SECOND SECTION
CASE OF LYPOVCHENKO AND HALABUDENCO
v. THE REPUBLIC OF MOLDOVA AND RUSSIA
(Applications nos. 40926/16 and 73942/17)
 
JUDGMENT
 
Art 1 • Jurisdiction of Russia and Republic of Moldova over the “Moldavian Republic of Transnistria” (MRT) • Ongoing military presence of the Russian Federation in Transnistria, contrary to Moldovan Government’s will, renewed calls for the withdrawal of its troops, economic and political support of the Russian Federation for the “MRT” regime • No grounds warranting departure from findings in previous cases on jurisdiction in respect of Transnistria • Responsibility of Russia for acts of the “MRT” authorities • No responsibility on the part of Moldova as positive obligations fulfilled
Art 3 • Inhuman and degrading treatment • Inadequate conditions of detention • Failure to provide sufficient medical assistance and treatment • Repeated forcible psychiatric hospitalisation and treatment
Art 5 § 1 (a) and (c) • Art 6 § 1 (criminal) • Unlawful arrest, detention and conviction • De facto “MRT” authorities and courts not constituting a “tribunal established by law” • No basis for assuming “MRT legal system” as a whole reflected a judicial tradition compatible with the Convention
Art 1 P1 • Control of the use of property • Unlawful seizure and forfeiture of money posted as bail
Art 2 P4 • Freedom of movement • Unlawful interference with the freedom to return to the “MRT” • Potential deprivation of liberty contrary to the Convention on the basis of an unlawful search-and-arrest warrant issued by a de facto “MRT” court
Art 13 • Lack of an effective remedy
Art 34 • Hinder the exercise of the right of application • No appearance of a failure on respondent States’ part to comply with their obligation
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
20 February 2024
 
FINAL
 
20/05/2024
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Lypovchenko and Halabudenco v. the Republic of Moldova and Russia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Arnfinn Bårdsen, President,
 Jovan Ilievski,
 Egidijus Kūris,
 Pauliine Koskelo,
 Saadet Yüksel,
 Diana Sârcu,
 Davor Derenčinović, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the applications (nos. 40926/16 and 73942/17) 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 a Ukrainian national, Mr Oleksandr Lypovchenko and a Moldovan national, Mr Oleg Halabudenco (“the applicants”), on 7 July 2016 and 29 September 2017 respectively;
the decision to give notice to the Moldovan and Russian Governments (“the Governments”) of the application no. 40926/16, and of the complaints concerning under Articles 8 and 13 of the Convention, Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4 to the Convention in application no. 73942/17 and to declare inadmissible the remainder of this application;
the decision to give priority to the application no. 40296/16 (Rule 41 of the Rules of Court);
the decision to inform the Ukrainian Government of application no. 40926/16 in view of the applicant’s nationality (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court) and the absence on their part of any indication that they wished to intervene;
the parties’ observations;
Having deliberated in private on 23 January 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The cases concern allegations of various breaches of the applicants’ rights in the self-proclaimed “Moldovan Republic of Transnistria” (a separatist administration on the territory of the Republic of Moldova – 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)). 2. In application no. 40926/16 the applicant, Mr Oleksandr Lypovchenko, complained of the alleged unlawfulness of his arrest and conviction by the de facto authorities of the “MRT”; his detention in allegedly inhuman conditions (including psychiatric treatment allegedly not required by his condition); his inability to obtain medical documents in support of his application to the Court and to communicate with the Court; and the absence of effective remedies. He relied on Articles 3, 5, 6, 13 and 34 of the Convention. 3. In application no. 73942/17 the applicant, Mr Oleg Halabudenco, complained of the interference with his professional activities in Tiraspol, which he had been unable to continue because of an arrest warrant issued in respect of him by the de facto “MRT” authorities; his forfeiture of the amount that he had posted as bail; the restriction of his freedom of movement as a result of the arrest warrant issued by the de facto “MRT” authorities; and the absence of any effective remedies for his grievances. He relied on Articles 8 and 13 of the Convention, Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4 to the Convention. 4. The applicants were born in 1979 and 1969, respectively; they live in Dnestrovsk and in Chișinău, respectively. They were represented by Mr A.Postică and Ms N. Hriplivîi, lawyers practising in Chișinău. 5. The Governments were represented by their respective Agents. 6. On 16 March 2022 the Committee of Ministers of the Council of Europe, within the context of a procedure launched under Article 8 of the Statute of the Council of Europe, adopted Resolution CM/Res(2022)2, by which the Russian Federation ceased to be a member of the Council of Europe as of 16 March 2022. 7. On 22 March 2022 the Court, sitting in plenary session, in accordance with Rule 20 § 1, adopted the “Resolution of the European Court of Human Rights on the consequences of the cessation of membership of the Russian Federation to the Council of Europe in light of Article 58 of the European Convention on Human Rights”. It stated that the Russian Federation would cease to be a High Contracting Party to the Convention on 16 September 2022. 8. On 5 September 2022 the Plenary Court took formal note of the fact that the office of judge with respect to the Russian Federation would cease to exist after 16 September 2022. This, as a consequence, meant that there was no longer a valid list of ad hoc judges who would be eligible to take part in the consideration of cases where the Russian Federation was the respondent State. 9. By a letter of 8 November 2022, the Russian Government were informed that, inter alia, the Court intended to appoint one of the sitting judges of the Court to act as an ad hoc judge for the examination of those applications against that State that the Court continued to have jurisdiction to deal with (applying by analogy Rule 29 § 2 of the Rules of Court). The Russian Government were invited to comment on that arrangement by 22 November 2022, but they did not submit any comments (Kutayev v. Russia, no. 17912/15, §§ 5-8, 24 January 2023). 10. Accordingly, in the present case the President of the Chamber decided to appoint an ad hoc judge from among the members of the composition, applying by analogy Rule 29 § 2 (b). THE FACTS
11. The facts of the case may be summarised as follows. Circumstances of Mr LypovchenKo’s case (no. 40926/16)The applicant’s arrest and conviction

