TrustHLT/LaCour huggingface dataset:
GR2 (Government): However, the parties were also called before the Grand Chamber to elaborate on the compatibility of this situation with its previous case law, in particular with Fokap and Protopapa cases, and to express views whether the so-called Namibia exception is applicable to the present case.
GR2 (Government): Here, I begin with the fundamental principle of international law called the non-recognition.
GR2 (Government): It declares that illegal acts cannot become sources of legally valid results.
GR2 (Government): Its function is to prevent validation of any act or its consequences, which are already legally void.
GR2 (Government): In other words, applying this principle to the present case, the acts of the Transnistrian tribunals are contrary to international law and shall not become sources of legal rights for them because their judgments are the poisoned fruits of illegal conduct.
GR2 (Government): Moreover, this non-recognition on account of unlawfulness is to be extended to the whole institutional foundation of the Transnistrian region.
GR2 (Government): The doctrine defines a non-recognition as the state obligation not to recognize through individual or collective acts the alleged statehood of an effective territorial entity created in violation of one of or more fundamental rules of international law.
GR2 (Government): In the present context, it is particularly important that this obligation is not restricted in its application only to the states, since international organizations, including the Council of Europe and the European Court, bear the same responsibility under international law.
GR2 (Government): I would also recall the distinctive feature of any de facto administration.
GR2 (Government): It remains to be exercised of effective authority over territory and people living there.
GR2 (Government): Once the regime is not recognized by international community, it's exercised its authority only de facto, which signifies its illegal or extra legal foundation.
GR2 (Government): In order to validate their existence, the de facto administration seeks recognition from bigger powers to give weight to their international status and claims.
GR2 (Government): So in this situation, another descending principle may come into play.
GR2 (Government): It says that effective practice in certain circumstances generate legal consequences mostly through international human rights law.
GR2 (Government): This approach opposes to the general rule of non-recognition, and it may be considered an exception to that rule.
GR2 (Government): Another aspect in the relation of these two apparently descending principles is that the consequence of violation of the peremptory norm is legal nulity, which operates erga omnis.
GR2 (Government): Thus, the duty of non-recognition arises when there is a view that the serious violation of the peremptory norm of international law was committed.
GR2 (Government): Both the draft articles on state responsibility of international law commission and the case law of International Court of Justice stipulate that the duty not to recognize legality of a situation created in violation of a peremptory norm of international law extends not only to the formal acts of recognition, but also to those acts, omissions that would imply such recognition.
GR2 (Government): In the present case, the unlawfulness of the de facto tribunals represents the essence of the applicant complaint, and it stands at the core of the alleged violation of the convention.
GR2 (Government): The complaint is not examined via exhaustion rule or the right to remedy.
GR2 (Government): Here, the right to a lawful tribunal is a critical guarantee of Article 5 and 6 and the cornerstone of the entire convention.
GR2 (Government): To hold that the unrecognized tribunal might have been lawful is to undermine the very essence and the meaning of that right.
GR2 (Government): Therefore, I must say that there is there unlawfulness of the tribunal is a peremptory norm of international law.
GR2 (Government): Its breach cannot be overruled ever.
GR2 (Government): Turning to our case, I recall the court in Ilashku did not acknowledge the lawfulness of the tribunals in their region and found them to be contrary to the convention.
GR2 (Government): Now the question whether the situation, at least after the Ilashku case has been changed, and whether the Namibia exception, which has been successfully applied in Fokha-Protopapa and Cyprus versus Turkey case, as well as in Dimopoulos case, could be exceptionally applied to the Transnistrian cases.
GR2 (Government): My government's position to that, it could not and should not be applied.
GR2 (Government): Therefore, the very principle of nonrecognition should prevail in the present case for the following reasons.
GR2 (Government): The court has never regarded the law enacted by recognized entities as law within the meaning of the convention.
GR2 (Government): For example, I refer to the landmark cases, the Lusidu followed by Cyprus versus Turkey, where the court held that the de facto entity was not a state recognized under international law and consequently the expropriation clause in the so-called constitution and any law based on it did not have any validity.
GR2 (Government): In its last admissibility decision in case of Kiryagov and others versus Armenia, the court confirmed this approach.
GR2 (Government): Similar reasons should be applied to all laws enacted by the de facto administration in the Transnistrian region.
GR2 (Government): Also, the court does not select laws it could accept for the purposes of the convention.
GR2 (Government): This is because in this situation, the court basically looks who enacted these laws and not what laws regulate.
GR2 (Government): As a result, this also means that such a law emanated from an unrecognized entity cannot establish a lawful tribunal either.
GR2 (Government): Otherwise, if the court would consider the Transnistrian tribunals as lawful for the purposes of the convention, it may lay a recognition to certain powers of internationally recognized entities to enact internationally recognizable and valid laws.
