SECOND SECTION
CASE OF MÎRCA v. THE REPUBLIC OF MOLDOVA AND RUSSIA
(Application no. 7845/06)
 
 
 
 
JUDGMENT
 
STRASBOURG
27 April 2021
 
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Mîrca v. the Republic of Moldova and Russia,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
 Aleš Pejchal, President,
 Egidijus Kūris,
 Carlo Ranzoni, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no. 7845/06) against the Republic of Moldova 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 Alexei Mîrca (“the first applicant”) and Mr Dumitru Mîrca (“the second applicant”), on 8 February 2006;
the decision to give notice to the respondent Governments of the application, except for the complaint under Article 3 (ill-treatment) submitted by the second applicant, and to declare inadmissible this latter complaint;
the parties’ observations;
the decision to reject the Government’s objection to examination of the application by a Committee;
Having deliberated in private on 30 March 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present case concerns the alleged unlawful detention of the applicants, the prohibition to contact their relatives and the ill-treatment suffered by the first applicant while in detention. THE FACTS
2. The first applicant was born in 1949 and lives in Căușeni. The second applicant was born in 1953 and lives in Bender. The applicants were represented by Mr S. Burlaca, a lawyer practising in Chișinău. 3. The Moldovan Government were represented by their Agent, Mr O. Rotari. The Russian Government were represented by their Agent, Mr M. Galperin, Representative of the Russian Federation at the European Court of Human Rights - deputy Minister of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants’ arrest following the arrest of their father
5. The applicants’ father, C.M., participated in the 1992 military conflict on the banks of the Nistru river on the side of the Moldovan authorities and against the forces of the self-proclaimed “Moldovan Republic of Transnistria” (the “MRT” (the “MRT” – see for more details Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, §§ 28-185, ECHR 2004‑VII) and Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, §§ 8-42, ECHR 2012). In 1993 he was charged by the “MRT” authorities with murder, following which he left the “MRT” region and settled in a village under Moldovan control near Bender/Tighina, a town which is controlled by the “MRT”. On 27 June 2004 C.M. was involved in a car accident, following which he was brought unconscious to a hospital in Bender/Tighina. In that hospital he was identified by the “MRT” militia as a fugitive and was later moved to a hospital in Tiraspol. He was handcuffed to the bed and guarded all the time by the “MRT” militia. 6. On 18 July 2004 the applicants visited C.M. in hospital. They stayed overnight at a friend’s house. During the same night C.M. escaped from hospital. On 19 July 2004, at 3 a.m., the “MRT” militia raided the house where the applicants were sleeping and arrested them. 7. On 26 July 2004 the applicants were charged with having committed the criminal offence of assisting in the escape of a detained person. On the same day, the Bender City Court released the second applicant, who undertook not to leave the town (Bender/Tighina). The first applicant was placed in detention pending trial for an undetermined period. On 19 August 2004 the second applicant was re-arrested. 8. On 29 July 2004 a criminal investigation was initiated into the unlawful deprivation of the applicants’ liberty. The 129-page criminal file includes interviews with witnesses, attempts to identify the owners of cars involved in the applicants’ abduction, provision of personal protection to their brother, examination of the circumstances in which the applicants’ brother ended in “MRT” detention after his accident, requests for information from the “MRT” authorities concerning any criminal investigations against the applicants, and other investigative actions. 9. On 26 October 2004 the Centre for Human Rights of Moldova (the Ombudsman institution) replied to the applicants’ brother that all of its previous efforts to ensure the observance of the applicants’ rights by the “MRT” authorities had been futile. His complaint and annexes were forwarded to the OSCE mission in Moldova and to the Ministry of Reintegration for further action. 10. On 26 November 2004 an “MRT” prosecutor started a criminal investigation against the applicants’ as regards their assistance in the escape of a detained person. On the same day, they were indicted for that offence. The prosecutor mentioned, inter alia, that during the investigation the applicants had alleged having been ill-treated by the “MRT” militia, but that in the absence of any evidence of such ill-treatment the complaint was rejected by a prosecutor’s decision of 26 November 2004. 11. On 20 May 2005 the Bender City Court extended the applicants’ detention pending trial until 9 September 2005. The prosecutor in charge of the case attended that hearing; there was no reference to the participation of the applicants or their lawyer. 12. On 16 June 2005 the Bender City Court convicted the applicants of assisting C.M. to escape and sentenced them to three years’ imprisonment. The applicants did not inform the Court of the further course of those proceedings. On 25 July 2006 the first applicant was released from prison on the basis of an amnesty act. 13. On 3 January 2006 the Moldovan Ministry of Internal Affairs replied to the applicants’ brother that, owing to the tensioned situation in Bender, it had not been possible to bring to justice any of the members of the “MRT” militia. Alleged ill-treatment, inadequate conditions of detention and lack of medical assistance