12. On 7 July 2015 the applicant was arrested by the de facto “MRT authorities” and charged with inciting the public to engage in activities against the “MRT constitutional regime” (Публичные призывы к осуществлению экстремистской деятельности) by allegedly expressing critical opinions on social media about the “MRT” and a twenty‑year-old handwritten note in his diary saying “Transnistria can be ruled only if the UN forces are introduced”. 13. He was detained – on the basis of pre-trial arrest warrants issued by the “Tiraspol City Court” – from 9 July 2015 until 28 March 2016. 14. In the course of the related court proceedings, the applicant was unable to appoint a lawyer of his own choosing or to defend himself, as the de facto “MRT court” concluded that – owing to his alleged diagnosis of schizophrenia – he could not be allowed to refuse the services of a court‑appointed lawyer and to represent himself. On 21 January 2016 the de facto “MRT court”, at the prosecutor’s request, ordered the removal of the applicant from the courtroom until the delivery of his sentence on 28 March 2016; he was thus deprived of any possibility to address the court directly. 15. On 28 March 2016 the de facto “Tiraspol City Court” convicted him of extremism and sentenced him to three years and six months’ imprisonment, to be served in a semi-open prison – namely, prison no. 3 (Учреждение исполнения №3, УИН-3). 16. On 10 May 2016, following an appeal by the applicant, the de facto “MRT Supreme Court” upheld the sentence of 28 March 2016, noting also that the applicant had been correctly removed from the courtroom owing to multiple breaches of public order during court hearings. Conditions of the applicant’s detention and his forcible hospitalisation on a prison hospital’s psychiatric ward
17. According to the applicant, he was initially detained in the basement and in the pre-trial detention centre of the de facto “Tiraspol militia”; subsequently (from 20 April until 14 or 15 August 2016) he was held in the temporary detention facility of Prison no. 3 in Tiraspol (СИЗО УИН-3), and then until December 2018 in Prison no. 1 in Hlinaia (УИН-1) – with a temporary transfer to the psychiatric ward of the hospital of Prison no. 3 in Tiraspol from 13 June until 15 August 2017. The applicant was released from detention on 29 December 2018 after serving his full sentence. 18. According to the applicant, the material conditions of his detention were characterised by overcrowding, inmates being allowed to smoke around non-smokers, a daily one-hour walk outside his cell, water and food unfit for consumption, and access to shower facilities only once per week. 19. Even though it had been decided that the applicant would serve his sentence in a semi-open prison, the de facto “Tiraspol City Court” decided on 15 August 2016 to transfer him to Prison no. 1 in Hlinaia, a closed-regime prison, for his alleged failure to respect prison discipline. According to the applicant this constituted a sanction imposed for his inability to work owing to his deteriorating state of health. 20. To protest against his arrest, ill-treatment (see paragraph 29 below) and improper detention conditions the applicant went on hunger strike three times: from 7 July until 13 August 2015, from 3 until 28 September 2015, and from 17 March until 18 May 2016. 21. In the light of his hunger strike, the applicant was forcibly subjected to hospitalisation and psychiatric assessment from 15 July until 11 August 2015; that assessment concluded that the schizoid psychopathy (which had been diagnosed prior to his imprisonment) from which he suffered did not affect his discernment and did not require any medical treatment. According to the applicant, he was administered psychotropic drugs without his consent and was never given information about the medication administered to him. 22. In the course of another criminal investigation against him in respect of charges of bodily injuries inflicted on the applicant’s partner, on 29 February 2016 a de facto “MRT investigator” ordered another psychiatric assessment of the applicant. On the basis of that decision, in March 2016 the applicant was forcibly subjected to hospitalisation on the psychiatric ward of the temporary detention facility of Prison no. 3 in Tiraspol and administered psychotropic treatment. For that reason, he again went on hunger strike from 17 March until 18 May 2016. Medical assistance in prison
23. The applicant submitted that during his detention he had not been provided with medical assistance that was adequate for his health problems (hepatitis C and thrombophlebitis), which had continued to deteriorate; moreover, he had been refused access to external medical consultations. 24. On 15 March 2016 in reply to a complaint lodged by the applicant’s mother regarding insufficient medical assistance afforded to her son, the “MRT Ministry of Justice” informed her that the applicant had been diagnosed by prison medical authorities as suffering from dermatitis and varicose veins; it also informed her that he had been prescribed medicine to treat vasodilatation and blood clotting, antibiotics and vitamins. 25. On 18 May 2016, the administration of Prison no. 3 informed the applicant’s mother that the condition of the applicant’s varicose veins had deteriorated following his above-mentioned hunger strike. 26. On 6 March 2017 the de facto “MRT Ministry of Justice” informed the applicant’s mother that the applicant had been examined by various specialists in prison and had been prescribed magnesium sulphate, Piracetam (a psychostimulant sometimes prescribed for vertigo), vitamin B, Allohol (a dietary supplement used to stimulate bile production and facilitate digestion) and Papaverine (a medication to improve blood circulation). The same letter stated that he had also been diagnosed with chronic pancreatitis and chronic gastro-duodenitis, and was suffering from the consequences arising from an organic lesion of the central nervous system; a committee was to examine the level of his disability. 27. An excerpt from the applicant’s medical file provided to his mother on 18 October 2017 referred to various medical investigations carried out by prison medical authorities in the course of 2017 that confirmed a diagnosis of encephalopathy, internal and external hydrocephaly and an increased size of the liver and spleen. The document does not refer to any treatment prescribed and/or administered to the applicant. Another letter dated 22 August 2018 informed the applicant’s mother that in March 2018 a vascular surgeon had confirmed that the applicant had varicose veins in his legs and had prescribed him aspirin. 28. In August 2018 the applicant was transferred to the surgery unit of another prison for an assessment of his condition and a decision on further treatment. The applicant’s alleged inability to obtain and to share documents for the purposes of his application to the Court
29. During his detention, the applicant submitted that he had been ill‑treated on 7, 8 and 14 April 2016 for being on hunger strike and for refusing orders of the prison guards to hand over a copy of the sentence imposed on him by the de facto “Tiraspol City Court” on 28 March 2016. He had intended to give the document to his mother to hand over to his lawyer for the purpose of preparing his application to the Court. The applicant complained of the way in which he was being ill-treated. On 12 May 2016 the de facto “Tiraspol militia” refused to investigate his allegations, but confirmed that the applicant was not allowed to hand over to his mother any kind of document when she was visiting her son in prison. 30. Requests lodged by the applicant’s mother for information about the medical check-up to which the applicant had been subjected upon entering prison and for a copy of his prison medical file were refused on 1 and 3 June 2016 by the de facto “MRT Ministry of Justice”, which stated that upon his incarceration, no signs of ill-treatment had been identified and that the use of such information was “for official purposes” and that its availability was reserved for other “authorities” only. The applicant’s complaints to the Russian and Moldovan authorities
