ITEMID: 001-60934
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF Y v. NORWAY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-2;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 9. The applicant was born in 1977 and lives in Spain.
10. On 1 October 1997 the applicant was charged (under Articles 193, first alternative, and Articles 229 and 233, first and second sub-paragraphs of the Penal Code-straffeloven) of having committed on Saturday, 6 May 1995, offences of violent assault, sexual assault and homicide against his cousin Ms T. (aged 17).
11. The Karmsund District Court (herredsrett), sitting with 2 professional judges and 3 lay judges, held a hearing from 20 October to 19 November 1997, during which 84 witnesses and 5 experts were heard. On 27 November 1997 the District Court convicted the applicant of the charges and sentenced him to 14 years’ imprisonment. Moreover, under Article 3-5 of the Damage Compensation Act 1969, the District Court ordered the applicant to pay NOK 100,000 in compensation to Ms T.’s parents for pain and suffering and additional inconvenience.
12. The applicant appealed to the Gulating High Court (lagmannsrett), which held a hearing between 4 May and 18 June 1998, during which it took oral evidence from 115 witnesses, 2 of whom were experts appointed by the High Court. Statements by 10 expert witnesses were submitted. Giving its verdict, the jury answered all the questions put to it in the negative. When the jury’s verdict is that the person is not guilty, but the court finds that he is undoubtedly guilty, the court may unanimously decide that the case shall be retried before other judges. The professional judges withdrew and deliberated for approximately 50 minutes, before they came back to announce that they accepted the jury’s verdict. The High Court thence acquitted the applicant of the charges.
13. On the following day, after hearing the pleas of counsel for the applicant and for the victim’s parents lasting approximately one hour, but without further evidence being submitted by the parties or taken by the court, the High Court judges unanimously upheld the District Court’ decision to award NOK 100,000 in compensation to Ms T.’s parents. On this point the High Court relied on the following considerations:
“It has been established in case-law that in such a serious case as the present one, and where the question of guilt has been decided in favour of the accused, a condition for making an award of compensation for non-pecuniary damages is that it must be clear on the balance of probabilities that the accused has committed the infringements specified in the indictment, see Norsk Retstidende 1996:864.
Considering the evidence adduced in the case as a whole, the High Court finds it clearly probable that [the applicant] has committed the offences against Ms T. with which he was charged and that an award of compensation to her parents should be made under Article 3-5 (2) of the Damage Compensation Act.
With respect to the compensation matter the High Court finds the following circumstances established.
On Friday, 5 May 1995 the applicant went to the cinema in Kopervik with some of his friends. Around midnight he was in the centre of town. The same night Ms T. had attended a Christian event at Avaldsnes. After this event she hitchhiked to the centre of Kopervik, where she arrived around midnight. She talked to some friends who were in the main street of Kopervik and then left the centre at approximately 12.10 a.m. About the same time [the applicant] left the main street and went for a short while to one of his friend’s house. Thereafter he cycled towards his home. He caught up with his cousin, Ms T., and they continued together. [They] lived about 1 km from one another. They took a road called Gamle Sundsveg. This is a short cut to Ms T.’s home, but a detour for [the applicant]. ...
When they approached the habitation in Sund they stopped. [The applicant] stroked Ms T.’s breasts. She rejected him, kicked his bike, yelled at him and continued on her own. [The applicant] feared that, should Ms T. find his conduct completely unacceptable, it would have disastrous consequences for him when his conduct would be known. He thought about earlier incidents of flashing and obscene behaviour and got scared of the consequences. He charged after her and performed the acts described in the indictment. The High Court considers that his acts had their origin in an explosion of emotion, combined with a sexual attraction to Ms T. According to forensic expert statements, it is established that by the time she was on the road she had already suffered lethal injury. It has not been fully ascertained whether she was dead when he dragged her from the road to the bushes in a field. Here he lifted a 23-kg stone and hit her at least twice on the head. There was blood on both sides of the stone. The accused himself stated that he had the evil idea to conceal her face, so she could not tell anyone, by any means, what he had done.
He then left the scene, washed himself clean from the blood and earth in [a lake] nearby and then cycled at random towards Kopervik. After a while he cycled towards his home and encountered a witness. ... She stated that this was at around 1.45 a.m.
A neighbour, who was the owner of the field, found Ms T. the next morning. ... The police were called.
