SECOND SECTION
 
 
 
 
 
CASE OF MANGÎR AND OTHERS v. THE REPUBLIC OF MOLDOVA AND RUSSIA
 
(Application no. 50157/06)
 
 
 
 
 
 
 
JUDGMENT
 
 
 
 
 
STRASBOURG
 
 
17 July 2018
 
 
FINAL
 
03/12/2018
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mangîr and Others v. the Republic of Moldova and Russia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Robert Spano, President,
 Paul Lemmens,
 Işıl Karakaş,
 Nebojša Vučinić,
 Valeriu Griţco,
 Dmitry Dedov,
 Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 26 June 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 50157/06) 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 five Moldovan nationals, Mr Ștefan Mangîr, Mr Vitalie Vasiliev, Mr Igor Dațco, Mr Constantin Condrea and Mr Alexandru Pohila (“the applicants”), on 1 December 2006. 2. The applicants were represented by Mr A. Bivol, a lawyer practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol, and the Russian Government were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicants complained that their detention had been contrary to Article 5 § 1 of the Contention. They also complained under Article 3 of the Convention that the conditions of their detention had amounted to inhuman and degrading treatment and that they had been subjected to ill-treatment. 4. On 10 April 2012 the application was communicated to the respondent Governments. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants, who are police officers, were born in 1967, 1978, 1976, 1979 and 1964 respectively. The first and second applicants live in Chișinău and Caușeni and the remaining applicants live in Bender. A. The applicants’ arrest and alleged ill-treatment
6. On 14 June 2006 officers Mangîr, Vasiliev and Condrea, who were conducting a criminal investigation in Tiraspol, were arrested by the secret service of the self-proclaimed “Moldovan Republic of Transdniestria” (“MRT”)[1]. During their arrest they managed to call the Bender police station. 7. The other two applicants (officers Daţco and Pohila) went to Tiraspol to clarify the reasons for the arrest of their colleagues, but were also arrested upon their arrival. 8. The applicants were placed in the Tiraspol Remand Centre (IVS Tiraspol). 9. On 17 June 2006 officers Pohila, Daţco and Vasiliev were released without charge and without any explanation for their arrest. 10. On 18 June 2006 officer Mangîr was allegedly beaten up and injected with an unknown substance, which rendered him unconscious for four days. After his release he was admitted for in-patient treatment in the hospital of the Ministry of Internal Affairs of the Republic of Moldova, where he was diagnosedwith, inter alia, concussion. 11. On 20 June 2006 the Tiraspol City Court issued a warrant for officer Mangîr to be detained for thirty days. On 23 June 2006 the “MRT” authorities released officers Mangîr and Condrea. The head of the “MRT” secret service declared in an interview that the officers had been released after Russian authorities had “given assurances” that Moldovan authorities would not “kidnap people” in the “MRT”. 12. The applicants were accused in the “MRT” media of being members of “black squadrons” created for the purpose of kidnapping politicians and other persons causing nuisance to the Moldovan authorities. According to the applicants, during their detention they were questioned by the “MRT” secret service and forced to declare that in Tiraspol they had been trying to kidnap “MRT” politicians. Officers Pohila, Daţco and Vasiliev were allegedly beaten on the soles of their feet and threatened with the killing of members of their families, as well as with being transferred to cells occupied by common criminals, where they would be ill-treated or even killed. 13. Officer Condrea was allegedly subjected to so-called “Palestinian hanging” for up to seven hours and was taken to his cell unconscious thereafter. B. Conditions of the applicants’ detention
14. The applicants described as follows their conditions of detention at the Tiraspol Remand Centre. The cells in which they had been held had been in the basement and had not had access to natural light. In the absence of ventilation and because of overcrowding it had been difficult to breathe. Officer Condrea submits that he was detained in the same cell as that in which Mr Ilie Ilaşcu had been detained (for more details see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004‑VII). 15. During their detention the applicants did not have any daily exercise and were not given access to a shower; they could not receive parcels containing food from their relatives, they did not have bed linen and they were not allowed to be seen by doctors. C. The actions undertaken by the Moldovan authorities
16. After the applicants’ release the Moldovan authorities initiated two sets of criminal proceedings concerning their unlawful detention and their alleged ill-treatment while in detention. However, several years later the investigation was discontinued. 17. The applicants were also subjected to medical check-ups, which found no traces of violence on their bodies. Only one applicant, Stefan Mangîr, was found to be suffering from the consequences of concussion. II. RELEVANT DOMESTIC LAW AND PRACTICE OF THE REPUBLIC OF MOLDOVA AND OTHER RELEVANT MATERIALS
18. Reports by inter-governmental and non-governmental organisations, the relevant domestic law and practice of the Republic of Moldova, and other pertinent documents were summarised in Mozer v. the Republic of Moldova and Russia ([GC], no. 11138/10, §§ 61-77, ECHR 2016). THE LAW
19. The applicants submitted that they had been arrested and detained unlawfully, contrary to Article 5 § 1 of the Convention. They further complained under Article 5 §§ 3 and 4 of the Convention that they had not been brought before a judge in order for the lawfulness of their arrest to be decided upon and therefore could not appeal against a non-existent decision to detain them. The applicants also complained under Article 3 of the Convention that they had been held in inhuman conditions of detention, ill‑treated and refused medical assistance. They lastly complained of a violation of Article 13 of the Convention since they had not had a remedy before the Moldovan or Russian courts. I. JURISDICTION