31. The applicant’s mother complained to Moldovan and Russian authorities of the applicant’s unlawful detention in the “MRT”. She also sought the assistance of the Ukrainian Embassy in the Republic of Moldova. 32. On 21 July 2015 the Moldovan authorities initiated a criminal investigation into the applicant’s kidnapping and into the usurpation of official powers by the “MRT officials” who had convicted and detained the applicant. On 28 February 2018 charges were laid against two “MRT officials”; because they could not be found by investigators, a search-and-arrest warrant in respect of them was issued. The investigation was subsequently suspended but resumed on 4 April 2019. 33. On 8 October 2015 the consular section of the Ukrainian Embassy in the Republic of Moldova informed the applicant’s mother that its staff had visited the applicant on 18 August 2015 and that he had not complained about prison conditions. 34. On 31 December 2015 the Prosecutor General’s Office of the Russian Federation replied to an enquiry lodged by the applicant’s mother that the applicant’s arrest in the “MRT” had not involved any breach of Russian law on the territory of the Russian Federation. 35. On 3 June 2016 the Moldovan Reintegration Bureau informed the applicant’s mother of the efforts undertaken by the Moldovan authorities – including diplomatic outreach to the “MRT” political representative in the Transnistrian settlement process, and to the OSCE Mission in Moldova. The Moldovan authorities repeatedly requested the applicant’s release and that his human rights, including his right to be afforded medical assistance, be respected. 36. Following an extraordinary appeal by the applicant’s lawyer, on 22 November 2016 the Supreme Court of Justice of the Republic of Moldova quashed the judgments of the de facto “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 that all relevant material be forwarded to the Prosecutor General’s Office of the Republic of Moldova for further action. Circumstances of Mr Halabudenco’s case (no. 73942/17)Background and measures taken in respect of the applicant

37. From 2014 until 2016, the applicant was a part-time lecturer at a university in Tiraspol (a city in the “MRT”). 38. On 2 April 2016 the de facto “MRT” authorities apprehended the applicant and remanded him in custody on charges of taking a bribe from a student (T.)
39. On 5 April 2016 the de facto “Tiraspol City Court” set bail at 18,400 Transnistrian roubles (approximately 1,400 euros (EUR) at the relevant time). On the same day the applicant posted the bail and was released from custody. Since then the applicant has left the Transnistrian region and has been living in Chișinău. 40. On 23 December 2016 the de facto “MRT investigation authority” sent the case for trial to the de facto “Tiraspol City Court”. 41. On 1 February 2017 the applicant requested the court to examine the case in his absence. However, on 17 March 2017 the de facto “Tiraspol City Court” rescinded the decision to release the applicant on bail in favour of ordering his preventive arrest, ordering that the applicant be apprehended and remanded in custody. The court also issued a search-and-arrest order in respect of the applicant and suspended proceedings pending the results of that search. 42. Following an appeal by the applicant, on 4 April 2017 the de facto “MRT Supreme Court” confirmed the decision of the first-instance court and ordered that the bail posted by the applicant be forfeit and paid into the “MRT treasury”. The applicant’s complaints to Russian and Moldovan authorities
43. On 12 August 2016 the applicant lodged a complaint with the Prosecutor General’s Office of the Republic of Moldova, arguing that he had been the victim of a police provocation organised by the de facto “MRT authorities” and seeking that his rights be protected. On 26 September 2016 the Moldovan authorities initiated a criminal investigation into the applicant’s complaints but suspended it on 29 June 2018, having been unable to identify the perpetrators. 44. On 4 September 2018 the applicant sought the assistance of the Moldovan Ministry of Reintegration, but their attempts to obtain information from the de facto “MRT authorities” failed. 45. On 16 January 2017 the applicant sent a letter to the Russian Minister of Foreign Affairs, complaining that he had been the victim of a police provocation organised by the de facto “MRT authorities” and seeking the protection of his rights. 46. In reply, on 4 February 2017 the Russian Ministry of Foreign Affiairs informed the applicant that the Russian Federation did not exercise jurisdiction on the territory of the “MRT”. RELEVANT MATERIAL
47. A number of items of relevant material have been summarised in Mozer v. the Republic of Moldova and Russia [GC] (no. 11138/10, §§ 61-77, 23 February 2016). United Nations
48. The relevant parts of the United Nations General Assembly Resolution “Complete and unconditional withdrawal of foreign military forces from the territory of the Republic of Moldova”, adopted on 22 June 2018, UN Doc. A/RES/72/282, read as follows. “... Recognizing that the stationing of foreign military forces on the territory of the Republic of Moldova, without its consent, violates its sovereignty and territorial integrity, and that this is a problem that must be resolved in good faith, unconditionally, without further delay and in a peaceful manner,
Recalling the repeated past calls of the Republic of Moldova, which were reiterated at the twenty-fourth meeting of the Organization for Security and Cooperation in Europe Ministerial Council, held in Vienna in December 2017, for the full withdrawal of Russian military forces and armaments from its territory, ... Emphasizing the commitment by the Russian Federation to complete the withdrawal of its military forces and armaments from the territory of the Republic of Moldova within a specific timetable, as agreed at the summit of the Organization for Security and Cooperation in Europe held in Istanbul, Turkey, in 1999, ... Stressing that the Operational Group of Russian Forces is not a part of the military component of the Joint Control Commission established under the 1992 ceasefire agreement, which also includes a rotating Russian contingent, and, as such, has not been entrusted with any peacekeeping or other legal mandate,
Taking note with concern of the continuous illegal joint military exercises of the Operational Group of Russian Forces with the paramilitaries of the separatist entity in the eastern part of the country, which endangers the security situation, disregards the sovereignty and territorial integrity of the Republic of Moldova and undermines the international efforts aimed at the peaceful resolution of the protracted Transnistrian conflict,
Recognizing that the completion of the withdrawal of the Operational Group of Russian Forces, and the armaments that it guards, from the territory of the Republic of Moldova will demonstrate respect for its sovereignty, territorial integrity and permanent neutrality,
1. Expresses deep concern about the continued stationing of the Operational Group of Russian Forces and its armaments on the territory of the Republic of Moldova without the consent of that State Member of the United Nations;
2. Urges the Russian Federation to complete, unconditionally and without further delay, the orderly withdrawal of the Operational Group of Russian Forces and its armaments from the territory of the Republic of Moldova ...”