An extensive investigation was carried out and [the applicant] was summoned for questioning at an early stage. He was considered suspect, particularly because the police had some knowledge about his previous sexual acts, of which one incident had led to a formal complaint. At the end of January 1997 [the applicant] gave a new statement to the police and changed his version as to the time of his arrival at home and his choice of roads from the town centre back home. It was inter alia against this background that [the applicant] was apprehended on 8 February 1997. On 10 February 1997 he was placed in custody with a prohibition on correspondence and visits. At the court hearing he accepted his remand in custody. Ten days later [the applicant] delivered to his defence counsel at the time two notes stating that he had killed Ms T. Counsel is thought to have asked the defendant whether he could recall this. He denied it and counsel handed the notes back to [the applicant]. A few days later he confessed and gave detailed information about the course of events and the background. During questioning on 2 March 1997, after having gone through the statements with his counsel, he declared that he was guilty of a crime in accordance with the confession. Approximately one month later the confession was repeated to psychiatric experts. After having been transferred to Bergen regional prison, he began to doubt the accuracy of his confession. ... During a police inquiry on 11 August 1997, his counsel gave notice that [the applicant] would not maintain his previous statement.”
14. The applicant sought to appeal against the High Court order that he pay compensation, according to the rules of the Code of Civil Procedure 1915 (tvistemålsloven). Ms T.’s parents and the applicant, represented by their respective counsel, took part in these proceedings, but not the prosecution.
On 1 February 1999 the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) refused the applicant leave to appeal in so far as it concerned the High Court’s assessment of the evidence, but granted leave in so far he was challenging the High Court’s procedure and interpretation of the law.
15. By a judgment of 24 September 1999 the Supreme Court, by 3 votes to 2, rejected the appeal.
16. The majority, Mr Justice Skogstad, joined by Mrs Justice Gjølstad and Mrs Justice Coward, stated:
“Appeal concerning the procedure
Apart from the fact that neither the wording of the Code of Criminal Procedure nor the preparatory works suggest that an authorisation to pass judgment on civil claims in spite of a defendant’s acquittal should depend on the reasons for the latter, I cannot find any real grounds to support this proposition. Although it is evident that – in cases like the one at hand – it must be a condition for passing judgment on compensation for non-pecuniary damage that it is clear on the balance of probabilities that the act has been committed [handlingen er begått], the evidentiary standard is not as strict as that applying to a criminal conviction. I have problems seeing that in cases where the defendant has been acquitted, because it has not been found proven that the act has been committed [handlingen er begått], should be placed in a somewhat different position than where there are other grounds for acquittal – as for example where the conduct is not punishable, where it has not been established that the defendant acted with the required criminal guilt, where the defendant is not found to be liable under the criminal law, or where there is self-defence or any other ground of exemption from criminal liability. Should it not be permissible to adjudicate civil claims in criminal proceedings in which the defendant has been acquitted because it has not been established that he has committed the act that was the factual basis for the indictment [begått handlingen], the consequence would be that the claim must be brought up in separate civil proceedings. However such a lawsuit is both time consuming and expensive [and] .... the aggrieved party’s possibilities to pursue such claims will depend on his economic situation. I find no attraction in such a solution.
I should also point out that if one were to operate a rule whereby an acquittal on the ground that it has not been established that the defendant has committed the act that was the factual basis for the indictment [har begått den handling han er tiltalt for] is treated differently than acquittals on other grounds, it might give rise to difficulties in instances where the case has been tried by a High Court sitting with a jury, as in the present case. A verdict of conviction requires that at least seven of the ten jurors have answered ‘yes’ to the question of guilt and, regardless of whether the jury has answered ‘yes’ or ‘no’, no grounds are given for the verdict. In most instances one will have more or less well-founded perceptions, but never total certainty, as to why the jury has answered in the negative.
On several occasions the courts have had to deal with the question whether a civil claim can be adjudicated in spite of the defendant having been acquitted in the criminal case. On those occasions, where the question has been submitted to the Supreme Court or the Appeals Selection Committee, it has not been a condition for dealing with the civil claim in connection with the criminal case that the [criminal] court ... has found it established that the defendant has committed the act that was the factual basis for the indictment [har begått den handling tiltalen gjelder]. ...
In my opinion, in the light of existing legal sources, there cannot be any doubt that, under the Code of Criminal Procedure 1981, it is not a condition for adjudicating a civil claim in connection with criminal proceedings that the court in [the latter] proceedings has found it proven that the defendant has committed the act that was the factual basis for the indictment [har begått den handling saken gjelder]. ...
Consequently, no procedural errors were committed when the High Court, in spite of [the applicant’s] acquittal in the criminal proceedings, passed judgment on the civil claim. ...
Appeal concerning the application of the law
The appellant has based his appeal on law on the argument that it would be contrary to the presumption of innocence in Article 6 § 2 of the Convention if the court, after the defendant has been acquitted in the criminal case, passes judgment for compensation for non-pecuniary damage in the same case. In any event, he submits, it must be contrary to the presumption of innocence to give such reasoning on the compensation matter as done by the High Court. ...
