moreover, it is not possible for the Court to determine precisely on the basis of the statements taken what the relative strengths of the combatants were. However, regard being had to the support given by the troops of the Fourteenth Army to the separatist forces and the massive transfer of arms and ammunition from the Fourteenth Army"s stores to the separatists, it is certain that the Moldovan army was in a position of inferiority which prevented it from regaining control of Transdniestria (see Annex, Z., § 271, Mr {Costas}, § 401).
66. On 5 March 1992 the Moldovan Parliament protested against the silence of the Russian authorities, amounting to complicity in Parliament"s view, about the support allegedly given to the Transdniestrian separatists by armed groups of Cossacks from Russia, belonging to the Union of Cossacks, an association recognised by the Russian authorities. The Moldovan Parliament asked the Supreme Soviet of the Russian Federation to intervene with a view to securing the immediate withdrawal of the Russian Cossacks from Moldovan territory.
67. On 23 March 1992 the Ministers of Foreign Affairs of Moldova, the Russian Federation, Romania and Ukraine met in Helsinki, where they adopted a declaration laying down a number of principles for the peaceful settlement of the conflict. At further meetings held in April and May 1992 in {Chisinau} the four Ministers decided to set up a Quadripartite Commission and a group of military observers to supervise observance of any ceasefire.
68. On 24 March 1992 the Moldovan Parliament protested about interference by the Russian Federation in Moldovan affairs after the Presidium of the Supreme Soviet of the Russian Federation had issued a declaration on 20 March 1992 recommending to Moldova solutions for the settlement of the Transdniestrian conflict consistent with respect for the rights of the "Transdniestrian people".
69. On 28 March 1992 the President of the Republic of Moldova, Mr Snegur, decreed a state of emergency. He noted that "adventurers" had created on the left bank of the Dniester, "not without outside help", a "pseudo-State", and that, "armed to the teeth with the most up-to-date equipment of the Soviet army", they had unleashed armed conflict, doing everything they could to bring about the intervention in the conflict of the Fourteenth Army of the combined armed forces of the CIS. Under the state of emergency the Moldovan Ministries of National Security and of the Interior and other relevant bodies, acting in concert with the units of the Moldovan army, were ordered by the President to take all necessary measures to break up and disarm illegally armed formations and seek out and bring to justice all those who had committed crimes against the organs of the State and the population of the Republic. The founders of the "so-called Moldavian Republic of Transdniestria" and their accomplices were enjoined to dissolve illegal armed formations and surrender to the organs of the Republic.
70. By Decree No. 320 of 1 April 1992 the President of the Russian Federation placed the military formations of the former USSR stationed in Moldovan territory, including those on the left bank of the Dniester, under the jurisdiction of the Russian Federation, so that the Fourteenth Army became the Russian Operational Group in the Transdniestrian region of the Republic of Moldova ("the ROG" or "the former Fourteenth Army").
71. By Decree No. 84 of 1 April 1992 the "President of the MRT", Mr Smirnov, relieved Lieutenant-General Iakovlev of command of the "Defence and Security Department of the MRT".
72. On 2 April 1992 General Netkachev, the commander of the ROG (the former Fourteenth Army), 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.
73. The applicants alleged that after that ultimatum from General Netkachev joint military exercises between the Fourteenth Army and the separatists began on the former"s shooting range in Tiraspol.
74. On 4 April 1992 the Moldovan President, Mr Snegur, sent a telegram to the heads of State of the member countries of the CIS, to the commander of the combined armed forces of the CIS and the commander of the Fourteenth Army, drawing their attention to the fact that the Fourteenth Army was failing to remain neutral.
75. On 5 April 1992 Alexander Rutskoy, the Vice-President of the Russian Federation, went to Tiraspol. As evidenced by the press articles the applicants submitted to the Court, which have not been contested by the other parties, Mr Rutskoy first visited a military unit of the Fourteenth Army and then went to Tiraspol"s central square, in the company of Mr Smirnov. In a speech to the five thousand people present Mr Rutskoy declared that Mr Snegur did not wish to engage in dialogue and that the best solution would be a confederation in which Moldovans and Russians would live together on an equal footing. Lastly, he said that the Fourteenth Army should act as a buffer between the combatants so that the Transdniestrian people could obtain their independence and their sovereignty and work in peace.
76. By Order No. 026 of 8 April 1992 from the commander-in-chief of the combined armed forces of the CIS it was decided that only troops and units of the former Fourteenth Army stationed in the territory of the former Moldovan Soviet Socialist Republic could form the basis for the creation of the armed forces of the Republic of Moldova.
Three military units which had been part of the Fourteenth Army decided to join the new army of the Republic of Moldova. These were a unit at {Floresti} (ammunition store No. 5381), the 4th artillery regiment at Ungheni and the 803rd rocket artillery regiment at Ungheni.
The soldiers of the 115th independent battalion of sappers and firemen of the former Fourteenth Army refused to enlist in the armed forces of Moldova and "placed themselves under the jurisdiction of the Transdniestrian region", according to the terms used by the Russian Government.