49. Presenting his follow-up report on human rights in the Transnistrian region after a visit that he made in 2018, the UN Human Rights Senior Expert, Thomas Hammarberg, stated on 5 February 2019:
“Time constraints did not allow for thorough analysis of all areas covered by the comprehensive 2013 report. It was nonetheless possible to seek information and understand developments on implementation procedures such as the steps taken to promote a culture of human rights, gender equality, rights of persons with disabilities, measures against HIV and TB epidemics. Issues related to respect for Roma rights and rights of other minority groups were also covered. I am pleased to note a growing human rights awareness in the Transnistrian region and that the situation had generally improved in some areas since my 2013 report. One such positive aspect was the increased civil society contribution to promoting rights of persons with disabilities and an increased awareness about those rights. There are positive developments in preventing and addressing issues of domestic violence, HIV and tuberculosis. However, further systemic measures are required to address some of the outstanding challenges and to ensure full implementation of human rights standards. To this end, it is important to develop a comprehensive human rights plan of action; to strengthen human rights mechanisms (including the Ombudsman office) and complaints procedures; to develop systematic collection of disaggregated data on human rights facts; to promote human rights awareness and education in relevant settings and to work with mass media to bolster human rights culture. Creating a culture of human rights requires that people are aware of their rights and of avenues they could use to complain when feeling that these are denied or violated. For this, positive and constructive engagement with civil society is of key importance. Decisions are taken in Transnistrian region that international treaties on human rights should be respected. This requires, among other aspects, that those performing the law making, law enforcement, prosecution, judiciary and penitentiary functions, act with professional competence and impartial objectivity. I repeat my previous recommendation that the penitentiary system should be thoroughly reformed. High rates of arrest and imprisonment, as well as detention conditions remain an area of concern. It would be important to conduct an urgent priority review and reforms in the areas of pre-trial arrest, prison sentences and conditions of detention to significantly reduce the number of persons in detention. ... Ambiguous legal provisions regarding political activities of NGOs need to be reviewed not to intimidate the broad range of issues covered by civil society human rights activism. In this context, it would be of importance that security services cease the practice of routine “discussions” with active NGOs.”
50. The relevant parts of the report produced by the United Nations Special Rapporteur on the situation of human rights defenders, Mr Michel Forst, following his visit to the Republic of Moldova from 25 until 29 June 2018 (UN Doc. A/HRC/40/60/Add.3), read as follows. “Human rights defenders in the Transnistrian region
70. Civil society organizations and human rights defenders do not enjoy a safe and enabling environment in the Transnistrian region. The Special Rapporteur received reports that human rights defenders were not able to work freely in the region, and that they were subjected to various forms of intimidation, threats (including to relatives) attacks, harassment, arbitrary detention and reprisals. They are also under the tight control of security services and law enforcement authorities. The work of human rights defenders is often perceived by authorities as subversive, and security reasons have occasionally been used to restrict their activities. Nevertheless, the Special Rapporteur welcomes the fact that the human rights of people with disabilities are being taken into consideration in the region. 71. According to reports, civil society organizations work in an environment characterized by severe restrictions on freedom of expression, association and assembly. People who are independent sources of information are persecuted and their work is hindered; media outlets are placed under tight control and censorship is exercised; certain websites and online forums have been closed and people are persecuted for their opinions. While the laws allow public assemblies, authorizations for public protests are rarely granted, and when they are granted, they come with restrictions. Freedom of association is similarly circumscribed. All non-governmental activities have to be coordinated with local authorities, and organizations risk reprisals if they do not comply. 72. Civil society organizations working on human rights from the right bank of the Nistru river no longer have access to the region. The Promo-LEX Association was the only known human rights organization working consistently on human rights in the Transnistrian region until 2016, when the de facto authorities prohibited it from working there. Other groups such as journalists, lawyers and public officials, have also had their access to the Transnistrian region limited. The work of development agencies with local non-governmental organizations has to be coordinated with the de facto authorities. 73. A new section introduced to the law on non-governmental organizations in 2017 established that organizations receiving funds from abroad would be included on a register of “foreign agents”, and thus would not be allowed to participate in activities perceived as political. In the event of non-compliance, organizations could be closed down. The fact that human rights were not expressly mentioned in the law as a non-political issue raised concern among civil society organizations working on human rights. The Special Rapporteur notes that the authorities have agreed with civil society organizations based in the region to create a mixed consultative body to develop regulations on the implementation of the new provisions of the law. 74. Reports have been received of threats being made to lawyers and human rights defenders trying to protect the rights of people undergoing judicial proceedings. Journalists and bloggers have also been arbitrarily arrested, intimidated and persecuted. ... 91. The Special Rapporteur recommends that key decision makers in the Transnistrian region:
(a)  Ensure that domestic legislation complies with international standards on democracy, the rule of law and human rights law;
(b)  Review and abolish all administrative and legislative provisions that restrict the rights of civil society organizations, including the rights to freedom of expression, peaceful assembly and association;
(c)  Ensure a safe and enabling environment for human rights defenders, journalists and lawyers, and establish a genuine, meaningful and regular dialogue with civil society organizations;
(d)  Grant civil society organizations from the right bank of the Nistru river access to the Transnistrian region.”