[Article 6 § 2] is primarily addressed to judges in criminal proceedings and its main message is that judges shall not prejudge the defendant as having committed the crime of which he is indicted, or that there shall be no prejudgment through statements by public authorities (see Frowein/Peukert: “Europäische Menschenrectskonvention”, “ECHR”, 2. edition (1996) page 280 and following, and Rehof/Trier: Menneskerett – Human Rights (1990), page 164). Both according to legal doctrine and the case-law of the Strasbourg institutions, the provision may also have importance after the criminal case has been terminated (see Harris/O’Boyle/Warbrick: “Law of the ECHR” (1995), pages 246-247 with further references to practice). For instance, in the Sekanina v. Austria judgment, the Court stated that if the defendant has been acquitted by a final judgment, the courts might not, in a subsequent case concerning compensation for unjust prosecution, base its judgment on the fact that the accused is guilty. However, how far these points of view go is somewhat uncertain. While it is the accused and the State who are parties to the compensation proceedings regarding unjust prosecution, such proceedings can be seen as a prolongation of the criminal case. In my view, however, the presumption of innocence can hardly apply to civil proceedings between the accused and the person who has been prejudiced or has suffered damage by the act [which was] the factual basis for a criminal charge in respect of which the defendant has been acquitted [en handling som siktede er frifunnet for]. In any event, it must be evident that Article 6 § 2 of the Convention cannot bar the courts – in a civil case (for example a case for compensation; on dismissal or parental responsibilities) – from establishing facts regarding the course of events in question, even if it should disclose the occurrence of a criminal offence and even if the person against whom the claim is directed has been acquitted of the offence in a preceding criminal case (see, inter alia, Lorenzen/Rehof/Trier: “Den Europæiske Menneskeretskonvention med kommentarer” “The ECHR with comments” (1994), page 199, and Frowein/Peukert, op. cit. page 285). Should the presumption of innocence apply at all to civil proceedings between the aggrieved party and the accused, it must at any rate be a condition for finding a violation of Article 6 § 2 that a decision establishing criminal guilt has been taken. Were the court in a civil case not permitted to base its decision on the fact that the person acquitted of a criminal offence, has in fact committed the act [begått handlingen], the acquittal would deprive the victim, or the person who has suffered damage, of the possibility to obtain a judicial review of claims that he or she might have against the accused. This would, in my view, be contrary to the fundamental right to a fair hearing in Article 6 § 1.
[The applicant] has argued that a distinction must be made between cases where a civil claim is being reviewed together with the criminal matter and cases where the claim is examined in separate civil proceedings. I do not agree that there is any basis for making such a distinction. The system whereby civil claims may be raised in the criminal case is based upon well-founded considerations of procedural economy and ... can also benefit the defendant. In criminal proceedings the accused is, as a main rule, entitled to defence counsel paid for by the State and, bearing in mind also the thoroughness with which evidence is presented in a criminal trial, the accused, in the event of a civil claim being determined together with the criminal matter, enjoys particular protection against being wrongly judged. If the defendant is acquitted in the criminal case but is ordered to pay compensation for non-pecuniary damage, the accused will be left with a feeling of not having been ‘totally acquitted’. But it should not matter to him whether the compensation claim is determined in connection with the criminal proceedings or in ensuing civil proceedings.
...
As mentioned above, the presumption of innocence under Article 6 § 2 of the Convention can, in my view, hardly be applied in a civil case between the person acquitted and the aggrieved party. Bearing in mind the nature of this case, I do not, however, find it necessary to take a definite stance on this question, the High Court did not in my view base its decision in the compensation claim on a finding of criminal guilt, which under any circumstance must be a condition for a violation of Article 6 § 2. ...
The appellant has pleaded that the courts in practice will have difficulties in applying different evidentiary standards to criminal conviction and compensation. Moreover, he has submitted that when, as in this case, it is a requirement for making an award of compensation for non-pecuniary damage that it is clear on the balance of probabilities that the the accused has committed the act [begått handlingen], the evidentiary requirement is so close to that applying to a criminal conviction that this in itself contributes to casting a suspicion of criminal liability. I have difficulties in understanding these arguments. The fact that the evidentiary requirements are different in various relations is nothing special for cases such as the present one. ... [I]t is based on the general view that a qualified probability is required in order for the court to ground its decision on a fact that is strongly incriminating ... The fact that a stricter standard of proof applies in order to protect the interests of the defendant cannot entail a breach of the Convention.”