GR2 (Government): This would be inconsistent with its own case law where the court does not recognize any laws enacted by unrecognized entities.
GR2 (Government): However, in Cyprus and versus Turkey, and consequently in Fokha and Protopapa, revealed that the court has regarded the judicial system of an internationally recognized entity as a tool to be exhausted.
GR2 (Government): Therefore, a certain legitimacy for the purposes of the convention was given to the de facto judicial system.
GR2 (Government): The Dimopoulos case confirmed this approach.
GR2 (Government): Why the court review its own non-recognition obligation?
GR2 (Government): First reason is that it was made in exceptional circumstances and narrowly applied.
GR2 (Government): And the second reason is that the court extended the application of the so-called Namibia exception in those exceptional cases.
GR2 (Government): Henceforth, I will be dealing with these two aspects.
GR2 (Government): Does the Transnistrian breakaway region call for the similar and exceptional approach as it was made in regard to the northern Cyprus territory?
GR2 (Government): And whether the Namibia exception is in general applicable to the Transnistrian region?
GR2 (Government): Any exception from the rule, in our case, the rule of non-recognition, is for the strictest application and narrow interpretation.
GR2 (Government): Therefore, what worked in Cyprus versus Turkey will not necessarily be the same in the Transnistrian situation, especially when there is a certain fundamental, contextual, and factual differences which do not allow for a blind application of the Namibia exception in the Transnistrian cases.
GR2 (Government): First, in the Cyprus of Fokon Protopapa and all other similar cases, while assessing the laws enforced within the territory of northern Cyprus, the courts take into account the international recognition by the Turkey of the legitimacy of the de facto entity.
GR2 (Government): This international recognition established both jurisdictional link and also the connection between both legal system of Turkey and the de facto entity.
GR2 (Government): Especially this was true when the Turkey claimed the exhaustion of the de facto judicial system and therefore the validity of northern Cyprus courts.
GR2 (Government): In the present case, no state has ever recognized the international legitimacy of the de facto Transnistrian authorities.
GR2 (Government): No state has ever acknowledged, even implicitly, the validity of its courts.
GR2 (Government): And they has never been indicated as means for exhaustion.
GR2 (Government): Therefore, it could not be regarded as being part of any legal system of internationally recognized state and thus lawful for the purposes of the convention.
GR2 (Government): The lack of any international recognition is essential for the application of non-recognition rule and for the excluding of Namibia exception.
GR2 (Government): Second, what the Namibia exception is about and what are the risks for the present case?
GR2 (Government): It goes to balance out two seemingly contradictory principle, the non-recognition of unlawful acts and the factual existence of certain acts, unlawful but effective in terms only in human rights law.
GR2 (Government): That the doctrine follows this approach based on the theory of necessity upon which the consequences of acts of the de facto regimes can be given some effect when doing otherwise would run contrary to peace and good order.
GR2 (Government): This means that the Namibia exception is meant to calm down the things and not to worsen them.
GR2 (Government): From this angle, it is not applicable to the present case because here it will run against its scope.
GR2 (Government): In our situation, the recognition of unlawful tribunal would be contrary to the fragile arrangements made for the peace in the region.
GR2 (Government): It will not solve the already existing gap in the national legal system, but it will deepen the differences.
GR2 (Government): Moreover, the exception cannot give a legitimacy to the judiciary that operates contrary to the convention principles, which is against peace and order.
GR2 (Government): And eventually, this exception in the Transnistrian file will subdue the already delicate and problematic negotiations.
GR2 (Government): Another important aspect should be kept in mind.
GR2 (Government): The Namibia exception is narrow, and it is applicable only in relation of certain qualified acts.
GR2 (Government): For example, the Judge DiCastro in his descending opinion on the advisory opinion of Namibia suggested that for assessing whether a particular act should be granted legal validity, distinction should be made between public and private acts.
GR2 (Government): In other words, that acts which are aimed at or capable of embedding any legal regime cannot be granted legal validity.
GR2 (Government): In this sense, the criminal courts were always considered as a resemblance of public powers, and the recognition of their legitimacy would be tantamount to the granting legal validity to the whole unlawful regime.
GR2 (Government): The Namibia exception relates to everyday relation and private acts.
GR2 (Government): Such acts can be valid irrespective of their recognition as lawful or unlawful.
GR2 (Government): On the other hand, the criminal law acts and the criminal law proceedings are part of the public law, and their recognition as lawful is prerequisite to be considered as such.
GR2 (Government): There are not everyday and private relations.
GR2 (Government): Hence, the Namibia exception could not be extended for this reason either.
GR2 (Government): There are other reasons why the Namibia exception is not applicable to the Transnistrian cases, which are comprehensively elaborated in our written submission.
