ITEMID: 001-114082
LANGUAGEISOCODE: ENG
RESPONDENT: MDA;RUS
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF CATAN AND OTHERS v. THE REPUBLIC OF MOLDOVA AND RUSSIA
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed;Remainder inadmissible;No violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Right to education) (the Republic of Moldova);Violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Respect for parents' philosophical convictions;Right to education) (Russia);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;David Thór Björgvinsson;Dean Spielmann;Egbert Myjer;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Ján Šikuta;Josep Casadevall;Karel Jungwiert;Lech Garlicki;Ledi Bianku;Mark Villiger;Mihai Poalelungi;Mirjana Lazarova Trajkovska;Nicolas Bratza
TEXT: 8. The country which subsequently became the Republic of Moldova was created as the Moldavian Soviet Socialist Republic on 2 August 1940 from a part of Bessarabia and a strip of land on the eastern bank of the Dniester (see further Tănase v. Moldova [GC], no. 7/08, §§ 11-17, ECHR 2010-...). This eastern region, now known as Transdniestria, had since 1924, together with a number of territories which are now part of Ukraine, been part of the Moldavian Autonomous Soviet Socialist Republic. The population of Transdniestria was originally composed principally of Ukrainians and Moldovans/Romanians, but from the 1920s onwards it was subject to significant immigration by industrial workers from elsewhere in the Soviet Union, particularly Russians and Ukrainians. In a census organised by the Soviet Union in 1989, the population of Transdniestria was assessed at 679,000, composed ethnically and linguistically of 40% Moldovan, 28% Ukrainian, 24% Russian and 8% others.
9. According to the 1978 Constitution of the Moldavian Soviet Socialist Republic, there were two official languages: Russian and “Moldavian” (Moldovan/Romanian written with the Cyrillic alphabet).
10. In August and September 1989 the Latin alphabet was reintroduced in Moldova for written Moldovan/Romanian, which became the first official language.
11. On 23 June 1990 Moldova proclaimed its sovereignty; on 23 May 1991 it changed its name to the Republic of Moldova; and on 27 August 1991 the Moldovan parliament adopted the Declaration of Independence of the Republic of Moldova, whose territory included Transdniestria.
12. The facts concerning the armed conflict of 1991-1992 and the period up to late 2003 are set out in more detail in Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 28-183, ECHR 2004VII and only a summary of the key events is provided here for ease of reference. The Court notes that in their observations the Russian Government submitted that the facts concerning the armed conflict were not relevant to the issues arising in present case.
13. From 1989 onwards, a movement of resistance to Moldovan independence had been forming in Transdniestria. On 2 September 1990 Transdniestrian separatists announced the creation of the “Moldavian Republic of Transdniestria” (the “MRT”). On 25 August 1991 the “Supreme Council of the MRT” adopted the “declaration of independence” of the “MRT”. On 1 December 1991 a “presidential election”, declared illegal by the Moldovan authorities, was organised in the Transdniestrian provinces and Mr Igor Smirnov claimed to have been elected “President of the MRT”. To date, the “MRT” has not been recognised by the international community.
14. At the time of Moldova’s declaration of independence, it did not have its own army. The USSR’s 14th Army, whose headquarters had been in Chişinău since 1956, remained on Moldovan territory, although from 1990 onwards equipment and personnel began to be withdrawn. In 1991 the 14th Army in Moldova was composed of several thousand soldiers, infantry units, artillery (notably an anti-aircraft missile system), armoured vehicles and aircraft (including planes and strike helicopters). It had a number of ammunition stores, including one of the largest in Europe at Colbaşna in Transdniestria.
15. By Decree no. 234 of 14 November 1991 the President of Moldova declared that ammunition, weapons, military transport, military bases and other property belonging to the military units of the Soviet armed forces stationed in Moldovan territory were the property of the Republic of Moldova. This decree was not given effect within Transdniestria.
16. By a decree dated 5 December 1991, Mr Smirnov decided to place the military units of the 14th Army deployed in Transdniestria under the command of “the National Defence and Security Department of the Moldavian Republic of Transdniestria”. Mr Smirnov appointed the Commander of the 14th Army, Lieutenant-General Iakovlev, as head of the “TRM” “National Defence and Security Department”. In December 1991 Lieutenant-General Iakovlev was arrested by the Moldovan authorities, who accused him of helping the Transdniestrian separatists to arm themselves by using the weapon stocks of the 14th Army. However, he was subsequently released following the intercession of the Government of the Russian Federation.
17. At the end of 1991 and the beginning of 1992 violent clashes broke out between the Transdniestrian separatist forces and the Moldovan security forces, claiming the lives of several hundred people.
18. On 6 December 1991, in an appeal to the international community and the United Nations Security Council, the Moldovan Government protested against the occupation, on 3 December 1991, of the Moldovan towns of Grigoriopol, Dubăsari, Slobozia, Tiraspol and Ribniţa, situated on the left bank of the Dniester, by the 14th Army under the command of Lieutenant-General Iakovlev. They accused the authorities of the USSR, particularly the Ministry of Defence, of having prompted these acts. The soldiers of the 14th Army were accused of distributing military equipment to the Transdniestrian separatists and organising the separatists into military detachments which were terrorising the civilian population.
19. In 1991-92 a number of 14th Army military units joined the Transdniestrian separatists. In the Ilaşcu judgment the Court found it established beyond reasonable doubt that Transdniestrian separatists were able, with the assistance of 14th Army personnel, to arm themselves with weapons taken from the stores of the 14th Army stationed in Transdniestria. In addition, large numbers of Russian nationals from outside the region, particularly Cossacks, went to Transdniestria to fight with the separatists against the Moldovan forces. Given the support provided to the separatists by the troops of the 14th Army and the massive transfer to them of arms and ammunition from the 14th Army’s stores, the Moldovan army was in a position of inferiority that prevented it from regaining control of Transdniestria. On 1 April 1992 the President of the Russian Federation, Mr Boris Yeltsin, officially transferred the 14th Army to Russian command, and it thereafter became the “Russian Operational Group in the Transdniestrian region of Moldova” or “ROG”. On 2 April 1992 General Netkachev, the new Commander of the ROG ordered the Moldovan forces which had encircled the town of Tighina (Bender), held by the separatists, to withdraw immediately, failing which the Russian army would take counter-measures. In May the ROG launched attacks against the Moldovan forces, driving them out of some villages from the left bank of the Dniester. In June the ROG intervened officially in favour of the separatists who were losing the city of Tighina, driving out the Moldovan forces.
20. On 21 July 1992 the President of the Republic of Moldova, Mr Mircea Snegur, and Mr Yeltsin signed an agreement on the principles for the friendly settlement of the armed conflict in the Transdniestrian region of the Republic of Moldova (“the ceasefire agreement”).
21. The agreement introduced the principle of a security zone to be created by the withdrawal of the armies of the “parties to the conflict” (Article 1 § 2). Under Article 2 of the agreement, a Joint Control Commission (“the JCC”) was set up, composed of representatives of Moldova, the Russian Federation and Transdniestria, with its headquarters in Tighina. The agreement also provided for a peacekeeping force charged with ensuring observance of the ceasefire and security arrangements, composed of five Russian battalions, three Moldovan battalions and two Transdniestrian battalions under the orders of a joint military command structure which was itself subordinate to the JCC. Under Article 3 of the agreement, the town of Tighina was declared a region subject to a security regime and its administration was put in the hands of “local organs of selfgovernment, if necessary acting together with the control commission”. The JCC was given the task of maintaining order in Tighina, together with the police. Article 4 required Russian troops stationed in the territory of the Republic of Moldova, to remain strictly neutral. Article 5 prohibited sanctions or blockades and laid down the objective of removing all obstacles to the free movement of goods, services and persons. The measures provided for in the agreement were defined as “a very important part of the settlement of the conflict by political means” (Article 7).