Organisation for Security and Co-operation in Europe (OSCE)
51. The OSCE Annual Reports from 2010 onwards make no reference to any developments in respect of a withdrawal of Russian arms and military equipment from the Republic of Moldova. 52. The Annual Report for 2011 refers to the resumption of negotiations in the “5+2” format in 2012 after a five-year hiatus, which focused on practical issues such as the reopening of rail freight traffic through Transnistria and the disposal of radioactive waste. 53. The Annual Report for 2016 refers to the signing of the Berlin Protocol, in which the Moldovan authorities and the “MRT” side committed themselves to undertaking specific steps towards building mutual confidence in respect of: the legalisation by apostille of Transnistrian university diplomas; the use of vehicles from Transnistria on international roads; the establishment of a legal framework for the implementation of a telecommunications agreement; the field of ecology; cooperation on crime-related matters and in respect of freedom of movement; the functioning of Latin-script schools in Transnistria; access on the part of Moldovan farmers to their farmlands on “MRT”-controlled territory; and other priorities. These initiatives make up the “Berlin-plus” package of confidence‑building measures; however, as at the end of 2022 no information had been made public regarding the form or on progress of any possible cooperation in respect of criminal cases. 54. The OSCE Mission to Moldova has repeatedly expressed concern about unsanctioned military exercises in the Security Zone in 2018, conducted either by the “MRT” armed forces or the Operational Group of Russian Forces (the Russian military contingent stationed in the Republic of Moldova). European Union
55. The relevant parts of a research study entitled “The frozen conflicts of the EU’s Eastern neighbourhood and their impact on the respect of human rights” commissioned by the European Parliament’s Subcommittee on Human Rights and submitted on 8 April 2016, read as follows. “...[I]n order to seek international recognition, the de facto authorities have set up an institutional-legal framework which is largely similar to the ones in recognised states, and thus in a way they are mimicking state-like functions. Hence, Transnistria has a developed de jure framework for the protection of human rights. The constitution contains explicit and detailed commitments to human rights; moreover, the de facto authorities even pledged unilaterally to respect several international human rights agreements. Since 2006, Transnistria has also had an Ombudsman responsible for the protection of human rights. However, the career path of the Ombudsman, Vassily Kalko, raises some concerns about his impartiality, taking into account that before his appointment he worked at the Investigation Department of the Ministry of Justice of the de facto authorities. However, while de jure in place, de facto these institutions essentially serve not the protection of human rights, but the survival and stability of the regime. Hence, victims of human rights violations have only very limited possibilities to seek justice. This is particularly the case because the Transnistrian judiciary system is highly dependent on the government, and in many cases it executes their will instead of providing justice. ... The legal system in Transnistria suffers from a large number of weaknesses and incoherences regarding respect for human rights. This is partially due to the inherently poor legal quality of the laws passed, and partially due to the massive systemic influence that political and business groups have on the legislative system. ... Separatist entities offer few prospects for the few well-trained legal professionals who do not intend to join the de facto government structures. Widespread corruption, incoherence concerning the system of laws, weak legal education as well as major shortcomings in the rule of law are all compelling reasons for them to leave. For Transnistrian lawyers, both Russia and Moldova are obvious destinations for working outside of the separatist entity. At this point, victims of human rights violations can mostly rely on assistance provided by civil society activists and organisations. The latter also play a key role in monitoring the human rights situation in the separatist entity, which is particularly important as the international community has only very limited access to Transnistria.”
56. The relevant parts of the Resolution issued by the Euronest Parliamentary Assembly (the inter-parliamentary forum comprising members of the European Parliament and of the national parliaments of Ukraine, Moldova, Armenia, Azerbaijan and Georgia) on the deterioration of the human rights situation in the regions of Transnistria, Abkhazia, Tskhinvali Region/South Ossetia, Crimea and parts of Donetsk and Luhansk Oblast (2018/C 99/01), adopted on 15 March 2018, read as follows. “THE EURONEST PARLIAMENTARY ASSEMBLY,
... A. whereas the deterioration of the human rights situation in the regions of Transnistria, Abkhazia, Tskhinvali Region/South Ossetia and Crimea and in parts of Donetsk and Luhansk Oblast is alarming;
B.  whereas people living in these territories have limited or no access to the justice system; whereas the legitimate authorities have no access to those areas to administer justice;... D.  whereas the so-called authorities on the ground have manifested a very limited will to effectively allow human rights and basic freedoms to be enjoyed by the local population;
E.  whereas the Russian Federation bears the responsibility for the human rights violations, as it is directly or indirectly influencing the developments in the conflict areas by providing financial, military and economic assistance to the so-called authorities on the ground;
... 7. Calls on the Russian Federation, which has direct or indirect influence over the so-called ‘local authorities’ in the conflict areas, to ensure that human rights are protected, which is its obligation under international humanitarian law;
8. Calls on the European Court of Human Rights to consider with the highest possible priority all applications for redress coming from these conflict areas, and the cases of detainees taken from these areas to Russia, as the so-called judicial system in the conflict areas, as well as in Russia, does not provide legal remedies in these cases; ...”