77. In a message sent in April 1992 to the commander-in-chief of the combined armed forces of the CIS the President of Moldova, Mr Snegur, declared that the events in Transdniestria were prompted and supported by "the imperial and pro-communist structures of the former USSR and their legal successors" and that the former Fourteenth Army had not been neutral in the conflict. In that connection he emphasised that the Transdniestrian military formations were equipped with modern weapons which had belonged to the former Soviet army and that large numbers of Russian citizens had taken part in the conflict on the separatist side as mercenaries.
78. In a letter sent in April 1992 to the leaders of the member countries of the United Nations Security Council, the OSCE and the CIS, Mr Snegur accused the commander of the Fourteenth Army of arming the Transdniestrian units in December 1991 and complained of the attitude of the 6th Congress of Deputies of the Russian Federation, which had called for the continuing presence in Moldova of units of the army of the Russian Federation as "pacification forces". Lastly, Mr Snegur observed that one essential condition for the peaceful settlement of the Transdniestrian conflict was the rapid withdrawal of the army of the Russian Federation from Moldovan territory, and asked the international community to support the young Moldovan State in its struggle for freedom and democracy.
79. On 20 May 1992 the President of the Moldovan Parliament protested against the occupation of further parts of Transdniestria on 19 May 1992 by the forces of the former Fourteenth Army, backed up by Cossack and Russian mercenaries and by Transdniestrian paramilitary forces. His statement pointed out that this military aggression on the part of the Russian Federation violated Moldova"s sovereignty and all the rules of international law, making the negotiations then in progress to find a solution to the conflict in Transdniestria a sham. The President accused the Russian Federation of arming the Transdniestrian separatists and asked the Supreme Soviet of the Russian Federation to call a halt to the aggression and withdraw Russian military forces from Moldovan territory.
80. This protest was also directed against speeches deemed to be "full of aggression" towards Moldova made in Tiraspol and Moscow by Mr Rutskoy, the Vice-President of the Russian Federation, and against a statement made on 19 May 1992 by the Military Council of the ROG.
81. On 26 May 1992 the Moldovan Parliament sent a letter to the Supreme Soviet of Ukraine expressing its gratitude to the Ukrainian authorities, who had declined to join in the occupation of 19 May 1992.
82. On 22 June 1992 the Moldovan Parliament appealed to the international community, opposing the "new aggression perpetrated in Transdniestria on 21 June 1992 by the forces of the former Fourteenth Army" and complaining that its actions of destruction and pillage had driven large numbers of civilians to flee their homes. The international community was urged to send experts to Transdniestria to halt the "genocide" of the local population which had been set in motion.
83. On 23 June 1992 the President of Moldova, Mr Snegur, asked the Secretary-General of the United Nations, Mr Boutros Boutros-Ghali, to inform the members of the UN Security Council of the "assault on the town [of Tighina] by the Fourteenth Army", which he viewed as "direct and brutal" interference in the Republic of Moldova"s internal affairs. He also expressed his concern about the statements of the President of the Russian Federation, Mr Yeltsin, and its Vice-President, Mr Rutskoy, "which clearly show[ed] that the Russian Federation [was] not prepared to abandon the "rights" it no longer possess[ed], either de jure or de facto, over a territory that no longer belong[ed] to it after the dismemberment of the Soviet empire". Mr Snegur concluded: "The threats recently repeated against the legal leaders of the Republic of Moldova, an independent and sovereign State, by the Russian authorities are a cause for concern to the Moldovan public, since they seem to prefigure other means of interference in our internal affairs, that is means and methods specific to the Soviet communist imperialist system..."
84. In the first half of July 1992 intense discussions took place within the CIS about the possibility of deploying a CIS peacekeeping force in Moldova. Mention was made in that connection of an agreement signed in Minsk in March 1992 concerning groups of military observers and joint CIS peacekeeping forces.
85. At a CIS meeting held in Moscow on 6 July 1992 it was decided to deploy in Moldova, as a preliminary step, a CIS peacekeeping force made up of Russian, Ukrainian, Belarusian, Romanian and Bulgarian troops, on condition that Moldova requested this. Although the Moldovan Parliament made such a request the next day, the force was never deployed since some countries had had second thoughts about their agreement to join a CIS force.
86. On 10 July 1992, at the Helsinki Summit of the CSCE, the President of Moldova, Mr Snegur, asked for consideration to be given to the possibility of applying the CSCE peacekeeping mechanism to the Moldovan situation. That was not done because there was not an effective and lasting ceasefire (see the previously cited OSCE document of 10 June 1994, note to paragraph 28 above).
87. On 21 July 1992 the President of the Republic of Moldova, Mr Snegur, and the President of the Russian Federation, 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" - see paragraph 292 below).
The copy submitted to the Court by the Moldovan Government bears the signatures of Mr Snegur and Mr Yeltsin only. The Russian Government supplied the Court with a copy bearing the signatures of Mr Snegur and Mr Yeltsin, as the Presidents of Moldova and the Russian Federation respectively. Underneath the signature of Mr Snegur that copy also bears the signature of Mr Smirnov, without any indication of his status.
