TrustHLT/LaCour huggingface dataset:
AP2 (Applicant): Regarding the conditions under which he was placed, the explanation of the relatives and of the applicant himself are clear.
AP2 (Applicant): They show that the conditions of detention of the international and Slobozia isolators, as well as in the Penitentiary of Hlynaya, are inhuman and degrading.
AP2 (Applicant): The inhuman detention conditions in the Transnistria region were found by the UN experts and the special rapporteurs, as well as the so-called responsible for human rights in the region.
AP2 (Applicant): This report described the condition in the same way as the applicant did and his relatives are describing them in the materials annexed of the case.
AP2 (Applicant): The reports also show that in 2007 alone, in the detention isolators from the region, 15 inmates died due to the illness, while in 2008, 30 inmates died due to the illness.
AP2 (Applicant): The most frequent deaths occurred to the respiratory illness and specifically the tuberculosis.
AP2 (Applicant): Regarding the capacity of isolators, medical centers to carry the needed drugs, a deficiency of 94% of needed resources was found.
AP2 (Applicant): Reflecting on all the arguments and evidence presented, we conclude that a violation of Article 3 of the Convention must be found due to denial of appropriate medical assistance and being held in a human condition of detention, destabilizing his state of health even further.
AP2 (Applicant): As we notice in our written observations, the above-mentioned violations were generated by the lack of a legal system and of an adequate justice system.
AP2 (Applicant): The court created in this territory cannot guarantee and defend elementary human rights because they themselves violate these rights.
AP2 (Applicant): Thereby, according to the international law, in contested territory needs to act a function, the justice system of the state that exercise the jurisdiction over these territories.
AP2 (Applicant): In reality, though, on the contested territory, the so-called justice and investigation bodies apply the so-called local legislation, which is a hybrid of Soviet legislation with that of the Russian Federation.
AP2 (Applicant): These acts fail to provide any clear guarantees that would ensure the lack of arbitrary action when deciding the arrest or detention of the person.
AP2 (Applicant): For example, the appeals against the application of arrest are exempt in the absence of defense.
AP2 (Applicant): The detention can be extended on the sole motive of grave charge, while once the case is sent for examination, the need for detention is not verified.
AP2 (Applicant): These provisions are inconsistent with the provision of the convention and the case law of the court.
AP2 (Applicant): Elaborating on the idea of lawfulness of the tribunal, we will support the statements of Moldova government in this observation of 31 October 2014, which recognized the violation of Article 5 in this respect, reasoning that so-called courts of justice from the region failed to correspond to this criteria of legality.
AP2 (Applicant): This assertion is supported fully by the applicant.
AP2 (Applicant): In this context, we will cite here what is, of course, known from the precedents of the High Court, including some were referenced in these questions, in which it hypothetically admitted that an international unrecognized structure that effectively controls a part of the territory of member states of the convention could order the detention of a person.
AP2 (Applicant): This condition can be accepted only if it operates under certain constitutional and legislative provision that reflect a judicial tradition compatible with the convention.
AP2 (Applicant): In the contrario, a structure that does not meet at least these two requirements cannot order the legal custody and detention of a person for the purpose of Article 5, Paragraph 1 of convention.
AP2 (Applicant): Conversely, a body established by law must satisfy a number of conditions would include independence, especially from the executive impartiality, a duration of mandate of its members, and the guarantees of the judicial process.
AP2 (Applicant): The Article 5 of the convention is best treated as the forming two distinct sets of provision, set of the legality of detention and the procedural safeguards for detainees.
AP2 (Applicant): We will underline the principle of international law, ex injura just non oritor.
AP2 (Applicant): The phrase implies that unjust act cannot create law.
AP2 (Applicant): The court particularly noted that this principle dictates that acts which are contrary to international law cannot become a source of legal acts for the wrongdoer.
AP2 (Applicant): To grant recognition of illegal acts or situation will tend to perpetuate them and be beneficial to the so-called state, which has acted illegally.