22. On 29 July 1994 Moldova adopted a new Constitution. It provided, inter alia, that Moldova was neutral, that it prohibited the stationing in its territory of troops belonging to other States and that a form of autonomy might be granted to regions which included some areas on the left bank of the Dniester. According to Article 13 of the Constitution, the national language was Moldovan, to be written using the Latin alphabet.
23. On a number of occasions from 1995 onwards the Moldovan authorities complained that ROG army personnel and the Russian contingent of the JCC’s peace-keeping force had infringed the principle of neutrality set out in the ceasefire agreement and that, inter alia, Transdniestrians had been able to acquire further military equipment and assistance from the ROG. These allegations were firmly denied by the Russian authorities. In addition, the Moldovan delegation to the JCC alleged that the Transdniestrians had created new military posts and customs checkpoints within the security zone, in breach of the ceasefire agreement. In the Ilaşcu judgment the Court found it established, by the evidence contained in the JCC’s official documents, that in various areas of Transdniestria under the control of the Russian peacekeeping forces, such as Tighina, the Transdniestrian separatist forces were breaching the ceasefire agreement.
24. On 8 May 1997 in Moscow, Mr Petru Lucinschi, the President of Moldova, and Mr Smirnov, the “President of the MRT”, signed a memorandum laying down the basis for the normalisation of relations between the Republic of Moldova and Transdniestria (“the 1997 Memorandum”). Under the terms of the 1997 Memorandum, decisions concerning Transdniestria had to be agreed by both sides, powers had to be shared and delegated and guarantees had to be secured reciprocally. Transdniestria had to be allowed to participate in the conduct of the foreign policy of the Republic of Moldova on questions concerning its own interests to be defined by mutual agreement. Transdniestria would have the right unilaterally to establish and maintain international contacts in economic, scientific, technical, cultural and other fields, to be determined by mutual agreement. The parties undertook to settle conflicts through negotiation, with the assistance where necessary of the Russian Federation and Ukraine, as guarantors of compliance with the agreements reached, and of the Organisation for Security and Cooperation in Europe (OSCE) and the Commonwealth of Independent States (CIS). The 1997 Memorandum was countersigned by the representatives of the guarantor States, namely Mr Yeltsin for the Russian Federation and Mr Leonid Kuchma for Ukraine, and by Mr Helveg Petersen, the President of the OSCE.
25. In November 1999 the OSCE held its sixth summit at Istanbul. During the summit, 54 Member States signed the Charter for European Security and the Istanbul Summit Declaration and 30 Member States, including Moldova and Russia, signed the Agreement on the Adaptation of the Treaty on Conventional Armed Forces in Europe (“the adapted CFE treaty”). The adapted CFE treaty set out, inter alia, the principle that foreign troops should not be stationed in Moldovan territory without Moldovan consent. Russia’s agreement to withdraw from Transdniestria (one of the “Istanbul Commitments”) was set out in an Annex to the adapted CFE Final Act. In addition, the Istanbul Summit Declaration, at paragraph 19, recorded inter alia the commitment of the Russian Federation to withdraw its forces from Transdniestria by the end of 2002:
“19. Recalling the decisions of the Budapest and Lisbon Summits and Oslo Ministerial Meeting, we reiterate our expectation of an early, orderly and complete withdrawal of Russian troops from Moldova. In this context, we welcome the recent progress achieved in the removal and destruction of the Russian military equipment stockpiled in the Trans-Dniestrian region of Moldova and the completion of the destruction of nontransportable ammunition.
We welcome the commitment by the Russian Federation to complete withdrawal of the Russian forces from the territory of Moldova by the end of 2002. We also welcome the willingness of the Republic of Moldova and of the OSCE to facilitate this process, within their respective abilities, by the agreed deadline.
We recall that an international assessment mission is ready to be dispatched without delay to explore removal and destruction of Russian ammunition and armaments. With the purpose of securing the process of withdrawal and destruction, we will instruct the Permanent Council to consider the expansion of the mandate of the OSCE Mission to Moldova in terms of ensuring transparency of this process and coordination of financial and technical assistance offered to facilitate withdrawal and destruction. Furthermore, we agree to consider the establishment of a fund for voluntary international financial assistance to be administered by the OSCE.”
In 2002, during an OSCE Ministerial Conference in Lisbon, Russia was granted a one-year extension for the removal of troops, up until the end of December 2003.
26. Russia did not comply with the commitments given at the OSCE Istanbul Summit and Lisbon Ministerial Conference to withdraw militarily from Transdniestria before the end of 2003. At the OSCE Ministerial Council in December 2003, it was impossible to reach a common position on Transdniestria, and the published statement recorded that:
“Most Ministers noted the efforts made by the Russian Federation to fulfil the commitments undertaken at the OSCE Istanbul Summit in 1999 to complete the withdrawal of Russian forces from the territory of Moldova. They noted that concrete progress was achieved in 2003 on the withdrawal/disposal of some ammunition and other military equipment belonging to the Russian Federation. They appreciated the efforts of all participating States of the OSCE that have contributed to the Voluntary Fund established to support this effort. They were, however, deeply concerned that the withdrawal of the Russian forces will not be completed by 31 December 2003. They stressed the need for the fulfilment of this commitment without further delay.”
The Member States of the North Atlantic Treaty Organisation (NATO) have refused to ratify the adapted CFE until Russia has complied with the Istanbul Commitments.
27. In 2001, the Communist Party were successful in elections and became the governing Party in Moldova. The new President of Moldova, Mr Vladimir Voronin, entered into direct negotiation with Russia over the future of Transdniestria. In November 2003, the Russian Federation put forward a settlement proposal, the “Memorandum on the Basic Principles of the State Structure of the United State” (referred to as the “Kozak Memorandum”, after the Russian politician, Mr Dimitry Kozak, who worked on it). The Kozak Memorandum proposed a new federal structure for Moldova, under which the authorities of the “MRT” would have had a substantial degree of autonomy and guaranteed representation in the new “federal legislature”. The Kozak Memorandum included transitional provisions under which, until 2015, a three-quarters majority in a newly created legislative second chamber, composed of four representatives from Gagauzia, nine from Transdniestria and 13 from the new federal legislature’s first chamber, would have been required to confirm federal organic laws. This would have given the “MRT” representatives in the second chamber an effective veto over any legislation affecting all of Moldova until 2015. On 25 November 2003, having previously indicated his willingness to accept these proposals, Mr Voronin decided not to sign the Kozak Memorandum.
28. In December 2005, a European Union Border Assistance Mission was established to help combat illegal trade between Ukraine and Moldova. In March 2006 Ukraine and Moldova began implementing a 2003 customs agreement under which Transdniestrian companies engaged in cross-border trade had to register in Chişinău in order to be issued documents indicating the goods’ country of origin, in accordance with World Trade Organisation protocols. Ukraine undertook to refuse to permit goods without such export documents to pass across its border.
29. In what was seen as a response to these new customs measures, Transdniestrian representatives refused to continue with the 5+2 talks. Furthermore, in February and March 2005, “in response to the course of action taken by the Moldovan Government aimed at worsening the situation around Transdniestria”, the Russian Duma adopted resolutions asking the Russian Government to introduce an import ban on Moldovan alcohol and tobacco products; to export energy to Moldova (except Transdniestria) at international rates; and to require visas for Moldovan nationals visiting Russia, except residents of Transdniestria.
