SECOND SECTION
CASE OF CILEI AND ROSIP v. THE REPUBLIC OF MOLDOVA AND RUSSIA
(Applications nos. 48145/10 and 8387/15)
 
 
 
 
 
 
JUDGMENT
 
STRASBOURG
13 July 2021
 
This judgment is final but it may be subject to editorial revision. In the case of Cilei and Rosip 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 applications (nos. 48145/10 and 8387/15) 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 two Moldovan nationals, Mr Alexandr Cilei and Mr Ivan Rosip (“the applicants”), on 11 August 2010 and 3 February 2015, respectively;
the decision to give notice to the Moldovan and Russian Governments (“the Governments”) of the application no. 8387/15, and of the complaints concerning unlawful detention in application no. 48145/10 and to declare inadmissible the remainder of this application;
the Russian Government’s objection to the examination of the application by a Committee and to the Court’s decision to reject it;
the parties’ observations;
Having deliberated in private on 22 June 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the applicants’ arrest and detention in the Transdniestrian region of Moldova (the self-proclaimed “Moldovan Republic of Transdniestria” (the “MRT”) – see for more details Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 28-185, ECHR 2004-II and Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, §§ 8-42, ECHR 2012 (extracts)). They both complained about their unlawful detention, while the second applicant also complained about inhuman conditions of detention, unlawful seizure of his property and the lack of effective remedies in respect of his other complaints. THE FACTS
2. The applicants were born in 1976 and 1958 and live in Tiraspol and Bender, respectively. The applicants were represented by Mr A. Postică and Mr P. Cazacu, lawyers practising in Chișinău. 3. The Governments were represented by their Agents. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Application no. 48145/10
5. On 30 January 2008 the first applicant was arrested by the “MRT” authorities on charges of attempted murder. On 5 June 2009 he was convicted by the “MRT” courts and sentenced to eleven years’ imprisonment. 6. The applicant sought the annulment of his conviction before the Supreme Court of Justice of the Republic of Moldova. By a letter of 10 May 2010, the Supreme Court of Justice returned his extraordinary appeal without examination, citing the absence of competence to examine judgments delivered by the “MRT” courts. 7. On 1 August 2012 the applicant was released from detention after being pardoned by the president of the “MRT”. Application no. 8387/15
8. The second applicant was the founder and the director of a company in the “MRT”. On 20 December 2012 he was arrested by the “MRT” authorities on charges of misappropriating funds of his business partners. His detention was extended repeatedly. 9. On 24 December 2012 all his personal property (two cars, two golden rings, a golden watch, 159 “MRT” roubles, the share in his company, and two mobile phones) and his company’s property was seized. 10. On 16 June 2014 the applicant was convicted by the “Bender City Court” for abuse of position of trust and sentenced to 1 year and 8 months of imprisonment and a fine of 270 “MRT” roubles. The court also upheld the civil action lodged by two alleged victims and obliged the applicant to pay them 1,899,050 “MRT” roubles. The court further ordered the levy of execution upon the seized personal property of the applicant and the removal of all restriction measures in respect of his company’s property. 11. On 5 August 2014 the “MRT” Supreme Court modified the first‑instance judgment, increasing the amount of the civil award to 2,553,000 “MRT” roubles (equivalent to 212,750 euros (EUR)) and dispensing the applicant from serving the sentence because of the expiry of the statutory limitation period. On the same day the applicant was released from detention. 12. On 6 August 2014 a writ of enforcement was issued to levy execution upon the applicant’s personal property (see paragraph 9). On 26 November 2014, the applicant was informed that in the course of enforcement proceedings an expert had evaluated his personal property to a total of 106,002 “MRT” roubles (equivalent to EUR 8,832). 13. The applicant was held in several detention facilities and often moved for short stretches of time from one to another. 14. From 20 December 2012 to 14 January 2013 he was detained in the temporary detention facility of the Tiraspol police headquarters (IVS Tiraspol), as described by him, in conditions of high humidity, overcrowding, no working ventilation and lack of access to natural light (since the detention facility was in the basement of the building), smoking, wooden bunk beds, no bed linen, unsanitary conditions, scarce and inedible food, cells infested by parasites. 15. From 14 to 22 January 2013 the applicant was held in prison no. 1 in Hlinaia, in overcrowded cells, without any heating, surviving on food and medication brought by his relatives. 16. From 22 January 2013 to 5 August 2014 the applicant was detained mainly in prison no. 3 in Tiraspol (UIN-3) in overcrowded cells, without any bed linen, the quality of the tap water was bad, and the cells’ windows were very small and allowed damp and cold air into the cells. Daily walks were only allowed for a very short time each day. There was a weight limit on the items that could be sent to a detainee by his relatives (20 kg a month, including bottled water), which, combined with the inedible food provided by the detention facility, meant that he was often hungry. 17. Transportation from detention facilities to the court, investigator or another detention facility was in a metal truck, which had no heating and no toilet, and at times the applicant had to spend 9 hours in this vehicle on freezing temperatures. 18. The applicant submitted that neither of the detention facilities had adequate medical staff and that for his health condition he needed to rely on medication brought by his relatives. 19. Following an extraordinary appeal by the applicant’s lawyer, on 7 April 2015 the Supreme Court of Justice of the Republic of Moldova quashed the judgments of the “MRT” courts in respect of the applicant. The Court found that the “MRT” courts were unconstitutional and could not therefore lawfully convict the applicant. It ordered all materials to be forwarded to the Moldovan General Prosecutor’s Office for further action. 20. On 12 November 2014 the applicant submitted complaints to the Moldovan and to the Russian prosecution offices seeking the prosecution of perpetrators responsible for his unlawful deprivation of liberty and the protection of his property against the unlawful levy of execution ordered by the “MRT” courts. 21. On 2 December 2014 the Russian prosecutor’s office replied that the applicant’s complaint did not pertain to any violation of rights on the territory of the Russian Federation. 22. On 15 May 2015 the applicant was informed by the Bender prosecutor’s office that a criminal investigation had been initiated, however in the absence of information concerning the identity of the perpetrators, it had been suspended. The request for protection measures was not granted as the Moldovan criminal procedure law did not provide for such measures in respect of a victim’s property. RELEVANT MATERIALS
23. 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
JOINDER OF THE APPLICATIONS
24. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ADMISSIBILITYExhaustion of domestic remedies