17. The minority of the court, Mr Justice Flock joined by Mr Chief Justice Smith in the main reasoning and the conclusion, expressed the following opinion:
“I am ... of a different opinion as to the main issue in the case. In my view, the appeal on procedure ... should be upheld. When a court primarily has found that the defendant was not the perpetrator of ‘the act with which the case is concerned’, the court may not, in my opinion, in the same judgment order the defendant to pay compensation for non-pecuniary damage on the ground that he nevertheless has performed the same ‘act’.
Under the 1981 Code of Criminal Procedure – as noted by the first voting Justice – it was authorised to pass judgment on civil claims even though the defendant had been acquitted of the criminal act. ...The former [limitation in this respect] was repealed. However, in my view, the far reaching application of the new rule made by the High Court in this case does not necessarily follow from the statute or from former Supreme Court rulings. Besides, it would be more consistent with the presumption of innocence under Article 6 § 2 of the Convention, now incorporated into Norwegian law, if the court did not both brand the defendant as the perpetrator of the act under civil law and acquit him of criminal liability in the same judgment. Against this background, the best solution would be to interpret the possibility – and the corresponding duty for the courts – under the statute to adjudicate civil claims in the criminal case with the qualification that the most extreme consequences should be avoided.
Below I shall deal with each of the reasons for my position.
When the 1981 Code improved the possibilities of the aggrieved party to have civil claims determined in connection with the criminal proceedings, some instances were mentioned in the preparatory work of claims that could be adjudicated even though the defendant had been acquitted. This was, inter alia, where the purpose, intent or gross negligence required by the Penal Code had not been proved but where it had been shown that the defendant had displayed sufficient negligence to be held liable to pay compensation. However, the preparatory works did not include ... those instances where the defendant had been acquitted because it had not been established that he or she had performed the act as cited in the indictment. This would be the most frequent reason for acquittal in, for example, cases of aggravated sexual assault against minors ... and where compensation for non-pecuniary damage is a recurrent issue.
Special questions arise in this kind of acquittal. A conviction and an order to pay compensation are not only different legal consequences based on different aspects of the case, but also, in the same case and on the same evidence, the court assesses the evidence twice with the possibility of reaching different results. Legally, this would be justified by the fact that the evidentiary requirements for criminal conviction are stricter than those with respect to an order to pay compensation for non-pecuniary damage. However, this situation is so special – and was excluded under the former legislation – that one would expect that the subject be discussed, or at least be explicitly mentioned, in the preparatory works. As this was not the case, it can be deduced that the legislators probably did not have such cases in mind, or at least did not regard them as essential when the rules were amended in 1981.
It is undoubtedly correct that the Supreme Court – and other courts in our country – in certain rulings have noted that an award can be made for pecuniary and non-pecuniary damage even if the defendant has been acquitted in the same case. ... However, ... I can hardly see ... that there is such an established case-law in this area as to prevent certain limitations being made in the interpretation of the law.
As regards the presumption of innocence in Article 6 § 2 of the Convention, it is somewhat uncertain how far this requirement extends in Norwegian law. ...
When taking a decision in the present case, one is faced with the need to strike a balance between, on the one hand, the accused’s interests and, on the other hand, those of the victim and his or her closest relatives. It is important to take into account the fact that the 1981 revision was intended to strengthen the victim’s position. However, I find that an acquittal for having committed the incriminated act – and in particular an act of murder – must clearly appear from the judgment. This is such a prominent consideration that it should in my view be predominant in the interpretation of the law.
...
In following this reasoning, some issues of delimitation will arise as to when the court should abstain from determining civil claims together with an acquittal. The limitation, that is implied in my opinion, on the possibility to adjudicate such claims is inter alia that it must be ascertainable that the acquittal is based on a finding that there is insufficient evidence to show that the accused committed the offence of which he/she was charged. This might be a problem in all cases before the High Court where the question of guilt is decided by a jury, without a reasoned verdict.”
18. Under Norwegian criminal law there are four basic conditions that must be met in order to establish criminal liability:
(1) the accused has committed the proscribed act or omission (actus reus) which is contrary to a provision of the Penal Code or to a special statutory penal provision in force at the time when the act was committed;
(2) there are no exonerating circumstances (e.g. self-defence);
(3) the accused has acted with intent (mens rea), unless otherwise expressly stated in the relevant penal provision; and
(4) the accused was of sound mind at the time of the commission of the offence.
19. As a general rule, the prosecution has to prove these four elements beyond reasonable doubt. Any reasonable doubt shall benefit the accused (in dubio pro reo).