57. The relevant parts of the European Parliament resolution of 5 May 2022 on the state of play of EU-Moldova cooperation (2022/2651(RSP)), read as follows. “The European Parliament,
... F.  whereas in the Transnistrian region of the Republic of Moldova, Russia maintains at least 1 500 troops on the ground, supplemented by an additional 5 000 soldiers from the so-called armed forces of Transnistria;
G.  whereas on 22 April 2022 Major General Rustam Minnekayev, deputy commander of Russia’s central military district, stated that one of the goals of Russia’s ongoing invasion of Ukraine is to create a land corridor to the Transnistrian region; whereas Major General Minnekayev also falsely claimed that acts of oppression of the Russian-speaking population had been observed in Transnistria;
H.  whereas on 25, 26 and 27 April 2022 a number of security incidents took place in the Transnistrian region, including a grenade attack on the building of the so-called state security ministry in Tiraspol, explosions damaging radio masts in the village of Maiac, and alleged gunshots fired around the Cobasna ammunition depot;
I.  whereas the Cobasna depot, located within the Transnistrian region on the Ukraine-Moldova border, contains approximately 22 000 tonnes of Soviet-era ammunition and military equipment guarded by the Operational Group of Russian Forces (OGRF); whereas, in spite of commitments made in 1999 and again in 2021, the Russian Federation has failed to ensure the full destruction of these weapons; whereas concerns persist that this equipment might be utilised in armed conflict in either an operational capacity or to exert pressure on the Moldovan and Ukrainian authorities;
J.  whereas Russia has used its gas exports to Moldova as a tool for advancing the Kremlin’s economic and geopolitical interests in the country, most recently by artificially creating a gas supply crisis in the latter part of 2021;
K.  whereas Moldova’s main supply of electricity comes from the Transnistrian region from a power plant owned by the Russian company Inter RAO;
... 21. Expresses serious concern over the recent developments on the territory of the Transnistrian region and condemns them as dangerous acts of provocation undertaken in a highly volatile security situation; calls for calm in order to preserve the security and well-being of the people living on both sides of the Nistru river and in the neighbouring countries; welcomes, in this regard, the calm and restrained reaction of the authorities in Chişinău, which are helping to promote an environment conducive to a peaceful and lasting settlement of the conflict;
22. Reiterates its firm and unwavering support for the independence, sovereignty and territorial integrity of the Republic of Moldova within its internationally recognised borders;
23. Expresses its concern at the threat to the security and the environment of the region and beyond posed by the munitions stored in the Cobasna depot and calls on the international community to support the Moldovan authorities’ efforts to remove or destroy these dangerous weapons;
24. Rejects and expresses concern about the statement of 3 March 2022 by the de facto authorities in the Transnistrian region announcing an end to the settlement process and making a renewed call for the recognition of the so-called independence of Transnistria; calls on the Russian Federation to fully and unconditionally withdraw its military forces and armaments from the Transnistrian region of Moldova, in accordance with the repeated requests of the Moldovan authorities and with respect for the Republic of Moldova’s sovereignty and territorial integrity;...”
58. The relevant parts of the European Parliament resolution of 19 May 2022 on the implementation of the EU Association Agreement with the Republic of Moldova (2021/2237(INI)), read as follows. “The European Parliament,
...C.  whereas on 22 April 2022, Major General Rustam Minnekayev, deputy commander of Russia’s central military district, stated that one of the goals of Russia’s ongoing invasion of Ukraine is to create a land corridor to the Transnistrian region; whereas Major General Minnekayev also falsely claimed that acts of oppression of the Russian-speaking population had been observed in Transnistria;
... 20. Stresses the inadmissibility of the weaponisation of the gas supply from Russia in order to put political pressure on the Government of Moldova to change its geopolitical orientation and refrain from living up to the legitimate desires of the Moldovan electorate; ... 21. Underlines the need to increase power generation capacity in Moldova, which is currently 80 % reliant on electricity produced in the Transnistria region; welcomes the successful synchronisation of the electricity grids of Moldova and Ukraine with the Continental European Grid on 16 March 2022, which will help to ensure their stability and security of supply; .... 29. Rejects and expresses concern over the 3 March 2022 statement of the authorities in the occupied Transnistria region of Moldova, announcing an end to the settlement process and issuing a renewed call for the recognition of the so-called independence of Transnistria; reiterates its support for a comprehensive and peaceful settlement of the Transnistria conflict through the 5+2 negotiation process, based on the sovereignty and territorial integrity of Moldova, within its internationally recognised borders, with a special status for the Transnistrian region within a viable Moldovan state; underlines that any resolution to the Transnistrian issue must respect Moldova’s sovereign right to choose its own defence and foreign policy orientation; supports efforts to extend the benefits of the DCFTA and the visa-free regime to the Transnistrian region, which would enable significant growth in mobility and trade with the region;
31. Calls on Moldova, the Russian Federation, the EU Member States and other international partners to cooperate on the total removal and destruction of about 20 000 tonnes of old Soviet-era ammunition stored at the Cobasna ammunition depot, which represents a grave danger for the security of people and the environment on both banks of the Dniester river, given that it is well past its expiry date; expresses its concern over the numerous military exercises conducted by the Russian military forces in Transnistria and calls on the Russian Federation to completely and unconditionally withdraw its military forces and armaments from the Transnistria region in an orderly manner, in accordance with the repeated requests of the Moldovan authorities and with respect for Moldova’s sovereignty and territorial integrity;
32. Expresses its concern over the deteriorating human rights situation in the Transnistrian region, notably the persecution of persons critical of the de facto administration and the deployment of the Russian army, and restrictions on the public assemblies and activities of local NGOs; reminds the Russian Federation of the responsibility it has regarding respect for human rights in the Transnistria region, as confirmed by several rulings of the European Court of Human Rights (ECtHR); calls on the Russian authorities to execute all ECtHR judgments relating to violations of human rights and the right to freedom and security in the Transnistria region; ...”