14. According to the first applicant, he was ill-treated almost daily while in pre-trial detention in order to extract confessions from him. He was denied access to a doctor or a lawyer during the first eight days of his detention. According to both applicants, no relatives were allowed to see them. Only once was the first applicant allowed to see his son, who observed that his father was in very bad shape. 15. Initially the applicants were not allowed pens and paper and so no complaint about ill-treatment could be made. All oral complaints to prosecutors went unanswered, as it was considered that the applicants’ case was a political one. Eventually written complaints were made, which were annexed to the criminal file against the applicants and dismissed at a later stage for lack of evidence. According to the applicants, the investigators dismissed the complaints about ill-treatment on the ground that the injuries had been caused as a result of disobeying the prison guards’ instructions. They have not submitted any documents in support of their allegations. 16. The first applicant submitted a copy of a medical certificate dated 16 July 2004, according to which he had been declared healthy and fit for work three days prior to his arrest. After his release from prison on 25 July 2006, on 22 August 2006 he was examined by the Memoria Rehabilitation Centre for Torture Victims, which established that the first applicant had been suffering, inter alia, the consequences of a cerebral trauma with organic post-traumatic cerebral syndrome, traumatic neurosis and anxiety‑depressive disorder. The document concluded that most of the medical findings corroborated his claim that he had been ill-treated. 17. The applicants describde the conditions of their detention, first in the prison in Tiraspol, then in the prison in Hlinaia, as follows. They were held in cells with up to twenty other detainees. They slept on bunk-beds. It was very hot in summer. Sanitary conditions were very poor. The cells lacked access to daylight and had a strong smell. There were no toilets in the cells. According to his lawyers, the second applicant’s state of health has worsened (partial loss of sight, kidney problems) and the prison administration asked his relatives to bring medicines needed for treating him. Alleged censorship of correspondence and limitation of the right of family visits
18. According to the applicants, all their correspondence, including with their family members, was censored during their detention. 19. The applicants were able to communicate with their families only after their conviction on 16 June 2005. Moreover, even representatives of the Organization for Security and Co-operation in Europe (OSCE) were not allowed to meet the applicants. RELEVANT LEGAL FRAMEWORK
20. The relevant materials have been summarised in Mozer v. the Republic of Moldova and Russia [GC] (no. 11138/10, §§ 61-77, ECHR 2016). THE LAW
JURISDICTION
21. The Russian Government argued that the applicants did not come within their jurisdiction. Consequently, the applications should be declared inadmissible ratione personae and ratione loci in respect of the Russian Federation. For their part, the Moldovan Government did not contest that the Republic of Moldova retained jurisdiction over the territory controlled by the “MRT”. 22. 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 v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, §§ 83-101, ECHR 2012 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. The Russian Government expressed the view that the approach to the issue of jurisdiction taken by the Court in Ilaşcu and Others v. Moldova and Russia [GC] (no. 48787/99, ECHR 2004 VII) was wrong and at variance with public international law. 23. The Court observes that the general principles concerning the issue of jurisdiction under Article 1 of the Convention in respect of acts undertaken and facts arising in 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). 24. In so far as the Republic of Moldova is concerned, the Court notes that in Ilaşcu, Catan and Mozer cases 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). 25. 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 had 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). 26. In so far as the Russian Federation is concerned, 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 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 v. Moldova and Russia, no. 23687/05, § 116-20, 15 November 2011; 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 applicants fell within that State’s jurisdiction under Article 1 of the Convention (Mozer, cited above, §§ 110‑11). 27. 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). 28. It follows that the applicants in the present cases 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. 29. 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 3 OF THE CONVENTION
30. The applicants complained about inhuman conditions of detention. The first applicant also complained that he had been ill-treated while in detention in the “MRT”. They all relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Admissibility
31. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. MeritsThe complaint concerning inhuman conditions of detention