20. Under the Norwegian jury system, when an accused is acquitted the jury is not entitled to disclose whether any of its members held a different opinion, and no records are kept which could disclose that a negative answer as to the applicant’s guilt was not unanimous. The criminal system knows only two conclusions in a criminal case—guilt or acquittal (see Articles 365, 366, 372 and 373 of the Code of Criminal Procedure). There is no third alternative, which was known in some other European countries, where a criminal charge could result in the finding that there was not sufficient evidence for establishing guilt.
21. In so far as is relevant, Article 376A of the Code of Criminal Procedure reads:
“If the jury’s verdict is that the person is not guilty, but the court finds that he is undoubtedly guilty, the court may unanimously decide that the case shall be retried before other judges. At the new trial the High Court shall be constituted as a composite court (meddomsrett)...”
Composed of three new judges and four lay judges, the “composite court” examines the case afresh. In contrast to a trial court sitting with a jury, it gives reasons not only for its decision on civil liability to pay compensation, but also with regard to criminal liability.
22. Article 376 of the same Code provides:
“If the jury’s verdict is that the accused is not guilty and if the court does not take a decision pursuant to Article 376A, it shall render a judgement of acquittal.”
No reasons are given for an acquittal.
Regardless of whether the accused has been acquitted or is convicted, the High Court is to determine any civil claim made in the criminal proceedings, for instance claims for compensation, without the participation of any members of the jury. That is, civil claims are decided exclusively by the three professional judges who have taken part in the criminal case.
The court will determine the claim on the basis of the evidence adduced during the trial but may receive or order the submission of further evidence if necessary. Evidence already produced in the criminal case but relevant to the compensation issue will not be heard again.
Reasons are given for the judges’ decision on compensation.
23. Under the Code of Criminal Procedure 1981, a civil claim may be pursued in connection with a criminal trial, provided that the claim arises from the same set of facts. Consequently, the civil claim of a victim may be decided either in connection with a criminal case or in separate proceedings. Article 3 reads:
“Any legal claim that the aggrieved person or any other injured person has against the person charged may, in accordance with the provisions of chapter 29, be pursued in connection with such cases as are mentioned in Article 1 or Article 2, provided that the said claim arises from the same act that the case is concerned with. On the said conditions the following claims may also be pursued:
The claims specified in the first and second paragraphs are deemed to be civil claims and shall be dealt with in accordance with the provisions of chapter 29...”.
Other provisions concerning civil compensation claims may be found in Chapter 29 of the Code of Criminal Procedure, notably the following:
“§ 427. In a public case the prosecuting authority may on application pursue such civil legal claims as are specified in Article 3. ...
When civil legal claims are pursued against a person other than the person charged, the person concerned assumes the position of a party to the case in so far as this issue is concerned. ...
§ 428. Any person who has any such civil legal claim as is specified in Article 3 may himself pursue it in connection with a public case if a main hearing is held. ...
§ 435. A separate appeal against the decision of civil legal claims shall be brought according to the provisions of the Civil Procedure Act. The same applies to a reopening of the case.”
24. Under the Damage Compensation Act 1969, the purported victim may, regardless of the outcome of the criminal proceedings, claim compensation for pecuniary and non-pecuniary damage.
Article 3-5, as in force at the relevant time, read as follows:
“Anyone who, with intent or gross negligence has
a. Caused personal injury or
b. Committed ... an act of misconduct as mentioned in Article 33, may ... be obliged to pay the victim such a lump sum as the court deems would constitute reasonable compensation (oppreisning) for the pain and suffering and other non-pecuniary damage caused thereby. ...
A person who with intent or gross negligence has caused the death of another person, may be ordered to pay such compensation to the deceased’s ... parents.”
Article 3-3, referred to in the above provision, expressly applies to misconduct mentioned in, amongst others, Article 193 of the Penal Code.
A claim for compensation for nonpecuniary damage submitted by a victim under Article 3-5 of the Act, is subject to his or her showing that the alleged perpetrator, with intent or gross negligence, committed the wrongful act. The test is normally the balance of probabilities and the burden of proof lies with the claimant. This burden may be heavier where liability may have serious consequences for the respondent’s reputation, though it will be less than for criminal liability. The competent court has to determine liability in the light of all the evidence available at the time of the adjudication of the case.
25. The objective constitutive elements of acts which may give rise to both criminal liability and civil liability to pay compensation are not always the same. The subjective constitutive elements in principle differ: normally criminal liability requires intent whereas liability to pay compensation requires gross or simple negligence. There may be exonerating circumstances – such as self-defence, necessity, provocation or ignorance – which exclude criminal liability but which do not exclude liability to pay compensation. A person of unsound mind may be exempted from criminal liability but not necessarily from civil liability to pay compensation (see Norges Offentlige Utredninger (Official Norwegian Report) 2000:33 “Erstatning til ofrene hvor tiltalte frifinnes for straff” (Compensation to Victims in Cases where the Accused has been Acquitted of the Criminal Charge), study by Mr J. T. Johnsen, Professor of Law, Chapter 1, sub-chapter 1.3.2).