30. In April 2005 the Russian authorities banned imports of meat products, fruits and vegetables from Moldova, on the ground that domestic hygiene standards had not been complied with in the production of these products. Between March 2006 and November 2007 a ban was placed on importation of Moldovan wine. The International Monetary Fund found that these measures had a combined negative effect on Moldova’s economic growth of 2-3% annually in 2006-2007.
31. In January 2005 Mr Viktor Yushchenko was elected President in Ukraine. In May 2005 the Ukrainian Government introduced a new proposal for the resolution of the Transdniestrian conflict, “Towards a Settlement through Democratization” (summarized in the report of the Parliamentary Assembly of the Council of Europe: see paragraph 64 below). In July 2005, citing the Ukrainian plan, the Moldovan parliament adopted a law, “On the Basic Principles of a Special Legal Status of Transdniestria”. Formal negotiations resumed in October 2005, with the European Union (“EU”) and the United States of America participating as observers (referred to as “the 5+2 talks”).
32. On 20 March 1998 an agreement concerning the military assets of the ROG was signed in Odessa by Mr Viktor Chernomyrdin, the Prime Minister of the Russian Federation, and Mr Smirnov, “President of the MRT”. According to the timetable annexed to the agreement, the withdrawal and decommissioning of certain stocks, to be disposed of by explosion or other mechanical process, was to be completed by 31 December 2001. The withdrawal (transfer and decommissioning) of surplus ammunition and other Russian military equipment and personnel not forming part of the peacekeeping forces was planned to take place by 31 December 2002 at the latest. A number of trainloads of Russian military equipment left Transdniestria between 1999 and 2002.
33. In October 2001 the Russian Federation and the “MRT” signed a further agreement on the withdrawal of the Russian forces. Under that agreement, in compensation for the withdrawal of part of the Russian military equipment stationed in Transdniestria, the “MRT” was granted a reduction of one hundred million United States dollars (USD) in its debt for gas imported from the Russian Federation, and the transfer to it by the Russian Army of part of its equipment capable of being put to civilian use.
34. According to an OSCE press release, 29 railway wagons carrying bridge-building equipment and field kitchens were removed from Colbaşna by the Russian authorities on 24 December 2002. The same press release quoted a declaration by the Commander of the ROG, General Boris Sergeyev, to the effect that the latest withdrawals had been made possible by an agreement with the Transdniestrians under which the “MRT” was to receive half of the non-military equipment and supplies withdrawn. General Sergeyev cited the example of the withdrawal, on 16 December 2002, of 77 lorries, which had been followed by the transfer of 77 Russian military lorries to the Transdniestrians.
35. According to the evidence heard by the Court in the Ilaşcu case, in 2003 at least 200,000 tonnes of Russian arms and ammunition remained in Transdniestria, mainly at Colbaşna, together with 106 battle tanks, 42 armoured cars, 109 armoured personnel carriers, 54 armoured reconnaissance vehicles, 123 cannons and mortars, 206 anti-tank weapons, 226 anti-aircraft guns, nine helicopters and 1,648 vehicles of various kinds (see the Ilaşcu judgment, cited above, § 131). In 2003, the OSCE observed and verified the withdrawal from Transdniestria of 11 trains of Russian military equipment and 31 trains loaded with more than 15,000 tons of ammunition. However, the following year, in 2004, the OSCE reported that only one train containing approximately 1,000 tons of ammunition had been removed.
36. Since 2004 there have been no verified withdrawals of any Russian arms or equipment from Transdniestria. The Court found in Ilaşcu that, at the end of 2004, approximately 21,000 metric tons of ammunition remained, together with more than 40,000 small arms and light weapons and approximately ten trainloads of miscellaneous military equipment. In November 2006, a delegation from the OSCE were allowed access to the ammunition stores and reported that over 21,000 tons of ammunition remained stored there (see paragraph 68 below). The Commander of the ROG reported in May 2005 that surplus stocks of 40,000 small arms and light weapons had been destroyed, but no independent observer was allowed access in order to verify these claims. In their observations in the present case, the Russian Government submitted that most of the weapons, ammunition and military property were removed between 1991 and 2003 and that all that remained in the warehouses were shells, hand grenades, mortar bombs and small-arms ammunition.
37. The parties to the present case agreed that approximately 1,000 Russian servicemen were stationed in Transdniestria to guard the arms store. In addition, the parties agreed that there were approximately 1,125 Russian soldiers stationed in the Security Area as part of the internationally agreed peace-keeping force. The Security Area was 225 km long and 12-20 km wide.
38. Again, it should be noted that the Russian Government contended that events in Transdniestria prior to the schools crisis were not relevant to the issues in the present case.
39. In the Ilaşcu judgment the Court found it uncontested that the arms industry, which was one of the pillars of the Transdniestrian economy, was directly supported by Russian firms including the Rosvoorouzhenie (Росвооружение) and Elektrommash companies. The Russian firm Iterra had bought the largest undertaking in Transdniestria, the Râbniţa engineering works, despite the opposition of the Moldovan authorities. In addition, the Russian Army constituted a major employer and purchaser of supplies in Transdniestria.
40. According to the applicants in the present case, Russia accounted for 18% of the “MRT”‘s exports and 43.7% of its imports, primarily energy. The “MRT” paid for less than 5% of the gas it had consumed. For example, in 2011 Transdniestria consumed USD 505 million worth of gas, but paid for only 4% (USD 20 million). The Russian Government explained that since the “MRT” was not recognised as a separate entity under international law, it could not have its own sovereign debts and Russia did not effect separate gas supplies for Moldova and Transdniestria. The bill for supplying gas to Transdniestria was, therefore, attributed to Moldova. The supply of gas to the region was organised through the Russian public corporation Gazprom and the joint stock company Moldovagaz, which was owned jointly by Moldova and the “MRT”. The debt owed by Moldovagaz to Russia exceeded USD 1.8 billion, of which USD 1.5 billion related to gas consumed in Transdniestria. Gazprom could not simply refuse to supply gas to the region, since it needed pipelines through Moldova to supply the Balkan States.
41. The applicants further alleged that Russia provided direct humanitarian aid to Transdniestria, mostly in the form of contributions to old-age pensions. The applicants claimed that official Russian sources stated that between 2007 and 2010 the total volume of financial assistance to Transdniestria was USD 55 million. The Moldovan Government submitted that in 2011 the “MRT” received financial aid from Russia totalling USD 20.64 million. The Russian Government submitted that the amount of aid given to Russian citizens living in the region for humanitarian purposes, such as the payment of pensions and assistance with catering in schools, prisons and hospitals, was fully transparent, and could be compared with humanitarian aid provided by the European Union. As well as providing aid to the population living in Transdniestria, Russia provided aid to those living in other parts of Moldova.
42. In addition, the applicants claimed that some 120,000 individuals living in Transdniestria had been granted Russian citizenship. These included many of the “MRT” leaders. The Court considers that this should be put in the context of the findings of a census carried out in 2004 by the “MRT Government”, which found, in the area under their control, a population of 555,347 people, approximately 32% of whom came from the Moldovan community, 30% of whom were Russian and 29% were Ukrainian, with small percentages of other national and ethnic groups.