AP2 (Applicant): In this sense, it is very important to remember that transnistria entities apply neither the legislation of Republic of Moldova nor that of the Russian Federation.
AP2 (Applicant): They apply their own sort of legislation, which is by far not compatible with the standards outlined in the convention when it comes to a person's liberty and security.
AP2 (Applicant): Those, the acts of the so-called authorities issued and complies with the laws enforced within the so-called MRT should, in principle, be regarded as having no legal basis in domestic law for the purpose of the convention.
AP2 (Applicant): As to the lawfulness of arrest and detention ordered by MRT courts and other MRT authorities, we should stress the following.
AP2 (Applicant): The regime established in transnistria region through armed force and bloodshedding is illegal, as well as the institutions created by this entity are illegal from the perspective of international law.
AP2 (Applicant): These bodies are not established by law and therefore do not have the competence to order the applicant's lawful arrest or detention within the meaning of Article 5, Paragraph 1 of the convention, especially because they do not meet the condition of independence and impartiality.
AP2 (Applicant): Regarding to the violation of the right to private and family life, we will mention that from November 2008 until May 2009, the applicant was not allowed to see his parents.
AP2 (Applicant): During those few visits which were allowed thereafter, such as on the 16th February 2010, they were not allowed to speak their own language, German, but were forced to speak Russian under penalty of interrupting the meeting.
AP2 (Applicant): In June, September 2009, his Lutheran pastor from Norway attempted to see the applicant at the latest request in order to provide him with religious services.
AP2 (Applicant): The applicant's pastor was finally allowed to see the applicant on 1st February 2010.
AP2 (Applicant): We will refer here to the conclusions that the court reached in the case of Ivan Sokov v. Russian Moldova in Paragraph 141, 42,
AP2 (Applicant): where it's mentioned that the restriction could not have any legal nature.
AP2 (Applicant): Consequently, a violation of Article 8 and 9 of the convention was committed regarding the applicant.
AP2 (Applicant): Honorable court, we consider that the facts are fully supported by evidence, and they will allow the court to admit that a violation of the applicant's rights occurred.
AP2 (Applicant): In the following lines, my colleague will present the arguments regarding the jurisdiction and the degree of responsibility of the independent states.
Dean Spielmann (JudgeP): Thank you, Mrs. Hriplivii.
Dean Spielmann (JudgeP): I give now the floor to Mr. Alexandru Postica.
AP1 (Applicant): my colleague mentioned in the first intervention that the present case is different from other similar cases of torture due to the issue of jurisdiction and responsibility.
AP1 (Applicant): The argument that we will present here will refer to the general issues regarding jurisdiction of the defendant states over the Transnistria region during the period of alleged violation and the argument regarding the degree of responsibility of the states for these violations.
AP1 (Applicant): The applicant supports the opinion of the Republic of Moldova government regarding the double jurisdiction that needs to be applied generally to all cases of violation of human rights that take place in the MRT.
AP1 (Applicant): The applicant maintains that the facts that he is complaining about fall within the jurisdiction of Republic of Moldova as an expression of its territorial jurisdiction and the jurisdiction of the Russian Federation because of the effective control over the secessionist administration.
AP1 (Applicant): In the judgment of Ilashko, Kattan, and Ivancok, the court has already underlined the principles that govern the assumptions of jurisdiction for both states.
AP1 (Applicant): The court analyzed all periods starting with 1998 until 2007.
AP1 (Applicant): We consider that there is not the case in place for any possible challenge of the elements that have been already established by high court in its irrevocable judgments.
AP1 (Applicant): Thereby, regarding the jurisdiction of the Republic of Moldova, we will underline that the high court in the Kattan decision has already pronounced state formally over the jurisdiction of Moldova.
AP1 (Applicant): Even though Moldova has a limited control over the territory of the Transnistria region, this region is recognized under public international law as part of Moldova's territory.
AP1 (Applicant): This gives rise to an obligation under Article 1 of the Convention to use all legal and diplomatic means available to it continuing to guarantee the enjoyment of the rights and freedoms defined in the Convention to those living there.