GR2 (Government): My government does not endorse the application of Cyprus and then the Fokha and Protopapa principles to the present case and to all Transnistrian cases because of fundamental differences between the general context, legal backgrounds, and the reasons behind the court's assessment of the de facto regimes in northern Cyprus and in the Transnistrian region.
GR2 (Government): The Transnistrian de facto authorities, their courts, and all institutions are unlawful because they do not belong to a system functioning on constitution and legal basis reflecting at least a judicial tradition compatible with the convention.
GR2 (Government): There is a need to apply different international standards for a successive resolution of the present black hole illegacy.
GR2 (Government): This requires an assessment of either of both governments' positive obligation and avoiding the clash of jurisdiction, one territorial but without effective control and other extraterritorial overall jurisdiction.
GR2 (Government): These jurisdictions clash cannot be solved by extensive application of the Namibia exception, which at last would lead to the territorial disintegration of the Republic of Moldova and to the gap between the legal systems.
GR2 (Government): This clash and the gap could be solved only by discontinuing the Russian government's overall control in favor of the Republic of Moldova territorial jurisdiction.
GR2 (Government): In that situation, the Republic of Moldova, as an expression of its very territorial right, would be able to put in place the rule of law and democracy principles in the region.
GR2 (Government): I finish by quoting that the scale of justice may tip one way and another, but ultimately they balance out.
GR2 (Government): The court may take its proactive approach as an expression of its highest judicial function and to show the parties what is wrong and what is right and how to deal with it.
GR2 (Government): In any case, we may argue about lawfulness or unlawfulness of an act, but we may not transform it into something which it is not.
GR2 (Government): Thank you for attention.
GR2 (Government): Thank you all very much for coming today.
GR2 (Government): Have a very good evening.
GR2 (Government): Thank you all.
GR2 (Government): Have a good evening.
GR2 (Government): Thank you all for being here and I safeguard, whatever, your wishes and samples.
GR2 (Government): I am willing to share with you the report with regard to the version of context.
GR2 (Government): At this time, the board shall review its testimony you
Dean Spielmann (JudgeP): Thank you very much, Mr. Apostol.
Dean Spielmann (JudgeP): I call now Mr. Matyushkin.
GR1 (Government): Mr. President, honorable judges, excellencies,
GR1 (Government): the present case gives an opportunity to examine once again the issue of crucial importance concerning the extent of states' obligations and limits of their responsibility in the context of international relationships.
GR1 (Government): It is the issue of the state's territorial jurisdiction of which I speak.
GR1 (Government): As it was stated by the court on numerous occasions, the convention is a living instrument.
GR1 (Government): I therefore believe that the court should not overlook this precedential provision and should not formally repeat its previous findings in the case of Qatan.
GR1 (Government): But instead, it should take this opportunity to thoroughly analyze its position and to freshly examine this sensitive issue so as to contribute to the peaceful cooperation of the member states and not to increase the controversies between them, but to find a balanced approach which will correspond to the objective picture of the international relations.
GR1 (Government): The present case concerns a wide range of the violations of the applicant's rights that allegedly took place during his trial and detention in Transnistria.
GR1 (Government): However, the basic issue of this case, similar to the other so-called Transnistrian case, is whether these alleged violations fall within the jurisdiction of the Russian government or the government of Republic of Moldova and also under the jurisdiction of the court.
GR1 (Government): As it was recalled by the court in Qatan, the existence of the effective control of the state over an area outside its territory is a question of fact.
GR1 (Government): That was in Para 107.
GR1 (Government): Establishing the Russian Federation effective control over Transnistria in the indicated case, the court was based on its initial finding in the case of Ilashko, which covered the period up to 2004.
GR1 (Government): In particular, the court took into account the presence of the Russian military servicemen in the region.
GR1 (Government): There are allegedly three supplies of gas and the humanitarian aid provided to the inhabitants of the Transnistria region.
GR1 (Government): However, as the court pointed out in Bankovic and others, cases concerning extraterritorial jurisdiction are exceptional and require special justification in the particular circumstances of each case.
GR1 (Government): Therefore, it would be unjustified to automatically apply the findings made in Ilashko and Qatan to the present case, because at the very least, the events in question took place four years after the events described in Qatan case.
GR1 (Government): These factors, presence of the military servicemen, humanitarian aid, and economic support, take cumulatively in the court's view, speak in favor of the Russian control over the region, which in its turn, following the approach taken by the court, inevitably entails the responsibility of the Russian Federation for any alleged violation of the convention occurring in Transnistria.
GR1 (Government): The Russian government believes that this position is neither based on the case law of the court, nor on the case law of any other international judicial bodies, and what is more important, it is vulnerable from the standpoint of logic, in particular, in respect of the establishment of the presence of necessary causal links.
GR1 (Government): The problem is that the approach taken by the court in Ilashko and Qatan, and the conclusions to which it came, were based on the incorrect assumptions as regard the Russian role and the extent of its influence on the local authorities of Transnistria.