The purposes of the criminal law and the law on compensation are not identical. While deterrence and restoration are important considerations in both areas of law, the former places emphasis on retribution and the latter on the spreading of financial loss. The two systems also supplement one another in important respects. While criminal law sanctions are particularly designed to deter the actual and potential offenders from committing offences, those of the law of compensation are particularly designed to meet the aggrieved person’s need for economic redress (ibidem, Chapter 1, sub-chapter 1.2.1).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-70467
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ANDROSOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Article 37-1 - Striking out applications);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Pecuniary and non-pecuniary damage - award
JUDGES: Christos Rozakis
TEXT: 7. The applicant was born in 1948 and lives in Zenzeli village, the Limanskiy District of the Astrakhan Region.
8. In 1986 the applicant took part in the emergency operations at the site of the Chernobyl nuclear plant disaster. As a result the applicant suffered from extensive exposure to radioactive emissions. In 1996 and 1997 the applicant underwent medical examinations which established the link between the applicant’s poor health and his involvement in the Chernobyl events. The applicant was awarded compensation, to be paid monthly.
9. In 1999 the applicant brought proceedings against the Welfare Office of the Limanskiy District of the Astrakhan Region (Отдел социальной защиты населения Лиманского района Астраханской области - “the defendant”) for an increase in the compensation, for backdating the increase and recovering of the unpaid amount. The applicant considered that the amount of compensation had been determined incorrectly.
10. On 3 November 1999 the Limanskiy District Court of the Astrakhan Region established, upholding the applicant’s claim, that the applicant was entitled to a monthly compensation of 5,045.73 roubles (RUR). The court established that the debt accrued as a result of previous underpayment was RUR 108,892.07. It also awarded the applicant RUR 60,000.00 as a penalty payment.
11. By a decision of 14 December 1999 the Astrakhan Regional Court, acting on appeal, upheld the judgment as to the amount of the monthly payment and the principal debt, but reversed the penalty award. The judgment entered into force and enforcement proceedings were instituted. Both parties lodged requests for supervisory review of the courts’ decisions.
12. On 17 March 2000 the Astrakhan Regional Court stayed the enforcement proceedings, pending the consideration of the defendant’s request for supervisory review.
13. The defendant’s request for supervisory review was refused by the Supreme Court of the Russian Federation on 13 April 2000.
14. On 22 May 2000 the Limanskiy District Court of the Astrakhan Region resumed the enforcement proceedings.
15. By a decision of 15 August 2000 the President of the Astrakhan Regional Court refused the applicant’s request for supervisory review.
16. On 15 September 2000 the Limanskiy District Court of the Astrakhan Region granted a request by the Astrakhan Regional Office for Welfare Payments (Астраханский областной центр по начислению и выплате пенсий и пособий) to suspend the enforcement proceedings. The enforcement was stayed until 1 December 2000 to allow the authorities to “decide how to finance the court awards involving the recalculation of compensation to the victims of the Chernobyl catastrophe”.
17. On 17 October 2000 the Supreme Court of the Russian Federation refused the applicant’s request for supervisory review of the suspension order.
18. On an unspecified date, following a request made by the Astrakhan Regional Office for Welfare Payments, the President of the Astrakhan Regional Court brought an extraordinary appeal against the judgments of 3 November 1999 and 14 December 1999.
19. On 27 December 2000 the Presidium of the Astrakhan Regional Court examined the appeal and quashed both the judgment of the Limanskiy District Court of the Astrakhan Region dated 3 November 1999 and the judgment of the Astrakhan Regional Court dated 14 December 1999. The Presidium decided that the subordinate courts had wrongly determined the amount of monthly compensation. In particular, they had based all the calculations on the applicant’s salary as of October 1986. The Presidium held that the calculations should have been based on the applicant’s average earnings over the 12 months prior to the date on which the medical examination had established his disability. The case was remitted to the same District Court for a fresh examination.
20. On 27 February 2001 the Supreme Court of the Russian Federation, in response to the applicant’s complaint, refused to conduct a supervisory review of the decision of 27 December 2000.
21. By a judgment of 23 April 2001 the Limanskiy District Court of the Astrakhan Region, acting as a first instance court, awarded the applicant the monthly payment of RUR 3,336.99 and established that the debt accrued was RUR 114,466.01. No penalty was awarded.