20. The Court must first determine whether the applicants fell within the jurisdiction of the respondent States for the purposes of the matters complained of, within the meaning of Article 1 of the Convention. A. The parties’ submissions
21. The applicants submitted that both respondent Governments had jurisdiction. 22. The Moldovan Government submitted that they had positive obligations to secure the applicants’ rights. 23. For their part, the Russian Government argued that the applicants did not fall within their jurisdiction and that, consequently, the 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 Ilaşcu and Others (cited above); Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04 and 2 others, ECHR 2012 (extracts); and Ivanţoc and Others v. Moldova and Russia (no. 23687/05, 15 November 2011) was wrong and at variance with public international law. B. The Court’s assessment
24. The Court notes that the parties in the present case have positions concerning the matter 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). Namely, the applicants and the Moldovan Government submitted that both respondent Governments had jurisdiction, while the Russian Government submitted that they had no jurisdiction. 25. 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, §§ 311-19), Catan and Others (cited above, §§ 103-07) and, more recently, Mozer (cited above, §§ 97-98). 26. In so far as the Republic of Moldova is concerned, the Court notes that in Ilaşcu and Others, Catan and Others 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 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). 27. 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). 28. In so far as the Russian Federation is concerned, the Court notes that in Ilașcu and Others it 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 Ilașcu and Others, cited above, § 382). The Court also found in subsequent cases concerning the Transdniestrian region that up until July 2010, 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, §§ 116-20; Catan and Others, cited above, §§ 121-22; 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 (see Mozer, cited above, §§ 110-11). 29. The Court sees no grounds on which to distinguish the present case from Ilașcu and Others, Ivanţoc and Others, Catan and Others, and Mozer (all cited above). 30. 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. 31. 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). II. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 1, 3 AND 4 OF THE CONVENTION
32. The applicants complained that their arrest and detention had been unlawful and contrary to Article 5 § 1 of the Convention. They also submitted that their rights, as guaranteed by Article 5 §§ 3 and 4 of the Convention, had been breached. The relevant parts of Article 5 read as follows:
Article 5
“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:
... (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;
 ...”
“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
A. Admissibility
33. The Court considers that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, and that they are not inadmissible on any other grounds. The Court therefore declares them admissible. B. Merits
34. The applicants complained that neither their arrest nor their detention had been ordered and carried out in accordance with a procedure prescribed by law, as required by Article 5 § 1 of the Convention. 35. The respondent Governments did not make any submissions on the merits of this complaint. 36. The Court reiterates that it is well established in its case-law on Article 5 § 1 of the Convention that any deprivation of liberty must not only be based on one of the exceptions listed in sub-paragraphs (a) to (f) but must also be “lawful”. Where the “lawfulness” of detention is in issue, including the question of whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law; it also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see, for example, Del Río Prada v. Spain [GC], no. 42750/09, § 125, ECHR 2013; and Mozer, cited above, § 134). 37. The Court reiterates that in Mozer it held that the judicial system of the “MRT” was not a system reflecting a judicial tradition compatible with the Convention (see Mozer, cited above, §§ 148-49). For that reason it held that the “MRT” courts and, by implication, any other “MRT” authority, could not order the applicant’s “lawful” arrest or detention, within the meaning of Article 5 § 1 of the Convention (see Mozer, cited above, § 150). 38. In the absence of any new and pertinent information proving the contrary, the Court considers that the conclusion reached in Mozer is valid in the present case too. 39. The Court must next determine whether the Republic of Moldova fulfilled its positive obligation to take appropriate and sufficient measures to secure the applicants’ rights under Article 5 § 1 of the Convention (see paragraph 27 above). In Mozer, the Court held that Moldova’s positive obligations related both to measures needed to re-establish its control over the Transdniestrian territory, as an expression of its jurisdiction, and to measures to ensure respect for individual applicants’ rights (see Mozer, cited above, § 151). 40. As regards the first aspect of Moldova’s obligation, to re-establish control, the Court found in Mozer that, from the onset of the hostilities in 1991-1992 until July 2010, Moldova had taken all the measures in its power (Mozer, cited above, § 152). Since the events complained of in the present case took place before the latter date, the Court sees no reason to reach a different conclusion (ibid.). 41. Turning to the second part of the positive obligations, namely to ensure respect for the applicants’ rights, the Court notes that the Moldovan authorities made efforts to secure the applicants’ rights. In particular, a criminal investigation was initiated in respect of the applicants’ detention by the “MRT” authorities (see paragraph 16 above).
42.

Outcome for Article 3: no_violation