43. According to Article 12 of the MRT “Constitution”, the official languages within the MRT are “Moldavian”, Russian and Ukrainian. Article 6 of the “MRT Law on languages”, which was adopted on 8 September 1992, states that, for all purposes, “Moldavian” must be written with the Cyrillic alphabet. The “law” provides further that use of the Latin alphabet may amount to an offence and Article 200-3 of the “MRT Code of Administrative Offences”, adopted on 19 July 2002, states that:
“Failure by persons holding public office and other persons in the executive and State administration, in public associations, as well as in other organisations, regardless of their legal status and form of ownership, and in other entities, situated on the territory of the MRT, to observe MRT’s legislation on the functioning of languages on the territory of MRT ... entails liability in the form of a fine which may amount to 50 (fifty) minimal salaries.”
44. On 18 August 1994 the “MRT” authorities forbade the use of the Latin script in schools. By a decision of 21 May 1999, the “MRT” ordered that all schools belonging to “foreign States” and functioning on “its” territory had to register with the “MRT” authorities, failing which they would not be recognised and would be deprived of their rights.
45. On 14 July 2004 the “MRT” authorities began taking steps to close down all schools using the Latin script. At the date of adoption of the admissibility decision, there remained only six schools in Transdniestria using the Moldovan/Romanian language and the Latin script.
46. The applicants are 18 children who were studying at Evrica School in Rîbniţa during the period in question and 13 parents (see the annex to this judgment).
47. From 1997 Evrica School used premises situated on Gagarin Street built with Moldovan public funds. The school was registered with the Moldovan Ministry of Education and was using the Latin script and a curriculum approved by that Ministry.
48. Following the “MRT decision” of 21 May 1999 (see paragraph 44 above), Evrika School refused to register, since registration would require it to use the Cyrillic script and the curriculum devised by the “MRT” regime. On 26 February 2004 the building used by the school was transferred by the “MRT” authorities to the “Rîbniţa Department of Education”. In July 2004, following a number of closures of Latin-script schools within the “MRT”, the pupils, parents and teachers of Evrika School took it upon themselves to guard the school day and night. On 29 July 2004 Transdniestrian police stormed the school and evicted the women and children who were inside it. Over the following days local police and officials from the “Rîbniţa Department of Education” visited the parents of children registered with the school, asking them to withdraw their children from the school and to put them in a school registered with the “MRT” regime. The parents were allegedly told that if they did not do so, they would be fired from their jobs and would even be deprived of their parental rights. As a result of this pressure, many parents withdrew their children and transferred them to another school.
49. On 29 September 2004, and following the intervention of the OSCE Mission to Moldova, the school was able to register with the “Tiraspol Chamber of Registration” as a foreign institution of private education, but could not resume its activity for lack of premises. On 2 October 2004 the “MRT” regime allowed the school to reopen in another building, which had previously housed a kindergarten. The building is rented from the “MRT” and the Moldovan Government has paid for it to be refurbished. The school’s repeated requests to be allowed to return to the building situated on Gagarin Street, which is bigger and more appropriate, were rejected on the ground that another school was now using that building. The applicants allege that the rented premises are inappropriate for a secondary school, in that the lighting, corridors and classrooms are not fully adapted and there are no laboratories or sports facilities. The school is administered by the Moldovan Ministry of Education, which pays the teachers’ salaries and provides educational material. It uses the Latin alphabet and a Moldovan curriculum.
50. The applicants filed a number of petitions and complaints with the authorities of the Russian Federation. The Ministry of Foreign Affairs of the Russian Federation replied by making public general statements about the escalation of the conflict around the Moldovan/Romanian-language schools in Transdniestria. Stating that the underlying problem was the ongoing conflict between Moldova and the “MRT”, the Russian Ministry of Foreign Affairs drew the attention of Moldova and the “MRT” to the fact that the use of force to solve the conflict could endanger security in the region and urged them to use various types of negotiations in order to solve the conflict. The applicants also complained about their situation to the Moldovan authorities.
51. The school became the target of a systematic campaign of vandalism, including broken windows. The applicants allege that this campaign started in 2004; the Moldovan Government claim that it started in the autumn of 2007. On 10 April 2008 the Moldovan Ministry of Reintegration asked the Special Representative of the Secretary General of the Council of Europe to intervene to try and bring an end to the attacks. The applicants also allege that the children were intimidated by the local Russian-speaking population and were afraid to speak Moldovan outside the school.
52. On 16 July 2008 the Moldovan Ministry of Reintegration sought the assistance of the OSCE Mission to Moldova in transporting educational and construction material and money for teachers’ salaries across the “border” with the “MRT”.
53. There were 683 pupils at the school during the academic year 20022003. During the year 2008-2009 that number had fallen to 345.
54. The applicants are 26 children who were studying at Alexandru cel Bun School in Tighina, Bender during the period in question and 17 parents, (see the annex). The school had been using premises situated on Kosmodemianskaia Street built with Moldovan public funds and rented for it by the Moldovan authorities. The school was registered with the Moldovan Ministry of Education and was therefore using the Latin script and a curriculum approved by the Ministry of Education.
55. On 4 June 2004, the “MRT Ministry for Education” warned the school that it would be closed down if it did not register with them, and that disciplinary measures would be taken against the head teacher. On 18 July 2004 the school was disconnected from electricity and water supplies and on 19 July 2004 the school administration was notified that it could no longer use the premises on Kosmodemianskaia Street. However, teachers, pupils and parents occupied the building, refusing to leave. Transdniestrian police tried unsuccessfully to reoccupy the premises, and eventually surrendered the building. They withdrew on 28 July 2004. On 20 September 2004, and following various negotiations with international observers, including representatives of the Council of Europe, the school was reconnected to water and electricity.
56. The “MRT” regime allowed the school to reopen in September 2004, but in different premises, rented from the “MRT” authorities. The school is currently using three buildings, located in separate districts of the town. The main building has no cafeteria, science or sports facilities and cannot be reached by public transport. The Moldovan Government provided the school with a bus and computers. They also paid for the refurbishment of the sanitary facilities in one of the buildings.
57. The applicants have filed a number of petitions and complaints with the Russian and Moldovan authorities.
58. There were 1751 pupils at the school in 2002-2003 and 901 in 20082009.
59. The applicants are 46 children who were studying at the Ştefan cel Mare School in Grigoriopol during the relevant period and 50 parents (see the attached annex).
60. In 1996, at the request of the parents and their children, the school, which was using a Cyrillic alphabet curriculum, filed a number of petitions with the “MRT” regime requesting to be allowed to use the Latin script. As a result, between 1996 and 2002, the “MRT” orchestrated a campaign of hostile press reports, intimidation and threats by security forces. These measures reached a climax on 22 August 2002 when Transdniestrian police stormed the school and evicted the teachers, the pupils and their parents who were inside it. On 28 August 2002 the President of the Pupils Committee was arrested and subsequently sentenced to fifteen days’ administrative imprisonment. Following these incidents, 300 pupils left the school.
61. Faced with the occupation of the building by the “MRT” regime, the Moldovan Ministry of Education decided that the school should be transferred temporarily to a building in Doroţcaia, a village about 20 kilometres from Grigoripol and which is under Moldovan control. Each day, pupils and teachers were taken to Doroţcaia in buses provided by the Moldovan Government. They were subjected to bag searches and identity checks by “MRT” officials and also, allegedly, acts of harassment such as spitting and verbal abuse.
62. Representatives of the school filed a number of petitions and complained about this situation to the OSCE, the United Nations Organisation, as well as to the Russian and Moldovan authorities. The Russian authorities replied by urging both Moldova and “MRT” to use various types of negotiations in order to solve the conflict. The Moldovan authorities informed the applicants that they could do nothing further to help.