22. On 24 July 2001 the Astrakhan Regional Court acting as an appeal instance reversed the judgment of the Limanskiy District Court of the Astrakhan Region of 23 April 2001. It pointed out that the District Court had applied the calculation mode incorrectly and that the amounts due had to be recalculated. The case was remitted to the same District Court for a new decision.
23. On 23 September 2002 the applicant filed a complaint with the Astrakhan Regional Court concerning the length of proceedings. He complained in particular that no decision had been taken in his case since 24 July 2001.
24. In reply dated 27 September 2002, the applicant was informed that on 22 November 2001, on his request, the proceedings had been stayed pending the Constitutional Court’s decision in a similar case. He was informed that the proceedings had been resumed after the Constitutional Court’s ruling of 19 June 2002, and that a hearing had been fixed for 7 October 2002. He was also informed that the hearings had not been fixed until 2 September 2002 on the applicant’s request due to his counsel’s absence.
25. On 4 November 2002 the Limanskiy District Court of the Astrakhan Region decided that the compensation payable to the applicant by the welfare authorities was RUR 45,640.94. The applicant was also awarded legal costs of RUR 1,300 and non-pecuniary damages of RUR 5,000.
26. The applicant appealed against this decision. He challenged the principal amount, the amount of non-pecuniary damages and the refusal of the penalty.
27. By an appeal decision of 14 January 2003 the Astrakhan Regional Court reversed the first instance judgment and remitted the case for fresh examination by the same court.
28. On 3 March 2003 the Limanskiy District Court of the Astrakhan Region awarded the applicant RUR 235,210.32 of the principal debt, future monthly payments of RUR 4,727.96 and the legal costs of RUR 500.
29. Both parties appealed against this judgment.
30. On 29 April 2003 the Astrakhan Regional Court upheld the first instance judgment.
31. On 5 August 2003 the awarded sums were transferred to the applicant’s bank account.
32. Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit.
33. Under Section 13 of the Law, the enforcement proceedings should be completed within two months of the receipt of the writ of enforcement by the bailiff.
34. Under the Code of Civil Procedure of 1964, which was in force at the material time, judgments became final as follows:
“Court judgments shall become legally binding on the expiration of the time-limit for lodging a cassation appeal if no such appeal has been lodged. If the judgment is not quashed following a cassation appeal, it shall become legally binding when the higher court delivers its decision...”
35. The only further means of recourse was the special supervisory-review procedure that enabled courts to reopen final judgments:
“Final judgments, decisions and rulings of all Russian courts shall be amenable to supervisory review on an application lodged by the officials listed in Article 320 of the Code.”
36. The power of officials to lodge an application (protest) depended on their rank and territorial jurisdiction:
“Applications may be lodged by:
1. The Prosecutor General – against judgments, decisions and rulings of any court;
2. The President of the Supreme Court – against rulings of the Presidium of the Supreme Court and judgments and decisions of the Civil Chamber of the Supreme Court acting as a court of first instance;
3. Deputy Prosecutors General – against judgments, decisions and rulings of any court other than rulings of the Presidium of the Supreme Court;
4. Vice-Presidents of the Supreme Court – against judgments and decisions of the Civil Chamber of the Supreme Court acting as a court of first instance;
5. The Prosecutor General, Deputy Prosecutor General, the President and Vice-Presidents of the Supreme Court – against judgments, decisions and rulings of any court other than rulings of the Presidium of the Supreme Court;
6. The President of the Supreme Court of an autonomous republic, regional court, city court, court of an autonomous region or court of an autonomous district, the Public Prosecutor of an autonomous republic, region, city, autonomous region or an autonomous district – against judgments and decisions of district (city) people’s courts and against decisions of civil chambers of, respectively, the Supreme Court of an autonomous republic, regional court, city court, court of an autonomous region or court of an autonomous district that examined the case on appeal.”
37. The power to lodge such applications was discretionary, that is to say it was solely for the official concerned to decide whether or not a particular case warranted supervisory review.
38. Under Article 322 officials listed in Article 320 who considered that a case deserved closer examination could, in certain circumstances, obtain the case file in order to establish whether good grounds for lodging an application existed.
39. Article 323 of the Code empowered the relevant officials to stay the execution of the judgment, decision or ruling in question until the supervisory review proceedings had been completed.
40. Courts hearing applications for supervisory review had extensive jurisdiction in respect of final judgments:
“The court that examines an application for supervisory review may:
1. Uphold the judgment, decision or ruling and dismiss the application;
2. Quash all or part of the judgment, decision or ruling and order a fresh examination of the case at first or cassation instance;
3. Quash all or part of the judgment, decision or ruling and terminate the proceedings or leave the claim undecided;
4. Uphold any of the previous judgments, decisions or rulings in the case;
5. Quash or vary the judgment of the court of first or cassation instance or of a court that has carried out supervisory review and deliver a new judgment without remitting the case for re-examination if substantive laws have been erroneously construed and applied.”
