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,
--------------------------------
<*>
Здесь и далее по тексту слова на
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<**> 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