63. There were 709 pupils at the school in 2000-2001 and 169 in 20082009.
64. On 16 September 2005 the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) of the Parliamentary Assembly of the Council of Europe (PACE) issued a report on “The functioning of the democratic Institutions in Moldova”. The section devoted to Transdniestria reads as follows:
“31. Major new developments have occurred during the last months which the Assembly has to follow very closely and accompany in the best possible way.
32. Following intense diplomatic contacts between Moldova and Ukraine, at the GUAM Summit in Chisinau on 22 April the Ukrainian President Yushchenko announced a 7-point initiative to settle the Transnistrian issue. ...
The main thrust of this new plan is to achieve a long-lasting solution through the democratisation of Transnistria. This would entail:
– the creation of conditions for the development of democracy, civil society, and a multi-party system in Transnistria;
– holding of free and democratic elections to the Transniestrian Supreme Soviet, monitored by the European Union, the OSCE, the Council of Europe, Russia, United States, and other democratic countries including Ukraine;
– the transformation of the current format of peacekeeping operation into an international mission of military and civil observers under the aegis of the OSCE and the expansion of the number of Ukrainian military observers in the region;
– admission by Transniestrian authorities of an international monitoring mission, to include Ukrainian experts, to military-industrial enterprises in the Transniestrian region;
– a short-term OSCE monitoring mission in Ukraine to verify the movement of goods and persons through the Ukrainian-Moldovan border.
33. The full text of the Ukrainian plan was presented on 16-17 May at a meeting of the representatives of the mediators and Moldova and Transnistria in Vinnitsa, Ukraine after the Ukrainian Secretary of Security Council Pyotr Poroshenko and Moldavian presidential aide Mark Tkachuk spent almost a month doing ‘shuttle diplomacy’.
34. The reactions were varied but cautiously positive.
35. On 10 June the Moldovan Parliament adopted a ‘Declaration on the Ukrainian initiative of settlement of the Transnistrian conflict’ as well as two appeals, on demilitarisation and on promoting the criteria of democratisation of the Transnistrian region of the Republic of Moldova ....
36. The declaration welcomed the initiative of President Yushchenko, hoping that it would become ‘a major factor in the achievement by Moldova of its territorial and civil unity’. The parliament however regretted that the Ukrainian initiative did not reflect some important principles of settlement, in the first place the withdrawal of Russian troops; demilitarisation; the principles and conditions of the region’s democratisation and the establishing of a transparent and legal control over the Transnistrian segment of the Moldovan-Ukrainian border. It called for additional efforts by the international community and Ukraine in this respect.
37. The parliament also criticised a number of provisions which might ‘infringe upon the sovereignty of the Republic of Moldova’, such as the co-participation of Transnistria in the conduct of foreign policy of the Republic of Moldova and the proposal to create the so-called conciliation committee. The Parliament insisted on resolving the conflict within the framework of the Moldovan Constitution through dialogue with a new, democratically elected, Transnistrian leadership. There are thus a number of divergences between the Ukrainian initiative and the approach to implementing it chosen by Moldova.
38. The mediators in the Transnistrian conflict (the OSCE, Russia and Ukraine) stated that the plan provided a concrete impetus toward achieving a settlement. At all of their latest meetings they called for resuming direct, continuing dialogue on resolution of the conflict.
39. More delicate is the position of Russia. It is clear that through its military and economic presence and thanks to the strong cultural and linguistic links with Transnistria, Russia would like to retain its strong influence over the territory. The press recently reported the existence of an ‘Action plan of retaining Russian influence in the Moldova Republic’, details of which are kept secret. Russia is still strongly attached to the so-called ‘Kozak Memorandum’ of 2003, which proposed to Moldova a federal solution. Moldova had nearly accepted the plan; it refused to sign it at the last moment, allegedly under Western influence.
40. Over the last months, there have been several signs of tension. For instance, on 18 February the Russian Federation State Duma adopted with a large majority a resolution requesting from the Russian government a number of economic and other sanctions against Moldova, with the exclusion of Transnistria, if the Moldovan authorities did not change their ‘economic blockade of Transdniestria.’ The sanctions included a ban on imports of Moldovan alcohol and tobacco, world market prices for exports of Russian natural gas to Moldova and visas for Moldovans entering Russia.
41. Both appeals adopted by the Moldovan parliament called on the Council of Europe for support and, concerning the democratisation of Transnistria, to engage actively in the process. During our visit in Chisinau our interlocutors repeatedly stressed the importance they attached to the expertise and experience of our organisation in this respect. The documents adopted by the Moldovan Parliament were officially submitted by its Speaker to the Monitoring Committee ‘for examination in the framework of the Moldova’s monitoring exercise’ and for ‘analysis, comments and recommendations, as well as ideas of the Parliamentary Assembly that could contribute to the democratisation of the Transnistrian region and final settlement of the conflict’.
42. At the first sight, the plan should be followed closely by the Council of Europe, as the leading organisation in the field of democracy, human rights and rule of law. The Committee has therefore entrusted us with the responsibility of visiting Kiev, Moscow, Bucharest and Brussels in order to meet the main figures responsible for the Ukrainian plan and get acquainted with all its details. On the basis of this information we will make specific proposals for the Assembly to play an effective part in the plan’s progress.
43. A number of questions remain about the implementation of the Ukrainian plan and the conditions set by the Moldovan parliament. However, against the background of all the failed diplomatic attempts, it has one strong advantage. It combines diplomatic efforts with specific measures for democratisation, in Transnistria but also in Moldova, which must serve as an example. The initiative also comes at the right moment, as it coincides with a major strive for democratisation and European integration in the entire region.
44. Not only Moldova, whose territorial integrity and sovereignty have been violated, but Europe as a whole can no longer afford to have this ‘black hole’ on its territory. Transnistria is a centre of all kinds of illicit trade and, in the first place arms trafficking and all forms of smuggling. Political life continues to be dominated by the secret police; fundamental freedom and liberties are curtailed.
45. One of the most difficult elements appears to be the possibility to organise democratic elections in Transnistria. For this the region needs to have freely functioning political parties, media and civil society. The 27 March local elections in Transnistria (to elect village, settlement, city and district councils, as well as the chairmen of village and settlement councils) showed that real strong opposition is still missing. These elections by the way were considered as a test for the scheduled December 2005 elections for the Transnistrian Supreme Soviet.
46. However, there are some interesting developments, especially concerning a group of Supreme Soviet members led by the Deputy Speaker Evgeny Shevchuk. On 29 April this group initiated ambitious draft changes to the Transnistrian ‘constitution’ aiming at reinforcing this ‘parliament’’s role vis-à-vis the ‘president’ and the executive – for instance by granting it the right to a no-confidence vote on ‘ministers’ and other officials appointed by the ‘president’, or the right to control the work and the spending of the executive. Some more modest changes, as well as a draft law on local administration, stipulating that the chairmen of raion [district] and city councils have to be elected by the councils by secret vote, were adopted on 18 May at first reading. Mr Shevchuk is also promoting a legislative initiate to transform the regional official ‘TV PMR’ into a public broadcasting institution.
47. On 22 June the Supreme Soviet recommended that ‘president’ Smirnov dismiss the ‘minister’ of justice Victor Balala. Balala, who is one the closest allies of the ‘president’, recently decided to transfer registration functions from his ‘ministry’ to a quasi-commercial ‘chamber of experts.’
48. On 22 July the Moldovan parliament approved in two readings the Law on the Main Provisions of a Special Legal Status for Populated Areas on the Left Bank of Dniestr (Transnistria). The law established an autonomous territorial unit which is an inseparable part of Moldova and – within the plenary powers established under the Constitution and legislation of Moldova – decides on questions within its jurisdiction. The law stipulates that populated localities on the left bank of the Dniester may join Transnistria or secede from it on the basis of local referenda and in conformity with the Moldovan legislation.”
