SECOND SECTION
CASE OF GOLUB v. THE REPUBLIC OF MOLDOVA AND RUSSIA
(Application no. 48020/12)
 
 
 
 
JUDGMENT
 
STRASBOURG
30 November 2021
 
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Golub v. the Republic of Moldova and Russia,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
 Carlo Ranzoni, President,
 Egidijus Kūris,
 Pauliine Koskelo, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no. 48020/12) against the Republic of Moldova and Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Nikolay Golub (“the applicant”), on 18 July 2012;
the decision to give notice to the Moldovan and Russian Governments (“the Governments”) of the complaints concerning Articles 4, 5 and 13 of the Convention and of Article 2 of Protocol No. 4 of the Convention and to declare inadmissible the remainder of the application;
the parties’ observations;
the Russian Government’ s objection to the examination of the application by a Committee and to the Court’ s decision to reject it;
Having deliberated in private on 9 November 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case is about the applicant’s compulsory military service in the self-proclaimed “Moldovan Republic of Transdniestria” (the “MRT” – see for more details Ilașcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 28-185, ECHR 2004-II). He complains that his military service constituted forced labour and amounted to unlawful detention. He also complains about the lack of effective remedies in respect of his other complaints. THE FACTS
2. The applicant was born in 1993 and lives in Lunga. The applicant was represented by Mr A. Postică, lawyer practising in Chișinău. 3. The respondent Governments were represented by their Agents. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. In September 2011 the applicant was called up for compulsory military service in the “MRT”. As the sole caretaker of his disabled mother, the applicant was entitled under the “MRT” law to the deferral of his conscription. Nevertheless, the applicant and his mother opted for the enrolment in a military education institution in the “MRT”, under the authority of the “MRT” Ministry of Defence, which allowed him to obtain an education diploma and counted as military service. 6. As a cadet, the applicant’s passport was taken away and he was issued a recruit card. He was not allowed to leave the premises of the military institute without the authorisation of the commander. 7. In November 2011 he left the premises of the military institute on several occasions to seek medical treatment after having been allegedly ill‑treated or to care for his mother. Upon his return, from 17 to 24 November 2011 he was disciplined for absence without leave and placed in isolation in the Tiraspol Military Command. 8. During his stay in the Tiraspol Military Command, the applicant was held in a cell with eight other persons and could leave the cell only once per day to use the toilet. 9. On 2 December 2011 a criminal investigation was initiated by the “MRT” authorities against the applicant on charges of absence without leave. It was discontinued on 27 January 2012 on non-rehabilitation grounds. 10. On 20 December 2011 the applicant was excluded from the military institute for lack of discipline and unwillingness to continue his military education. He was sent to the “MRT military unit no. 40896” in Dubăsari to complete the compulsory military service. 11. On 25 December 2011 the applicant left the military unit for an authorised leave but returned several hours past the authorised time. According to the applicant, as an informal sanction he was requested to dig a trench and because he refused, he was disciplined and placed in isolation from 26 December 2011 to 9 January 2012 in the prison of the military unit (“гауптвахта”). 12. On 25 February 2012 the “MRT” Minister of Defence granted the applicant’s request for early dismissal from military service as the sole caretaker of his disabled mother and placed him in the reserve of the “MRT” army. On 27 February 2012 the applicant was informed about this order and left the military unit. 13. On 17 May 2012 the applicant complained to the Moldovan and Russian Prosecutor General’s Offices about his unlawful deprivation of liberty. 14. On 9 and 22 June 2012, respectively, the Russian Military prosecutor informed the applicant about having redirected his complaint to the Moldovan and the “MRT” authorities. 15. On 19 June 2012 the Moldovan Prosecutor General’s Office informed the applicant that a criminal investigation into his unlawful detention had been initiated the same day. On 17 August 2012 the investigation was suspended until the identification of the perpetrators. RELEVANT MATERIALS
16. The relevant materials have been summarised in Mozer v. the Republic of Moldova and Russia [GC] (no. 11138/10, §§ 61-77, 23 February 2016). THE LAW
ADMISSIBILITYJurisdiction