Council of Europe
59. It its Opinion 300(2022) of 15 March 2022, the Parliamentary Assembly of the Council of Europe noted:
“Through its attitude and actions, the leadership of the Russian Federation poses a blatant menace to security in Europe, following a path which also includes the act of military aggression against the Republic of Moldova and in particular the occupation of its Transnistrian region, the act of military aggression against Georgia and the subsequent occupation of two of its regions in 2008, the illegal annexation of Crimea and the Russian Federation’s role in eastern Ukraine, which culminated in the illegal recognition of the self-proclaimed republics of Donetsk and Luhansk as “independent States”. 60. By its Resolution 2463 (2022) of 13 October 2022 entitled “Further escalation in the Russian Federation’s aggression against Ukraine” the Parliamentary Assembly of the Council of Europe called on the Russian Federation to withdraw its troops from the territory of the Republic of Moldova. 61. The relevant part of the Reykjavík Declaration “United around our values” adopted at the Fourth Summit of the Heads of State and Government of the Council of Europe on 16-17 May 2023 read as follows. “We stand in solidarity with those affected by Russia’s war of aggression against Ukraine and Russia’s aggression against Georgia which we condemn in the strongest possible terms. We call, collectively, on the Russian Federation to comply with its international obligations and to immediately withdraw completely and unconditionally its forces from Ukraine, Georgia and the Republic of Moldova. We reassert our unwavering support for their sovereignty, independence and territorial integrity, within their internationally recognised borders.”
Freedom House
62. The Freedom House annual reports entitled “Freedom in the World” for 2017‑2022 have constantly rated Transnistria as a 2 (out of 12) on its “rule of law” index, but with a zero rating in respect of an independent judiciary and due process and a 1 for protection from the illegal use of force and equal treatment. Other developmentsIn the Republic of Moldova

63. On 2 May 2017, the Moldovan Constitutional Court adopted judgment no. 14 on the interpretation of Article 11 of the Moldovan Constitution (permanent neutrality), the relevant parts of which read as follows. “180. Article 11 of the Constitution provides that the Republic of Moldova proclaims its permanent neutrality. Although its second paragraph is specific about the Republic of Moldova not admitting the dislocation of foreign military troops on its territory, since the Soviet occupation of the current territory of the Republic of Moldova (1944-1991) until present in the eastern part of the country are dislocated the occupation troops of the Russian Federation. In fact, the Soviet/Russian occupation has never ceased in the eastern part of the country until present day, despite the declaration of independence of the Republic of Moldova. The Russian Federation has recognised [the independence] but has withdrawn its army only from the western part of the Moldovan territory (11% of the territory of the Republic of Moldova remaining under occupation). 181. The fact that the Russian Federation has not withdrawn its occupation troops from the eastern part of the country, but, on the contrary, has consolidated its military presence in the Transnistrian part of the Republic of Moldova, constitutes a violation of the constitutional provisions concerning the independence, sovereignty, territorial integrity and permanent neutrality of the Republic of Moldova, as well as a violation of international law.”
64. On 29 May 2019 the Government of the Republic of Moldova adopted the “Instruction on the certification of civil-status events occurring and recorded in the localities on the left bank of the Dniester and in Bender municipality”, which simplified the procedure for recognising and registering marriages, divorces, births, and deaths recorded in Transnistria. In Transnistria
65. On 27 April 2017 the de facto “MRT authorities” enacted a law according to which the Russian flag shall be flown next to the “MRT” flag in all official settings, including in the official headquarters of the de facto “MRT administration, courts, and prosecutor’s offices”. 66. On 22 January 2019 the Russian Federation opened a consular section in the “MRT”, despite the protests of the Moldovan authorities, and a Transnistrian “socio-cultural centre” in Moscow. 67. On 27 June 2016 the “MRT Criminal Code” was amended with a view to making it a criminal offence to express disrespect or to distort “the positive role of the peacekeeping mission of the Russian Federation or belittling the merits of the Russian Federation in maintaining peace, security and stability in Transnistria”, on pain of imprisonment for up to seven years (Article 278‑3). On 10 June 2022 further amendments were made in the “MRT Criminal Code” making it a criminal offence for persons living in the region to lodge deliberately false complaints with the law-enforcement agencies of other States (the list of which is to be established by the “MRT President”) with the purpose of initiating proceedings in respect of “MRT officials” in order either to prevent them from or to seek revenge for them carrying out their “lawful” official duties (Article 280-1). An aggravating factor may be constituted by the circumstances in which an investigation or other procedural acts (including interim or preventive measures) are taken in respect of “MRT officials”. The criminal offence is punishable by up to eight years’ imprisonment. The “MRT Criminal Code” was also amended to make it a criminal offence to lodge deliberately a false complaint with the law‑enforcement agencies of other States against “MRT nationals” in respect of acts (or failures to act) allegedly committed in Transnistria and is punishable by up to five years’ imprisonment (Article 302). THE LAW
PRELIMINARY ISSUE
68. The Court observes that the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022 the date on which the Russian Federation ceased to be a Party to the Convention. The Court therefore decides that it has jurisdiction to examine the present application (see Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others, § 73, 17 January 2023, Ukraine and the Netherlands v. Russia (dec.) [GC], nos. 8019/16, 43800/14 and 28525/20, § 389, 30 November 2022, and, mutatis mutandis, Pivkina and Others v. Russia (dec.), nos. 2134/23 and 6 others, §§ 56-57, 6 June 2023). JOINDER OF THE APPLICATIONS
69. Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court). ADMISSIBILITY