65. In the light of this report, PACE adopted a resolution in which it resolved, inter alia, that:
“10. The Assembly welcomes the resumption of negotiations following Ukraine’s optimistic initiative of settling the Transnistrian conflict by giving priority to democratisation. It hopes that the current five-member format, involving Moldova, the Transnistrian region, Russia, Ukraine and the OSCE, will be extended to include also the Council of Europe. It emphasises the need for effective supervision of the border between Moldova and Ukraine, arms stocks and the production of armaments factories. Given their accumulated expertise, the Assembly wishes its rapporteurs to be associated with all these developments.
11. Any settlement of the Transnistrian conflict must be based on the inviolable principle of full respect for Moldova’s territorial integrity and sovereignty. In accordance with the rule of law, any solution must accord with the popular will as expressed in fully free and democratic elections run by internationally recognised authorities.”
66. In its Annual Report for 2004, the OSCE referred to events in Transdniestria as follows:
“...The most disruptive development, however, was the Transdniestrian decision in mid-July to close the Moldovan schools in Transdniestrian territory teaching in Latin script. In response, the Moldovan side suspended its participation in the five-sided political settlement negotiations.
Together with co-mediators from the Russian Federation and Ukraine, the Mission went to extraordinary lengths from mid-July well into autumn to ameliorate the school crisis and to find and implement a solution. The Mission also sought to defuse tensions between the sides concerning freedom of movement, farmlands, and railways.”
In 2004 the OSCE also observed that:
“Only one train containing approximately 1,000 tons of ammunition was removed from the Operative Group of Russian Forces depots in Transdniestria in 2004. Approximately 21,000 metric tons of ammunition remain to be removed, together with more than 40,000 small arms and light weapons and approximately ten trainloads of miscellaneous military equipment. The Mission continued to co-ordinate technical and financial assistance to the Russian Federation for these activities.”
67. The 2005 Annual Report stated:
“The Mission concentrated its efforts on restarting the political settlement negotiations, stalled since summer 2004. The mediators from the Russian Federation, Ukraine, and the OSCE held consultations with representatives from Chisinau and Tiraspol in January, May and September. At the May meeting, Ukraine introduced President Victor Yushchenko’s settlement plan, Toward a Settlement through Democratization. This initiative envisages democratization of the Transdniestrian region through internationally conducted elections to the regional legislative body, along with steps to promote demilitarization, transparency and increased confidence.
In July, the Moldovan Parliament, citing the Ukrainian Plan, adopted a law On the Basic Principles of a Special Legal Status of Transdniestria. During consultations in September in Odessa, Chisinau and Tiraspol agreed to invite the EU and US to participate as observers in the negotiations. Formal negotiations resumed in an enlarged format in October after a 15-month break and continued in December following the OSCE Ministerial Council in Ljubljana. On 15 December, the Presidents of Ukraine and the Russian Federation, Victor Yushchenko and Vladimir Putin, issued a Joint Statement welcoming the resumption of negotiations on the settlement of the Transdniestrian conflict.
In September, Presidents Voronin and Yushchenko jointly requested the OSCE Chairman-in-Office to consider sending an International Assessment Mission (IAM) to analyse democratic conditions in Transdniestria and necessary steps for conducting democratic elections in the region. In parallel, the OSCE Mission conducted technical consultations and analyses on basic requirements for democratic elections in the Transdniestrian region, as proposed in the Yushchenko Plan. At the October negotiating round, the OSCE Chairmanship was asked to continue consultations on the possibility of organizing an IAM to the Transdniestrian region.
Together with military experts from the Russian Federation and Ukraine, the OSCE Mission completed development of a package of proposed confidence- and securitybuilding measures, which were presented by the three mediators in July. The Mission subsequently began consultations on the package with representatives of Chisinau and Tiraspol. The October negotiating round welcomed possible progress on enhancing transparency through a mutual exchange of military data, as envisaged in elements of this package.”
On the question of Russian military withdrawal, the OSCE observed:
“There was no withdrawal of Russian arms and equipment from the Transniestrian region during 2005. Roughly 20,000 metric tons of ammunition remain to be removed. The commander of the Operative Group of Russian Forces reported in May that surplus stocks of 40,000 small arms and light weapons stored by Russian forces in the Transdniestrian region have been destroyed. The OSCE has not been allowed to verify these claims.”
68. In 2006, the OSCE reported as follows:
“The 17 September ‘independence’ referendum and the 10 December ‘presidential’ elections in Transnistria – neither one recognized nor monitored by the OSCE – shaped the political environment of this work ...
To spur on the settlement talks, the Mission drafted in early 2006 documents that suggested: a possible delimitation of competencies between central and regional authorities; a mechanism for monitoring factories in the Transnistrian militaryindustrial complex; a plan for the exchange of military data; and an assessment mission to evaluate conditions and make recommendations for democratic elections in Transnistria. The Transnistrian side, however, refused to continue negotiations after the March introduction of new customs rules for Transnistrian exports, and thus no progress could be made including on these projects. Attempts to unblock this stalemate through consultations among the mediators (OSCE, Russian Federation and Ukraine) and the observers (European Union and the United States of America) in April, May and November and consultations of the mediators and observers with each of the sides separately in October were to no avail. ...
On 13 November, a group of 30 OSCE Heads of Delegations, along with OSCE Mission members gained access for the first time since March 2004 to the Russian Federation ammunition depot in Colbaşna, near the Moldovan-Ukrainian border in northern Transnistria. There were no withdrawals, however, of Russian ammunition or equipment from Transnistria during 2006, and more than 21,000 tons of ammunition remain stored in the region ...”
69. The Annual Report for 2007 stated:
“The mediators in the Transnistrian settlement process, the Russian Federation, Ukraine and the OSCE, and the observers, the European Union and the United States, met four times. The mediators and observers met informally with the Moldovan and Transnistrian sides once, in October. All meetings concentrated on finding ways to restart formal settlement negotiations, which have nonetheless failed to resume. ...
The Mission witnessed that there were no withdrawals of Russian ammunition or equipment during 2007. The Voluntary Fund retains sufficient resources to complete the withdrawal tasks.”
70. In 2008, the OSCE observed:
“Moldovan President Vladimir Voronin and Transnistrian leader Igor Smirnov met in April for the first time in seven years and followed up with another meeting on 24 December. Mediators from the OSCE, Russian Federation and Ukraine and observers from the European Union and the United States met five times. Informal meetings of the sides with mediators and observers took place five times. These and additional shuttle diplomacy efforts by the Mission notwithstanding, formal negotiations in the ‘5+2’ format were not resumed. ...
There were no withdrawals of Russian ammunition or equipment from the Transistrian region during 2008. The Voluntary Fund retains sufficient resources to complete withdrawal tasks.”
71. In its report dated 17 June 2004, “Moldova: Regional Tensions over Transdniestria” (Europe Report no. 157), the International Crisis Group (ICG) found as follows (extract from the Executive Summary):
“Russia’s support for the self-proclaimed and unrecognised Dniestrian Moldovan Republic (DMR) has prevented resolution of the conflict and inhibited Moldova’s progress towards broader integration into European political and economic structures. In its recent and largely unilateral attempts to resolve the Transdniestrian conflict, Russia has demonstrated almost a Cold War mindset. Despite comforting rhetoric regarding Russian-European Union (EU) relations and Russian-U.S. cooperation on conflict resolution and peacekeeping within the Newly Independent States of the former Soviet Union (NIS), old habits appear to die hard. Russia remains reluctant to see the EU, U.S. or the Organisation for Security and Cooperation in Europe (OSCE) play an active role in resolving the conflict because Moldova is still viewed by many in Moscow as a sphere of exclusively Russian geopolitical interest.