Mr Smirnov"s signature is not on the copy submitted by the Moldovan Government. In his statement to the Court"s delegates, Mr Snegur confirmed that the official document in two copies was signed by him and Mr Yeltsin only (see Annex, Mr Snegur, § 228).
As appears from the witness evidence given to the Court, the broad lines of the agreement were drafted by the Russian side, which presented it for signature to the Moldovans (see Annex, Z., § 281).
88. The Russian Government argued that under the terms of Article 4 of the agreement of 21 July 1992 the Russian Federation signed the agreement not as a party to the conflict but as a peace-broker.
89. 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).
90. 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 (Bender).
The agreement also provided for peacekeeping forces 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.
91. 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 the former Fourteenth Army of the Russian Federation, 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.
Lastly, 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).
3. Events after the armed conflict
92. On 29 July 1994 Moldova adopted a new Constitution. Among its other provisions it states that Moldova is neutral, prohibits the stationing in its territory of troops belonging to other States and holds out the possibility of a form of autonomy for regions which include some areas on the left bank of the Dniester (see paragraph 294 below).
93. On 21 October 1994 Moldova and the Russian Federation signed an agreement concerning the legal status of the military formations of the Russian Federation temporarily present in the territory of the Republic of Moldova and the arrangements and time-limits for their withdrawal (see paragraph 296 below).
Article 2 of the agreement provided that the withdrawal of the Russian army from Moldovan territory was to be synchronised with the political settlement of the Transdniestrian conflict and the establishment of special status for the "Transdniestrian region of the Republic of Moldova".
This agreement was not ratified by the authorities of the Russian Federation and so never came into force (see paragraph 115 below).
94. The applicants submitted that the Russian peacekeeping forces did not maintain strict neutrality but had favoured the Transdniestrians by allowing them to change the balance of forces which had obtained between the parties at the time of the ceasefire of 21 July 1992.
95. On 28 December 1995 the Moldovan delegation to the JCC sent a letter to the head of the Russian delegation to the JCC protesting about a proposal by the deputy commander of the Russian Federation"s land forces to transfer the powers of the Russian peacekeeping units to the units of the ROG, which the Moldovan delegation considered to be contrary to Article 4 of the agreement of 21 July 1992. The proposal was also deemed unacceptable in view of "a certain level of politicisation of the men of the ROG and their lack of impartiality {vis-a-vis} the parties to the conflict". The Moldovan delegation referred to a number of infringements of the principle of neutrality set forth in the agreement of 21 July 1992, which included: the transfer of certain military equipment and ammunition by the Fourteenth Army to the unconstitutional authorities in Tiraspol; training of "MRT" troops by the Russian army; and transfers of military units from the Fourteenth Army to the "MRT" side - for example, the Parcani sapper battalion, converted into an "MRT" artillery unit - the transfer of the fortress of Tighina/Bender to the 2nd "MRT" infantry brigade or the transfer to the "MRT" of the Slobozia depot, occupied by a Fourteenth Army signals battalion.
The Moldovan delegation drew attention to the fact that "MRT" military units had been brought into the security zone with the connivance of the JCC"s Russian troops, that new paramilitary units had been formed in the town of Tighina/Bender, which had been declared a security zone and was under the responsibility of the Russian peacekeeping forces, and that firms in Tighina/Bender and Tiraspol were manufacturing weapons and ammunition.
The Moldovan delegation asked their Government to consider the possibility of replacing the Russian peacekeeping forces in Transdniestria by a multinational force under the auspices of the United Nations or the OSCE. Lastly, the Moldovan delegation expressed their hope for rapid implementation of the agreement of 21 October 1994 on the withdrawal of the armed forces of the Russian Federation from Moldovan territory.
96. In a letter dated 17 January 1996 the head of the Russian delegation to the JCC said that the examples of an alleged lack of impartiality on the part of Fourteenth Army personnel given by the Moldovan delegation in their letter of 28 December 1995 were "distortions" and untrue. The Russian delegation considered that the agreement of 21 July 1992 undoubtedly permitted the Russian Federation to transfer to the ROG duties which had been given to the peacekeeping forces and asked the Moldovan delegation to review their position and reconsider the proposals to that effect made by the Russian Minister of Defence.
97. On 8 May 1997 in Moscow Mr 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, in which they undertook to settle any conflict they might have through negotiations, with the assistance, where necessary, of the Russian Federation and Ukraine, as guarantors of compliance with the agreements reached, and of the OSCE and CIS. The memorandum was countersigned by the representatives of the guarantor States, namely Mr Yeltsin for the Russian Federation and Mr Kuchma for Ukraine. It was also signed by Mr H. Petersen, the OSCE President, who was present at the signing by the parties and the guarantor States.
Under the terms of the memorandum, the status of Transdniestria is to be based on the following principles: decisions must be agreed by both sides, powers must be shared out and delegated and guarante

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