25. In respect of the first applicant’s case, the Moldovan Government submitted that the applicant had not exhausted the remedies available to him in Moldova. In particular, he could have asked repeatedly the Moldovan Supreme Court of Justice to quash his conviction by the “MRT” courts, because after 2013 the Supreme Court of Justice had changed its practice and had declared itself competent to examine such cases. According to the Moldovan Government, the applicant could have complained to the Moldovan prosecutor’s office and to the Bureau for reintegration. 26. The applicant disagreed. 27. The Court notes that a similar objection was raised by the Moldovan Government and dismissed by the Court in Mozer (cited above, §§ 115-121). It sees no grounds on which to distinguish the present case from Mozer (cited above) and rejects the Moldovan Government’s objection of non-exhaustion of domestic remedies on the same grounds as in that case. Jurisdiction
28. The Court must determine whether the applicants fall within the jurisdiction of the respondent States for the purposes of the matters complained of, within the meaning of Article 1 of the Convention. 29. The applicants submitted that both respondent Governments had jurisdiction. 30. The Moldovan Government submitted that they had positive obligations to secure the applicants’ rights. 31. For their part, the Russian Government argued that the applicants did not fall within their jurisdiction. They submitted that the second application should be declared inadmissible ratione personae and ratione loci in respect of the Russian Federation. As they did in Mozer (cited above, §§ 92-94), the Russian Government expressed the view that the approach to the issue of jurisdiction taken by the Court in the cases of Ilaşcu and Others (cited above), Ivanţoc and Others v. Moldova and Russia (no. 23687/05, 15 November 2011), and Catan and Others (cited above) was wrong and at variance with public international law. 32. 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 (cited above, §§ 83-101) and in Mozer (cited above, §§ 81-95). In particular, the applicants and the Moldovan Government submitted that both respondent Governments had jurisdiction, while the Russian Government submitted that they had no jurisdiction. 33. 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). 34. 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 330-31; Catan and Others, cited above, §§ 109-10; and Mozer, cited above, § 99). 35. 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). 36. 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 (see 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, cited above, §§ 116‑120; 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). 37. 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). 38. It follows that the applicants in the present case fell within the jurisdiction of the Russian Federation under Article 1 of the Convention. Consequently, the Court dismisses the Russian Government’s objections ratione personae and ratione loci. 39. The Court will hereafter determine whether there has been any violation of the applicants’ rights under the Convention such as to engage the responsibility of either respondent State (see Mozer, cited above, § 112). ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
40. The applicants complained of a violation of Article 5 § 1 of the Convention, owing to their detention on the basis of unlawful decisions by the “MRT” authorities. The relevant parts of Article 5 § 1 read:
“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;
... (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;
...”
AdmissibilityApplication no. 48145/10

41. The Russian Government argued that after the passage of over eleven years since the relevant events, the Court’s supervision of the observance of the first applicant’s rights would not be “practical and effective”. They therefore invited the Court to end its examination of the case. 42. The Court notes that the first applicant lodged his application in 2010, shortly after his conviction, and cannot be faulted for the time that has passed since then (Mîrca v. the Republic of Moldova and Russia, no. 7845/06, § 60, 27 April 2021). In the absence of any measures capable of depriving the first applicant of his victim status, the Court considers that continuing the examination of the case will serve as an effective protection of his rights. 43. Therefore, the Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. Application no. 8387/15
44. In respect of the second applicant, the Russian Government submitted that his complaint under Article 5 of the Convention should be rejected for failure to submit it within six months. They explained that if the Transdniestrian remedies were considered ineffective by the Court, then the second applicant should not have waited for the “MRT” Supreme Court to give a final ruling on the case and should have lodged his application within six months of his conviction on 16 June 2014 by the first-instance “MRT” court. 45. The second applicant disagreed and argued that he could not be blamed for appealing his conviction before the “MRT” courts. 46. The Court reiterates the general principles concerning the calculation of the six-month period as summarised in Sabri Güneş v. Turkey ([GC], no. 27396/06, § 54, 29 June 2012). 47. The Court has previously found the absence of an effective remedy in the Russian Federation in respect of complaints of unlawful detention by the “MRT” authorities (see Mozer, cited above, §§ 211 et 218; and Draci v. the Republic of Moldova and Russia, no. 5349/02, § 41, 17 October 2017) and that in their respect the six-month period started running from the date when the applicant had been released (Istratiy v. the Republic of Moldova and Russia, no. 15956/11, § 31, 17 September 2019). The Court sees no reason to depart from that finding in the present case. 48. In particular, the Court finds that the applicant’s alleged unlawful detention constituted a continuous situation which ended on 5 August 2014. The applicant submitted his application on 3 February 2015 before the expiry of the six-month period. 49. Therefore, the Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

Article of the Convention at issue: Article 13
Outcome: no_violation