It has not been difficult for Russia to exploit Moldova’s political and economic instability for its own interests. Despite having accepted concrete deadlines for withdrawing its troops, Russia has repeatedly back-pedalled while trying to force through a political settlement that would have ensured, through unbalanced constitutional arrangements, continued Russian influence on Moldovan policymaking and prolongation of its military presence in a peacekeeping guise. It has so far been unwilling to use its influence on the DMR [“MRT”] leadership to promote an approach to conflict resolution that balances the legitimate interests of all parties.
Ukrainian and Moldovan business circles have become adept at using the parallel DMR economy to their own ends, regularly participating in re-export and other illegal practices. Some have used political influence to prevent, delay, and obstruct decisions which could have put pressure on the DMR leadership to compromise. These include abolition of tax and customs regulations favourable to the illegal re-export business, enforcement of effective border and customs control, and collection of customs and taxes at internal ‘borders’.
With backing from Russian, Ukrainian and Moldovan economic elites, the DMR leadership has become more assertive. Recognising that international recognition is unlikely, it has focused on preserving de facto independence through a loose confederation with Moldova. Unfortunately, DMR leaders - taking advantage of contradictions in the tax and customs systems of Moldova and the DMR - continue to draw substantial profits from legal and illegal economic activities including re-exports, smuggling and arms production.
The DMR has become a self-aware actor with its own interests and strategies, possessing a limited scope for independent political manoeuvre but an extensive web of economic and other links across Russia, Moldova, and Ukraine. However, it remains heavily dependent on Russian political and economic support and does not like to put itself in a position where it must act counter to Russian policy. Russian and DMR interests often overlap but in some instances DMR leaders have been able to design and implement strategies to avoid Russian pressure, delay negotiations, obstruct Russian initiatives, and undermine Russian policies by playing up disagreements between the co-mediators and capitalising on alternative sources of external support.
Russia’s most recent attempt to enforce a settlement - the Kozak Memorandum in October and November 2003 - has shown that its influence, while pervasive, has clear limits. Russia is unable to push through a settlement without the support of Moldova and the international community, especially key players such as the OSCE, EU, and the U.S. A comprehensive political settlement requires an approach that can bridge the differences between Russia and other key international actors while fairly considering the interests of both the Moldovan government and the DMR.
Despite an understanding that Russia should not be antagonised, the gravitational pull of European integration is strong in Moldova. Recently, even its communist leadership has stressed the need to do more to achieve that goal. The country has rarely been on Western radar screens during the last decade, however, and it will need more demonstrable EU and U.S. backing if it is to resist Russian political and material support for the DMR and Transdniestrian obstruction of the negotiation process. International actors must also help Moldova to secure its own borders against the illicit economic activities which keep Transdniestria afloat and affect its European neighbours as well.
The conflict can only be resolved if the international community uses its influence on Russia bilaterally and within the OSCE. Only then, and with a substantially more determined commitment to political, economic and administrative reform on its own part, will Moldova be able to realise its European aspirations. A comprehensive strategy towards Moldova, Ukraine and Russia within the EU’s Wider Europe Policy would be a critical first step.”
72. In its report of 17 August 2006, “Moldova’s Uncertain Future” (Europe Report no. 175), the ICG observed (extract from the Executive Summary):
“With Romania’s expected entry into the European Union in 2007, the EU will share a border with Moldova, a weak state divided by conflict and plagued by corruption and organised crime. Moldova’s leadership has declared its desire to join the EU, but its commitment to European values is suspect, and efforts to resolve its dispute with the breakaway region of Transdniestria have failed to end a damaging stalemate that has persisted for fifteen years. Young people have little confidence in the country’s future and are leaving at an alarming rate. If Moldova is to become a stable part of the EU’s neighbourhood, there will need to be much greater international engagement, not only in conflict resolution but in spurring domestic reforms to help make the country more attractive to its citizens.
Two recent initiatives by the EU and Ukraine gave rise to hopes that the balance of forces in the separatist dispute had changed significantly. An EU Border Assistance Mission (EUBAM) launched in late 2005 has helped curb smuggling along the Transdniestrian segment of the Moldova-Ukraine frontier, a key source of revenue for the authorities in Tiraspol, the Transdniestrian capital. At the same time, Kiev’s implementation of a landmark customs regime to assist Moldova in regulating Transdniestrian exports has reduced the ability of businesses in the breakaway region to operate without Moldovan oversight, striking a major psychological blow.
But optimism that these measures would ultimately force Transdniestria to make diplomatic concessions appears to have been false. Although EUBAM has had significant success, particularly given its small size and budget, widespread smuggling continues. Nor has the Ukrainian customs regime had a decisive effect on Transdniestrian businesses, which remain capable of profitable legal trade as they were in the past. Moreover, domestic political uncertainty has raised questions about whether Kiev will continue to enforce the new regulations.
Russia has increased its support for Transdniestria, sending economic aid and taking punitive measures against Moldova, including a crippling ban on wine exports, one of its main revenue sources. Moscow refuses to withdraw troops based in Transdniestria since Soviet times whose presence serves to preserve the status quo. With Russian support, the Transdniestrian leader, Igor Smirnov, has little incentive to compromise in his drive toward independence. The internationally-mediated negotiations between the two parties are going nowhere, despite the presence since 2005 of the EU and U.S. as observers. Although some understanding had been reached about the level of autonomy in a settlement, Moldova has hardened its position to match Transdniestria’s intransigence.”
73. In its report entitled “Freedom in the World 2009”, Freedom House commented, inter alia:
“Moldova rejected a Russian-backed federalization plan in November 2003 after it drew public protests. The latest round of formal multilateral talks collapsed in early 2006, and Transnistrian referendum voters in September 2006 overwhelmingly backed a course of independence with the goal of eventually joining Russia, although the legitimacy of the vote was not recognized by Moldova or the international community.
In the absence of active 5+2 negotiations, Voronin pursued bilateral talks with Russia and took a number of steps to bring Moldova’s foreign policy into line with the Kremlin’s. For much of 2008, he urged Russia to accept a proposal whereby Transnistria would receive substantial autonomy within Moldova, a strong and unitary presence in the Moldovan Parliament, and the right to secede if Moldova were to unite with Romania in the future. Russian property rights would be respected, and Russian troops would be replaced by civilian observers. Voronin defended his separate ‘consultations’ with Russia by saying that any settlement would be finalized in the 5+2 format.
The Transnistria issue took on an added degree of urgency in August 2008, after Russia fought a brief conflict with Georgia and recognized the independence of two breakaway regions there. Russian officials said they had no plans to recognize the PMR [‘MRT’], but warned Moldova not to adopt Georgia’s confrontational stance. The Moldovan government in turn rejected any comparison and repeated its commitment to peaceful negotiations. Some experts expressed concerns that Russia could impose a harsh settlement on Moldova in the bilateral talks and then recognize the PMR if the plan were rejected.
Transnistrian president Igor Smirnov’s relations with Voronin remained tense throughout the year, as the Moldovan leader effectively negotiated over Smirnov’s head and expressed clear frustration with the PMR leadership. The two men met in April for the first time since 2001, then again in December. Days after the April meeting, Romanian president Traian Basescu indirectly raised the prospect of a partition in which Ukraine would absorb Transnistria and Romania would annex Moldova proper, prompting Voronin to accuse him of sabotaging the negotiations. Meanwhile, Russian president Dmitri Medvedev met with Voronin and Smirnov separately during the year ...