70. The Russian Government submitted that the complaints of both applicants in respect of the Russian Federation fell outside the Court’s jurisdiction because the acts that had taken place within the “MRT” did not fall under the responsibility of the Russian Federation. They further submitted that the applicant in case no. 40926/16 (“the first applicant”) had failed to exhaust the available domestic remedies in the Republic of Moldova (both inside and outside the Transnistrian region). 71. The Moldovan Government submitted that the applicant in case no. 73942/17 (“the second applicant”) had failed to exhaust the available domestic remedies before the constitutional authorities of the Republic of Moldova. 72. The Court finds it appropriate, before examining the admissibility and merits of each complaint lodged by the applicants, to examine these two objections – regarding jurisdiction and the non-exhaustion of domestic remedies –, which could affect all of the complaints. Jurisdiction
73. The Court notes that it has considered the Russian Government’s objections of inadmissibility ratione loci and ratione temporis in previous cases and rejected them (Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 111, 23 February 2016, and Eriomenco v. the Republic of Moldova and Russia, no. 42224/11, § 47, 9 May 2017). The Court will now consider if any further arguments were submitted on these matters that would warrant a departure from its previous findings. The parties’ submissions
(a)   The applicants
74. The applicants argued that there had not been any essential change in the situation on the ground after July 2010 that would warrant a departure from the Court’s findings in the above-cited Catan and others and Mozer judgments, arguing that both respondent Governments had jurisdiction. 75. In respect of the Republic of Moldova, the applicants noted the efforts made by the Moldovan authorities to assist certain victims of abuse in the “MRT”, and the political statements made by the Moldovan authorities and their involvement in various forms of negotiation aimed at the settlement of the conflict. However, the applicants emphasised the different stance taken by the Moldovan President, Igor Dodon, throughout his term of office from 2016 to 2019; his actions had allegedly reduced the effectiveness of the Moldovan government’s efforts to restore its control over the Transnistrian region. 76. The applicants argued that, overall, the Moldovan authorities had failed to take measures to secure their individual Convention rights. 77. In respect of the Russian Federation, the applicants noted its ongoing military presence, the increase in military activity after 2011 (including Russian military exercises and joint Russian-Transnistrian military exercises) and the 2019 visit of the Russian Minister of Defence, Serghei Shoigu, to Transnistria to decorate “MRT” soldiers. The applicants emphasised the political control exercised by Russia in Transnistria, as manifested by the presence of polling stations in Transnistria set up for the purposes of Russian parliamentary elections in 2011, 2016 and 2018 and presidential elections in 2012 and 2018 – despite the protests of Moldovan authorities. They also noted that a new Russian consular office had been opened in 2013; it had soon closed, but had resumed its operations in 2019. The applicants also argued that Russia provided ongoing economic support to the “MRT authorities” – either by supplying gas free of charge or by providing funds for the purpose of supplementing pensions and other welfare payments in the region. The applicants also outlined the amendments that had been made to the “MRT Criminal Code” that criminalised any complaints made against “MRT officials” or the Russian presence in Transnistria (see paragraph 67 above). (b)   The Moldovan Government
78. The Moldovan Government submitted that no significant change had occurred after July 2010 to warrant a departure from the Court’s previous findings on jurisdiction in respect of Transnistria. They noted the continuation of the Russian military presence in the region, the absence of any moves to withdraw its military equipment and the increase in the number of military exercises and incidents involving the Operational Group of Russian Forces and the “MRT” forces. 79. With reference to the Moldovan Constitutional Court judgment of 2 May 2017 (see paragraph 63 above), the Moldovan Government contended that the Transnistrian region was under Russian military occupation, in the light of the Russian military presence, the lack of consent to that presence on the part of the Moldovan authorities, and the ability of the Russian Federation to exercise authority on the ground through a proxy administration (therefore displacing the authority of the legitimate Moldovan administration). 80. The Moldovan Government referred to the economic support provided by Russia in the form of gas free of charge and non-refundable aid, such as money, goods and services, worth an estimated 100 million US dollars per year from 2010 until 2016 and to the political control exerted by Russia, as exemplified by the operation of polling stations in Transnistria in connection with Russian general and presidential elections – despite the disapproval of the Moldovan authorities. 81. They agreed that President Igor Dodon’s foreign policy had differed from that of the executive but argued that there was no evidence that the President’s actions had had any effect on the applicant’s individual case or on the country’s overall efforts to restore control over the Transnistrian region. In this respect, they invited the Court to distinguish between the present situation and the statements made by the then Moldovan President Vladimir Voronin that had resulted in a breach of the State’s obligations under Article 34 of the Convention in the case of Ilașcu and others (cited above, § 482). 82. They concluded that the Republic of Moldova had jurisdiction in so far as it had a positive obligation to secure the applicants’ rights and that the Russian Federation had jurisdiction owing to its continuous military presence in the region. (c)   The Russian Government
83. The Russian Government submitted that the “MRT” was a sovereign territory of the Republic of Moldova, that “MRT authorities” were not part of the Russian Federation’s system of public authorities and that Russia could therefore not be held accountable for the acts or omissions of the “MRT authorities” and that the applicants did not fall within its jurisdiction. Therefore, they argued that the applications were inadmissible ratione loci and personae. 84. With reference to the case-law of the International Court of Justice and of the International Criminal Tribunal for the former Yugoslavia (specifically Mozer, cited above, §§ 93-94), the Russian Government argued that the criteria for “effective control” or “occupation” had not been met. They submitted that their military activities in the “MRT” had a defensive, rather than an offensive nature, and were not aimed at establishing military control over a region; rather, they were aimed at countering the projection of military power by the United States and NATO member countries. In any event, they contended that the “necessity and the expediency of the Russian military contingent abroad” was not relevant to their compliance with their human rights obligations under the Convention.

Outcome for Article 6: violation