17. The Court must determine whether the applicant falls within the jurisdiction of the respondent States for the purposes of the matters complained of, within the meaning of Article 1 of the Convention. 18. The applicant submitted that in light of the Court’s constant case-law both respondent Governments had jurisdiction. 19. The Moldovan Government submitted that they had positive obligations to secure the applicant’s rights and the Russian Federation had jurisdiction due to their continuous military presence in the region. 20. For their part, the Russian Government argued that the applicant did not fall within their jurisdiction. 21. The Court notes that the parties in the present case maintain views on the issue of jurisdiction which are similar to those expressed by the parties in Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04 and 2 others, §§ 83-101, ECHR 2012 (extracts)) and in Mozer (cited above, §§ 81‑95). In particular, the applicant and the Moldovan Government submitted that both respondent Governments had jurisdiction, while the Russian Government submitted that they had no jurisdiction. 22. The Court recalls that the general principles concerning the issue of jurisdiction under Article 1 of the Convention in respect of actions and facts pertaining to the Transdniestrian region of Moldova were set out in Ilaşcu and Others (cited above, §§ 311-319), Catan and Others (cited above, §§ 103-107) and Mozer (cited above, §§ 97-98). 23. In so far as the Republic of Moldova is concerned, the Court notes that in Ilaşcu, Catan and Mozer it found that although Moldova had no effective control over the Transdniestrian region, it followed from the fact that Moldova was the territorial State and that persons within that territory fell within its jurisdiction. However, its obligation, under Article 1 of the Convention, to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention was limited to that of taking the diplomatic, economic, judicial and other measures that were both in its power and in accordance with international law (see Ilaşcu and Others, cited above, § 333; Catan and Others, cited above, § 109; and Mozer, cited above, § 100). Moldova’s obligations under Article 1 of the Convention were found to be positive obligations (see Ilaşcu and Others, cited above, §§ 322 and 330-331; Catan and Others, cited above, §§ 109-110; and Mozer, cited above, § 99). 24. The Court sees no reason to distinguish the present case from the above-mentioned cases. Besides, it notes that the Moldovan Government do not object to applying a similar approach in the present case. Therefore, it finds that Moldova has jurisdiction for the purposes of Article 1 of the Convention, but that its responsibility for the acts complained of is to be assessed in the light of the above-mentioned positive obligations (see Ilaşcu and Others, cited above, § 335). 25. The Court notes that in Ilașcu and Others it has already found that the Russian Federation contributed both militarily and politically to the creation of a separatist regime in the region of Transdniestria in 1991-1992 (see Ilaşcu and Others, cited above, § 382). The Court also found in subsequent cases concerning the Transdniestrian region that up until at least September 2016 (Eriomenco v. the Republic of Moldova and Russia, no. 42224/11, § 72, 9 May 2017), the “MRT” was only able to continue to exist, and to resist Moldovan and international efforts to resolve the conflict and bring democracy and the rule of law to the region, because of Russian military, economic and political support (see Ivanţoc and Others v. Moldova and Russia, no. 23687/05, §§ 116‑120, 15 November 2011; Catan and Others, cited above, §§ 121-122; and Mozer, cited above, §§ 108 and 110). The Court concluded in Mozer that the “MRT”‘s high level of dependency on Russian support provided a strong indication that the Russian Federation continued to exercise effective control and a decisive influence over the Transdniestrian authorities and that, therefore, the applicant fell within that State’s jurisdiction under Article 1 of the Convention (Mozer, cited above, §§ 110-111). 26. The Court sees no grounds on which to distinguish the present case from Ilașcu and Others, Ivanţoc and Others, Catan and Others, Mozer and Eriomenco (all cited above). 27. It follows that the applicant in the present case fell within the jurisdiction of the Russian Federation under Article 1 of the Convention. 28. The Court will hereafter determine whether there has been any violation of the applicant’s rights under the Convention such as to engage the responsibility of either respondent State (see Mozer, cited above, § 112). Exhaustion of domestic remedies
29. The Moldovan Government submitted that the applicant had failed to exhaust the remedies available to him in Moldova without referring to any concrete remedy. They argued therefore that the part of the application concerning Moldova should be declared inadmissible for failure to exhaust domestic remedies in Moldova. 30. The Russian Government also submitted that the application should be rejected for failure to exhaust domestic remedies before either Moldovan courts or Russian courts. 31. The applicant contended that there were no effective remedies which needed to be exhausted in either State. 32. The Court notes that a similar objection was raised by the Moldovan Government and dismissed by the Court in Mozer (cited above, §§ 115‑121), and by both Governments and dismissed in the cases of Vardanean v. the Republic of Moldova and Russia (no. 22200/10, §§ 27 and 31, 30 May 2017) and Bobeico and Others v. the Republic of Moldova and Russia (no. 30003/04, § 39, 23 October 2018). Since neither of the Governments specified the domestic remedies which the applicant should have exhausted and no new arguments have been adduced, the Court sees no reason to reach a different conclusion in this case. It follows that the Governments’ objections on non-exhaustion of domestic remedies must be dismissed. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION
33. The applicant complained that his compulsory military service in the “MRT” constituted forced labour, contrary to Article 4 of the Convention, the relevant part of which reads as follows:
“2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this article the term ‘forced or compulsory labour’ shall not include:
... (b)  any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
...”
34. The applicant contended that the compulsory military service in the army of an unrecognised entity constituted forced labour. His enrolment in the military education institution and his subsequent service in the Dubăsari military unit had not been voluntary because draft evasion was a criminal offence in the “MRT”. Because the service was in the military structure of an unrecognised entity it did not fall under the exception of Article 4 § 3 (b) of the Convention and was therefore prohibited under Article 4 § 2 of the Convention. 35. The Moldovan Government submitted that the applicant had voluntarily enrolled in the military education institution when he could have obtained an exemption from compulsory military service as the sole caregiver of his disabled mother. However, the Moldovan Government did not recognise the legal obligation to perform military service in the self‑proclaimed “MRT” and argued that such service did not correspond to the exception under Article 4 § 3 (b) of the Convention. In any event, the Moldovan Government contended that they had fulfilled their positive obligations in respect of the applicant. 36. The Russian Government made no specific submissions. 37. The Court reiterates its case-law on Article 4 of the Convention (Van der Mussele v. Belgium, 23 November 1983, §§ 32, 34 et 38, Series A no. 70; Siliadin v. France, no. 73316/01, §§ 112, 115 and 116, ECHR 2005‑VII; Stummer v. Austria [GC], no. 37452/02, §§ 116-118 and 120, ECHR 2011; and Chitos v. Greece, no. 51637/12, § 79, ECHR 2015 (extracts)). 38. Even assuming that the applicant’s service in the “MRT” military was not covered by the exception under Article 4 § 3 b) of the Convention, the Court notes that in the present case it appears that the applicant had “offered himself voluntarily” for the work in question (Van der Mussele, cited above, § 39; Graziani-Weiss v. Austria, no. 31950/06, § 38, 18 October 2011; C.N. and V. v. France, no. 67724/09, §§ 71 and 76, 11 October 2012; and Chitos, cited above, §§ 88 and 96). 39. In particular, the Court notes that under the “MRT” law an individual generally risked imprisonment for draft evasion if he did not carry out compulsory military service (see Aslanian v. the Republic of Moldova and Russia, no. 74433/11, 22 June 2021). However, in the present case, the applicant himself submitted that he was entitled to the deferral of his conscription as the sole caretaker of his disabled mother and that it had been his and his mother’s decision to opt instead for military service through an enrolment in the military institution (see paragraph 5). Moreover, it appears from the facts of the case that once the applicant and his mother had changed their mind and had applied for an early dismissal on the same grounds, in February 2012 the applicant had been granted his request and relieved from any service (see paragraph 12). 40. For this reason, the Court concludes that the applicant’s complaint under Article 4 of the Convention is manifestly ill-founded. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION AND ARTICLE 2 OF PROTOCOL No. 4 TO THE CONVENTION
41. The applicant complained that his forced stay and the restrictions to his freedom of movement while in the military institute and the Dubăsari military unit amounted to unlawful detention and was contrary to Article 5 of the Convention, or alternatively, to Article 2 of Protocol No. 2 to the Convention. 42. The relevant part of Article 5 of the Convention reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a)  the lawful detention of a person after conviction by a competent court;
(b)  the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d)  the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e)  the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ...”
43. The relevant part of Article 2 of Protocol No. 4 to the Convention reads as follows:
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
...3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”
The parties’ submissions
44. The applicant submitted that the restrictions on his liberty varied in time. In particular, he distinguished (i) the period from 6 August to 20 December 2011, spent with the military institute, except for (ii) the period from 17 to 24 November 2011 spent in the Tiraspol Military Command, and (iii) the period from 20 December 2011 to 27 February 2012 spent with the Dubăsari military unit. The applicant argued that Article 2 of Protocol No. 4 to the Convention applied in respect of period (i), while Article 5 of the Convention applied to periods (ii) and (iii). The applicant submitted that all restrictions in respect of his freedom were unlawful because they were ordered by the unrecognised authorities of the “MRT”. He further argued that he had not consented to such restrictions since military service was compulsory and his enrolment in the military institute was the only option to avoid military service without punishment. 45. The Moldovan Government distinguished between (i) the periods from 17 to 24 November 2011, spent in the Tiraspol Military Command and from 26 December 2011 to 9 January 2012, spent in the prison of the Dubăsari military unit, and (ii) the rest of the applicant’s “military service”. They argued that Article 2 of Protocol No. 4 to the Convention was applicable in respect of the period (ii) but that there was no violation of that provision because the applicant had consented to such restrictions when he had opted for military service instead of deferral. However, Article 5 of the Convention was applicable to the periods (i), to which the applicant could not have consented and that there was a violation of that provision because the applicant’s deprivation of liberty had been ordered by unrecognised authorities. The Moldovan authorities fulfilled their positive obligations by initiating a criminal investigation into the applicant’s unlawful deprivation of liberty. 46. The Russian Government made no specific submissions.

Article of the Convention at issue: Article 2
Outcome: no_violation