Political Rights and Civil Liberties
Residents of Transnistria cannot elect their leaders democratically, and they are unable to participate freely in Moldovan elections...
Corruption and organized crime are serious problems in Transnistria ...
The media environment is restrictive ...
Religious freedom is restricted ...
Although several thousand students study Moldovan using the Latin script, this practice is restricted. The Moldovan language and Latin alphabet are associated with support for unity with Moldova, while Russian and the Cyrillic alphabet are associated with separatist goals. Parents who send their children to schools using Latin script, and the schools themselves, have faced routine harassment from the security services.
The authorities severely restrict freedom of assembly and rarely issue required permits for public protests ...
The judiciary is subservient to the executive and generally implements the will of the authorities ...
Authorities discriminate against ethnic Moldovans, who make up about 40 percent of the population. It is believed that ethnic Russians and Ukrainians together comprise a slim majority, and as many as a third of the region’s residents reportedly hold Russian passports.”
74. The International Law Commission (ILC) adopted its Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“Draft Articles”) in August 2001. Articles 6 and 8 of Chapter II of the Draft Articles provide:
“Article 6: Conduct of organs placed at the disposal of a State by another State
The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed.
Article 8: Conduct directed or controlled by a State
The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of that State in carrying out the conduct.”
75. In its advisory opinion “Legal consequences for States of the continued presence of South Africa in Namibia, notwithstanding Security Council resolution 276 (1970)”, the ICJ held, on the obligation under international law to put an end to an illegal situation:
“117. Having reached these conclusions, the Court will now address itself to the legal consequences arising for States from the continued presence of South Africa in Namibia, notwithstanding Security Council resolution 276 (1970). A binding determination made by a competent organ of the United Nations to the effect that a situation is illegal cannot remain without consequence. Once the Court is faced with such a situation, it would be failing in the discharge of its judicial functions if it did not declare that there is an obligation, especially upon Members of the United Nations, to bring that situation to an end. As this Court has held, referring to one of its decisions declaring a situation as contrary to a rule of international law: ‘This decision entails a legal consequence, namely that of putting an end to an illegal situation" (I.C.J. Reports 1951, p. 82).
118. South Africa, being responsible for having created and maintained a situation which the Court has found to have been validly declared illegal, has the obligation to put an end to it. It is therefore under obligation to withdraw its administration from the Territory of Namibia. By maintaining the present illegal situation, and occupying the Territory without title, South Africa incurs international responsibilities arising from a continuing violation of an international obligation. It also remains accountable for any violations of its international obligations, or of the rights of the people of Namibia. The fact that South Africa no longer has any title to administer the Territory does not release it from its obligations and responsibilities under international law towards other States in respect of the exercise of its powers in relation to this Territory. Physical control of a territory, and not sovereignty or legitimacy of title, is the basis of State liability for acts affecting other States.”
76. In the Case Concerning the Application of the Convention on the Prevention and Punishment of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), judgment of 26 February 2007, the ICJ held, on the question of State responsibility:
“391. The first issue raised by this argument is whether it is possible in principle to attribute to a State conduct of persons - or groups of persons - who, while they do not have the legal status of State organs, in fact act under such strict control by the State that they must be treated as its organs for purposes of the necessary attribution leading to the State’s responsibility for an internationally wrongful act. The Court has in fact already addressed this question, and given an answer to it in principle, in its Judgment of 27 June 1986 in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits, Judgment, I.C.J. Reports 1986, pp. 62-64). In paragraph 109 of that Judgment the Court stated that it had to
‘determine . . . whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government’ (p. 62).
Then, examining the facts in the light of the information in its possession, the Court observed that ‘there is no clear evidence of the United States having actually exercised such a degree of control in all fields as to justify treating the contras as acting on its behalf’ (para. 109), and went on to conclude that ‘the evidence available to the Court . . . is insufficient to demonstrate [the contras’] complete dependence on United States aid’, so that the Court was ‘unable to determine that the contra force may be equated for legal purposes with the forces of the United States’ (pp. 62-63, para. 110).
392. The passages quoted show that, according to the Court’s jurisprudence, persons, groups of persons or entities may, for purposes of international responsibility, be equated with State organs even if that status does not follow from internal law, provided that in fact the persons, groups or entities act in ‘complete dependence’ on the State, of which they are ultimately merely the instrument. In such a case, it is appropriate to look beyond legal status alone, in order to grasp the reality of the relationship between the person taking action, and the State to which he is so closely attached as to appear to be nothing more than its agent: any other solution would allow States to escape their international responsibility by choosing to act through persons or entities whose supposed independence would be purely fictitious.
393. However, so to equate persons or entities with State organs when they do not have that status under internal law must be exceptional, for it requires proof of a particularly great degree of State control over them, a relationship which the Court’s Judgment quoted above expressly described as ‘complete dependence’. ...”
The ICJ went on to find that Serbia was not directly responsible for genocide during the 1992-1995 Bosnian war. It held nonetheless that Serbia had violated its positive obligation to prevent genocide, under the Convention on the Prevention and Punishment of the Crime of Genocide, by failing to take all measures within its power to stop the genocide that occurred in Srebrenica in July 1995 and by having failed to transfer Ratko Mladić, indicted for genocide and complicity in genocide, for trial by the International Criminal Tribunal for the former Yugoslavia.
77. Article 26 of the Universal Declaration of Human Rights provides:
“(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.”
78. The above Convention, which was adopted by the United Nations Educational, Scientific and Cultural Organization during its 11th session October-December 1960, provides in Articles 1, 3 and 5:
“Article 1
1. For the purposes of this Convention, the term ‘discrimination’ includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education and in particular:
(a) Of depriving any person or group of persons of access to education of any type or at any level;
(b) Of limiting any person or group of persons to education of an inferior standard;
(c) Subject to the provisions of Article 2 of this Convention, of establishing or maintaining separate educational systems or institutions for persons or groups of persons; or
(d) Of inflicting on any person or group of persons conditions which are in-compatible with the dignity of man.
2. For the purposes of this Convention, the term ‘education’ refers to all types and levels of education, and includes access to education, the standard and quality of education, and the conditions under which it is given.
Article 3
In order to eliminate and prevent discrimination within the meaning of this Convention, the States Parties thereto undertake:
(a) To abrogate any statutory provisions and any administrative instructions and to discontinue any administrative practices which involve discrimination in education;
...
Article 5
1.The States Parties to this Convention agree that:
(a) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms; it shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace; ...”
79. Article 13 of the International Covenant on Economic, Social and Cultural Rights provides:
“1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.
2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:
(a) Primary education shall be compulsory and available free to all;
(b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;
(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;
(d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;
(e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.
3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.
4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph (1) of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.”
80. Article 5 of the above United Nations Convention provides (as relevant):
“In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
...
(e) Economic, social and cultural rights, in particular:
...
(v) The right to education and training;”
81. Articles 28 and 29 of the above United Nations Convention provide:
“Article 28
1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:
(a) Make primary education compulsory and available free to all;
(b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;
(c) Make higher education accessible to all on the basis of capacity by every appropriate means;
(d) Make educational and vocational information and guidance available and accessible to all children;
(e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates.
2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention.
3. States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries.
Article 29
1. States Parties agree that the education of the child shall be directed to:
(a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential;
(b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;
(c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;
(d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin;
(e) The development of respect for the natural environment.
2. No part of the present article or article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.”
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-2
NON_VIOLATED_ARTICLES: P1
NON_VIOLATED_PARAGRAPHS: P1-2