AP1 (Applicant): Consequently, from July 2007 until July 2010, the situation regarding the Moldovan jurisdiction did not change.
AP1 (Applicant): And there is no evidence to the contrary.
AP1 (Applicant): Regarding the Russian Federation, we need to underline that the principles under which an effective control over an area outside its national territory can be the basis of the state's jurisdiction is well established and was affirmed recently in Alskiny case.
AP1 (Applicant): Under this court's case law, jurisdiction can be established extraterritorially through a state's military, economic, and political support for a local subordinate administration.
AP1 (Applicant): This provides it with influence and control over the region where the administration survives by virtue of that support.
AP1 (Applicant): In our case, MRT administration can readily be characterized as a subordinate local administration through which the Russian Federation exercised effective control.
AP1 (Applicant): In the events of judgment, the court, in assessing whether the ex-complaint came within the jurisdiction of the Russian Federation, noted that political, financial, and economic support was, up to June 2007, still being provided to the administration, and that Russian troops and equipment remained in the territory contrary to Moldovan law and in breach of the commitment to withdraw completely for MRT.
AP1 (Applicant): Here we need to analyze those aspects that the court considered crucial in determining the jurisdiction and degree of responsibility, and namely, the military control, the control over the policies implemented by the secessionist administration, and the economic control of the region.
AP1 (Applicant): These grounds created and continue to maintain a puppet administration directed and controlled by the state that supported the Russian Federation.
AP1 (Applicant): The first aspect refers to the military.
AP1 (Applicant): Specifically, this aspect remains the most sensitive in the relation of the international community with the Russian Federation.
AP1 (Applicant): There are now 15 years since the Russian Federation committed to withdraw the troops from the territory of Moldova.
AP1 (Applicant): And until now, it failed to act upon its commitments to the international community.
AP1 (Applicant): Regarding the situation of the number of the soldiers, the question is regarding the manner how the soldiers are counted.
AP1 (Applicant): If it is in the numbers of soldiers who wear the Russian uniform with its insignia, we admit that it could match the number present by the Russian government.
AP1 (Applicant): However, let us not forget about the soldiers that lack insignia or the number of so-called green soldiers without any insignia.
AP1 (Applicant): One thing is clear.
AP1 (Applicant): Regardless of the number of soldiers, it is important who is behind them.
AP1 (Applicant): The recent events in Crimea and the eastern region of the UK demonstrate that not the number of soldiers counts, but whose interests they defend.
AP1 (Applicant): The Russian Federation continued to have military presence in MRT during the time that the rights and interests of the applicant were violated.
AP1 (Applicant): And secondly, the Russian Federation lacks intention to withdraw these ammunitions.
AP1 (Applicant): This was made clear and straightforward in the statement of high ranks official from the Russian Federation during the ratification of the 2009 memorandum that the weapons will be withdrawn after the political solution of the conflict.
AP1 (Applicant): The question, in fact, is what does political solution of the conflict actually mean?
AP1 (Applicant): In the opinion of the MRT administration, conflict resolution means the independence of the region and its integration to the Russian Federation.
AP1 (Applicant): So the purpose of this military presence in MRT is not, as the Russian Federation suggests, in its written submission, in order to carry out peacekeeping or guard a stockpile of weapons.
AP1 (Applicant): Instead, it is to maintain an effective authority over the territory, including by maintaining the capacity to react to events and secure the position of MRT.
AP1 (Applicant): Honorable Court, the European Court has followed the general rules.
AP1 (Applicant): It does not require evidence of complete dependence on and the control of an outside state for international wrongful conduct of a secessionist de facto regime.
AP1 (Applicant): In the Lashko case, the court expanded the scope of responsibility beyond that of effective overall control, determining that the responsibility of the Russian Federation for the guarantee of the convention rights was triggered by the action of the MRT.
AP1 (Applicant): The court also took into account the political support provided in the establishment of the separatist regime and in enabling it to survive and maintain its autonomy in relation to Moldova.