32. The applicants submitted that they had been held in inhuman conditions and not provided with medical assistance they needed. They gave detailed descriptions of those conditions (see paragraph 17 above). 33. Neither of the respondent Governments made comments in this respect. 34. The Court notes that the applicants were held in detention in various “MRT” prisons during 2004-2006. It also notes that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the “MRT” region in 2000 and expressed serious concerns regarding the conditions of detention in the “MRT” prisons which they had visited. In 2010 the CPT was not allowed to have private meetings with detainees, prompting it not to visit the region (see Mozer, cited above, §§ 63 and 64). 35. The Court considers that, in view of the detailed description made by the applicants and in the absence of any arguments and evidence to contradict that description, added to the findings made by the CPT in the region and its own findings concerning prisons in “MRT” (see, for instance, Mozer, cited above, § 28 and Ilașcu, cited above, §§ 240-266), it can but conclude that the applicants were held in conditions which are incompatible with the requirements of Article 3, notably the severe overcrowding, lacking sanitary conditions, insufficient access to daylight and insufficient medical assistance, particularly in view of the second applicant’s health problems (see paragraph 17 above). The complaint concerning the first applicant’s ill-treatment
36. The first applicant complained that during his detention pending trial he had been severely beaten in order to extract self-incriminating statements. 37. The respondent Governments did not make any comments in this regard. 38. The Court notes that the first applicant was in good health only three days prior to his arrest and that after his release he was diagnosed with consequences of a cerebral trauma with organic post-traumatic cerebral syndrome and other disorders consistent with his allegation that he had been ill-treated (see paragraph 16 above). In the absence of any materials and arguments contradicting the applicant’s allegations and in view of the medical documents in the file, the Court concludes that the first applicant has been ill-treated while in detention. There has thus been a breach of Article 3 of the Convention in this respect. Responsibility of the respondent StatesThe Republic of Moldova

39. The Court must next determine whether the Republic of Moldova fulfilled its positive obligations to take appropriate and sufficient measures to secure the applicants’ rights under Article 3 of the Convention (see paragraph 24 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 and 1992 until July 2010, Moldova had taken all the measures in its power (Mozer, cited above, § 152). The events complained of in all the present applications concern events predating that case. It therefore sees no reason to reach a different conclusion from that reached in Mozer (cited above, § 152). 41. Turning to the second aspect of the positive obligations, namely to ensure respect for the applicant’s individual rights, the Court found in Ilaşcu and Others (cited above, §§ 348-52) that the Republic of Moldova had failed to fully comply with its positive obligations, to the extent that from May 2001 it had failed to take all the measures available to it in the course of negotiations with the “MRT” and Russian authorities to bring an end to the violation of the applicants’ rights. In the present case, the applicants submitted that the Republic of Moldova had not discharged its positive obligations since various State authorities replied that they could not take action on the territory under the de facto control of the “MRT”. 42. The Court considers that Moldovan authorities did not have any real means of improving the conditions of detention in the “MRT” prisons, nor could they move the applicants to other prisons (see, a contrario, Pocasovschi and Mihaila v. the Republic of Moldova and Russia, no. 1089/09, § 46, 29 May 2018). Moreover, they could not properly investigate the allegations of ill-treatment or of unlawful detention. As is clear from the case-file, the criminal investigations concerning unlawful acts by the “MRT” authorities had to be suspended due to the absence of cooperation by that region, making it impossible to carry out any meaningful prosecution. 43. It also notes that those applicants who had been convicted by “MRT” courts could ask the Moldovan courts to quash those convictions (Mozer, cited above, § 73). 44. In such circumstances, the Court cannot conclude that the Republic of Moldova failed to fulfil its positive obligations in respect of the applicants (see Mozer, cited above, § 154). 45. The Russian Federation
46. In so far as the responsibility of the Russian Federation is concerned, the Court has established that Russia exercised effective control over the “MRT” during the period of the applicants’ detention (see paragraphs 26-28 above). In the light of this conclusion, and in accordance with its case-law, it is not necessary to determine whether or not Russia exercises detailed control over the policies and actions of the subordinate local administration (see Mozer, cited above, § 157). By virtue of its continued military, economic and political support for the “MRT”, which could not otherwise survive, Russia’s responsibility under the Convention is engaged as regards the violation of the applicants’ rights (ibidem).
47.

Outcome for Article 6: no_violation