GR1 (Government): As a result, the recent judgments in the Transnistrian cases, which were supposedly aimed at the improvement of human rights situation in the region, in fact, have left into a dead end.
GR1 (Government): First of all, on the basis of the above said arguments, we believe that the scope of the course examination in the present case should be limited by the factual circumstances relating to the period of the occurrence of the alleged violation.
GR1 (Government): It cannot be overlooked that more than 16 years passed since the active stage of Transnistrian conflict until the alleged violations of the applicant's rights and the situation in the region has dramatically changed.
GR1 (Government): Therefore, attaching any significance to the long gone events without due regard to the present situation leads to the arbitrary and retrospective application of the convention.
GR1 (Government): In 1991, both of the acting parties of the conflict had neither any reasonable grounds to coordinate their conduct with the convention.
GR1 (Government): And moreover, nor could this foresee further evolution of the court's case law.
GR1 (Government): Accordingly, the scope of the course examination should be limited only to the question whether in the period complained by the applicant, Transnistria was under control of the Russian Federation without references to the events of 1991, 1992, yes, and Russian role in them as it was made in Khatyn case.
GR1 (Government): Secondly, at the court underlined, in particular in Alskanian Others versus United Kingdom and Gelude versus Netherlands, the strength of the state's military presence is of particular importance for determining whether it exercises the effective control over any region outside its own territory.
GR1 (Government): In this regard, the government emphasized that there are slightly over 1,200 Russian military servicemen deployed in Transnistria as peacekeeping forces.
GR1 (Government): 400 of them act under the command of the Joint Control Commission, a trilateral organization comprising of the representatives of Moldova, Ukraine, and the Russian Federation.
GR1 (Government): The GCC exercise full control over these forces by determining their deployment sites of their peacekeepers, their required number, and assigning them with certain tasks within the general objective of peace maintaining in the region.
GR1 (Government): It also investigates their violations of the ceasefire regime and takes certain measures to prevent their violations and to reestablish peace.
GR1 (Government): Accordingly, the Russian military servicemen acting under the control of the GCC should not be taken into account while assessing the overall number of troops deployed in the region.
GR1 (Government): More significant weight should be attached to the circumstance than it was made in the previous Transnistrian cases.
GR1 (Government): The rest of the servicemen are engaged in guiding the arms of the former 14th Soviet Army in Kalbasnya, where 2,000 tons of armament are kept, 57% of which are out of date.
GR1 (Government): Approximately the same quantity of armaments was already moved by the Russian Federation between 2000 and 2004.
GR1 (Government): Although the completion or the withdrawal of armaments does not solely depend on the Russian government, since the railway and the air transport cannot be used in the absence of mutual agreements between Moldovan government and Transnistrian local authorities.
GR1 (Government): Thus, the railroad, in fact, remains blocked, and the Cheryaspel Airport cannot be used due to the difficulties in performing custom and border control there by government of Moldova.
GR1 (Government): Therefore, the presence of the Russian military servicemen in the region is limited both locally and functionally.
GR1 (Government): Moreover, the significant number of the Russian troops is controlled by the independently functioning interstate peacekeeping organization.
GR1 (Government): Anyway, it is obvious that such a small number of military servicemen could not be regarded as a significant military force within the region.
GR1 (Government): And the court itself agreed with it in Khatyn case in Parag 118.
GR1 (Government): And it is certainly inadequate for establishing effective control over it compared to the 30,000 military personnel stationed in northern Cyprus, which allowed the court to establish the effective control of Turkey or the territory in the case of Lusitania.
GR1 (Government): It is of vital importance that the servicemen act in strict compliance with the purposes of peacekeeping, but not as supporters of the Transnistrian authorities, as it was unfoundedly presented in the court's judgment.
GR1 (Government): And no evidence to the contrary have been presented so far.
GR1 (Government): What is more important, their withdrawal will not automatically lead to the vanishing of the Transnistrian authorities.
GR1 (Government): But at the same time, their absence from the region will leave the arms store in Kolbatsnya unsecured, thus jeopardizing the peace in the region.
GR1 (Government): It is our responsibility as a mediator in the peaceful settlement of the Transnistrian conflict to prevent the re-emergence of the violent armed clashes, which may affect their tranquility in Europe.
GR1 (Government): However, it does not mean that the Russian government bears responsibility for any actions of local authorities.
GR1 (Government): As regards their politic and economic support, their following should be stated.
GR1 (Government): Firstly, according to the court's logic expressed in para 107 of the judgment in Khatun, their political and economic support serve only as secondary criteria of effective control, whereas the strength of their military presence is considered to be their primary one.
GR1 (Government): Consequently, they do not have any independent significance in the absence of the military dominance of the state or the foreign territory.