AP1 (Applicant): The stated objective of the convention to avoid a regrettable vacuum in the system of human rights protection in the territory in question includes a requirement to ensure that an outside state is held responsible for extensive support for secessionist groups without the need to prove that.
AP1 (Applicant): In each specific instance of violation, the de facto regime was under the control of the outside state.
AP1 (Applicant): The Russian Federation dismisses the court's finding in the Lashko, Ivancok, and in Katan cases of political influence over the MRT administration, starting that there is no evidence to suggest any role in what it refers to as the emergence of the problem.
AP1 (Applicant): This opinion is repealed by the evidence that Russia Duma has provided to the international community.
AP1 (Applicant): We refer to the report of the Russian Federation Council Committee on Defense and Security, adopted in 2010, which stated the desire to increase its influence over the political and military leadership of the MRT.
AP1 (Applicant): This is consistent with the findings of the court on the nature and extent of its support for and collaboration with the MRT separatist regime.
AP1 (Applicant): The case contains evidence confirming that after 2007, until now, existed tens of visits of high Russian officials who supported the actions of the separatist leaders.
AP1 (Applicant): Even nowadays, Mr. Pushko, head of the Russian delegation
AP1 (Applicant): at the Parliamentary Assembly of the Council of Europe, stated that Russia holds the key to resolution of the conflict in Ukraine, Georgia, and Moldova.
AP1 (Applicant): Regarding the financial assistance to the separatist regime, Russia fails to deny that it supports the secessionist regime.
AP1 (Applicant): The call declared by the Russian government to help the local population is noble, but its effect contributes more to the proliferation of the regime rather than to increasing the well-being of the population.
AP1 (Applicant): So the statement that the Russian Federation is elevating the state of the population through humanitarian aid means to only tell half of the truth.
AP1 (Applicant): We have to be fair here.
AP1 (Applicant): Russia breaches both Moldova and its own legislation.
AP1 (Applicant): This process can be called a forced introduction of aid, and its nature is similar with the columns of aid offered to pro-Russian rebels in eastern Ukraine.
AP1 (Applicant): I will also quote here an important media outlet from the Russian Federation, which only a week ago mentioned that for the first time, the Russian Federation failed to offer the MRT financial aid in the amount of $100 million US.
AP1 (Applicant): Consequently, honorable court, we can easily reach a conclusion that from June 2007 until the applicant was freed from detention in 2010, the Russian Federation exercised its jurisdiction over the self-proclaimed MRT territory, being undoubtedly the sponsor, mentor, and the defender of the separatist regime, which frequently violated the rights of the applicant.
AP1 (Applicant): Honorable court, another issue not less important than the jurisdiction is the responsibility of the government and the domestic remedies.
AP1 (Applicant): I will anticipate certain questions which, in my view, need to be asked and answered.
AP1 (Applicant): Here they are.
AP1 (Applicant): Should the applicant contest the sentence of February 2010?
AP1 (Applicant): Should the applicant have complained to the court of Republic of Moldova and claim damages for illegal detention?
AP1 (Applicant): What kind of measures should take the state that has the jurisdiction over the territory?
AP1 (Applicant): Here I would like to reiterate the principle of international law, according to which a criminal punishment can only be applied in the name of the internationally recognized state.
AP1 (Applicant): I will remind the honorable court about the arguments brought by the previous speakers regarding the illegality of the institution and functioning of so-called court in MRT.
AP1 (Applicant): I would also mention that any possible acceptance of these courts as competent to order the applicant's arrest or detention to condemn persons in the name of a non-existent state would short-circuit the entire legal system of the Republic of Moldova.
AP1 (Applicant): However, the Republic of Moldova recognizes it's the jurisdiction in this territory.
AP1 (Applicant): Moreover, in the condition that the government itself recognizes the illegality of these courts, the admission of any such conclusion would undermine the law of the state in exercising its jurisdiction, a fact that is incompatible with the provision of the convention.
AP1 (Applicant): I will continue with the first assertion why the applicant did not appeal the sentence of 1st July 2010.
AP1 (Applicant): Theoretically, appealing a condemnation sentence should offer the applicant a chance to be acquitted, honorable court.
AP1 (Applicant): When after 20 months of detention, one is given the opportunity to run from their torturers, one does not stay to prove its innocence through a justice system lacking illegality and credibility, which admitted that such illegal acts took place.
AP1 (Applicant): The applicant's sole objective was to remain alive and secure personal safety.
AP1 (Applicant): Once he left the region, was it of any use to appeal the decision in the local courts?
AP1 (Applicant): The applicant lacked intention to return to the region, so this sentence is not relevant to him under any form.
AP1 (Applicant): This sentence cannot be considered as a valid act, neither according to international practice, nor according to the practice of the Court of Republic of Moldova.
AP1 (Applicant): This sentence of condemnation of the applicant cannot be executed at all in the area of the Council of Europe, apart from territory of Abkhazia, Ossetia, and so-called popular republic of Luhansk and Donetsk, which are all seemingly supported by the Russian Federation.
AP1 (Applicant): Not least, appealing the sentence in MRT court and any possible annulment could not offer remedy to the violated rights, and as the object of the application is unlawful arrest and detention.
AP1 (Applicant): The proposals of the Moldovan government to exhaust domestic remedies through asking damages for illegal detention is both unclear and contradictory.
AP1 (Applicant): Firstly, the Moldovan government mentions that it is not responsible for the detention of the applicant.
AP1 (Applicant): However, the Moldovan government asked the applicant to solicit damages for his detention.
AP1 (Applicant): Regarding the responsibility of both states, we will remind the Honorable Court that the Russian Federation is responsible for the violation of the applicant's rights, given its large support to MRT administration.
AP1 (Applicant): On the responsibility of the Republic of Moldova and the way it is executing this positive obligation, we need to analyze two factors.
AP1 (Applicant): The Republic of Moldova, through its general passivity regarding the illegal detentions, admitted the perpetration of these violations.
AP1 (Applicant): And secondly, the constitutional authority acted late and inefficiently in this concrete case.
AP1 (Applicant): Generally speaking, the actions of the Moldovan government are reduced to sending letters on the political resolution of the Trans-Siberian conflict.
AP1 (Applicant): The government failed to present to the High Court any eloquent and consistent demarches on the fact that it raised the issue of illegal detention and illegal court functioning in MRT.
AP1 (Applicant): With the international forums at the general level, or at least at the level of negotiation of the Trans-Siberian conflict resolution, Moldovan government failed to create an adequate and functional infrastructure for courts of justice, prosecution, and police bodies for the rails from the left bank of the Dniester River.
AP1 (Applicant): Moldovan government failed to conduct a prompt and proper criminal investigation and the alleged illegal action against the applicant committed by the employees of a private company and MRT administration.
AP1 (Applicant): Even after the applicant was released from detention, the prosecution refused to provide him with relevant and prompt protection.
AP1 (Applicant): In conclusion, we insist that the responsibility of the Republic of Moldova needs to be assumed equally to that of the Russian Federation, and that both governments bear equal responsibility for the violation of the applicant's rights in this particular case.
AP1 (Applicant): We also hope that the judgment in this case will not limit to the situation in the past, but will also help avoiding such violations in the future.
Dean Spielmann (JudgeP): Thank you very much, Mr. Postica.
Dean Spielmann (JudgeP): Turn now to the judges and I would ask them if there are questions.
Dean Spielmann (JudgeP): Judge Luis López Guerra.
Luis López Guerra (Judge): Thank you Mr. President.
Luis López Guerra (Judge): I would like to make some questions to all three parties because they referred to some information.
Luis López Guerra (Judge): It has been raised, the issue by the Moldovan government, by the applicant, of the unlawfulness of the so-called MRT court, derived mostly from two facts.
Luis López Guerra (Judge): First, that this court has not been created in accordance with Moldovan legislation.
Luis López Guerra (Judge): Secondly, because the whole general political system of public authorities, or the so-called MRT, is not recognized by the international community, by any country.