41. The grounds for setting aside final judgments were as follows:
“...
1. wrongful application or interpretation of substantive laws;
2. significant breach of procedural rules which led to delivery of unlawful judgment, decision or ruling...”
41. There was no time-limit for lodging an application for supervisory review, and, in principle, such applications could be lodged at any time after a judgment had become final.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-107480
LANGUAGEISOCODE: ENG
RESPONDENT: MDA;RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF IVANŢOC AND OTHERS v. MOLDOVA AND RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (ratione personae);Preliminary objection joined to merits and allowed (ratione personae);No violation of Art. 3 (substantive aspect);No violation of Art. 5;No violation of Art. 8;No violation of Art. 13;Violation of Art. 3 (substantive aspect);Violation of Art. 5;Violation of Art. 8;Violation of Art. 13;Pecuniary and non-pecuniary damage - award
JUDGES: Anatoly Kovler;Jean-Paul Costa;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicants, Andrei Ivanţoc, Tudor Popa, Eudochia Ivanţoc and Victor Petrov, are Moldovan nationals who were born in 1961, 1963, 1963 and 1988 respectively. Mr Ivanţoc is also a Romanian national. At the time of lodging their application, the first two applicants were detained in Tiraspol and Hlinaia respectively. Andrei Ivanţoc was released on 2 June 2007 and Tudor Popa was released on 4 June 2007. The third applicant is the wife of the first applicant. She is unemployed and lives in Chişinău. The fourth applicant is the second applicant’s son. He is a student and lives in Chişinău.
5. The facts concerning the background of application no. 48787/99, including the Transdniestrian armed conflict of 1991-1992 and the period up to late 2003, are set out in Ilaşcu, Ivanţoc, Leşco and Petrov-Popa v. Moldova and Russia [GC], no. 48787/99, §§ 28-183, ECHR 2004VII.
6. The first and second applicants were detained until their release, respectively on 2 and 4 June 2007, in the “Moldovian Republic of Transdniestria” (MRT).
7. On 9 December 1993 the first and second applicants were tried and convicted by the “Supreme Court of the Moldavian Republic of Transdniestria” for various crimes and offences such as murder, deliberate destruction of another’s property and the unauthorised use and theft of ammunition or explosive substances. They were sentenced to 15 years’ imprisonment and confiscation of their property.
8. In 1999 the first and second applicants, as well as two other individuals who had been tried and convicted with them in 1993, namely Mr Ilie Ilaşcu and Mr Alexandru Leşco, filed an application with the Court concerning, inter alia, the alleged unlawfulness of their detention and their conditions of detention.
9. In a judgment of 8 July 2004 in application no. 48787/99 the Grand Chamber of the Court found that both Moldova and the Russian Federation’s responsibility was engaged with regard to the acts complained of and held that there had been violations of various Articles of the Convention (see below, paragraph 12).
10. In the first place, the Court found that the Moldovan Government was the only legitimate government of the Republic of Moldova under international law, but that it did not exercise authority over that part of its territory that was under the effective control of the “Moldavian Republic of Transdniestria” (MRT). Nevertheless, in the Court’s opinion, the Moldovan Government were under a positive obligation under Article 1 of the Convention to take the diplomatic, economic, judicial or other measures that were in their power to take and that were in accordance with international law to secure to the applicants the rights guaranteed by the Convention (Ilaşcu, Ivanţoc, Leşco and Petrov-Popa v. Moldova and Russia ([GC], no. 48787/99, ECHR 2004-VII, §§ 330-331).
It further stated that it was not its task to indicate which measures the authorities had to take in order to comply with their obligations most effectively, but that it had to verify that the measures actually taken were appropriate and sufficient in the present case. When faced with a partial or total failure to act, the Court’s task was to determine to what extent a minimum effort was nevertheless possible and whether it should have been made. Determining that question was especially necessary in cases concerning an alleged infringement of absolute rights such as those guaranteed by Articles 2 and 3 of the Convention (ibid. § 334).
The Court noted that until 2001, the Moldovan authorities had taken various measures aimed at obtaining the applicants’ release and that as a result, Mr Ilaşcu was released in May 2001. It considered that even after Mr Ilaşcu’s release in May 2001, it was within the power of the Moldovan Government to take measures to secure to the applicants their rights under the Convention. It further noted that the negotiations for a settlement of the situation in Transdniestria, in which the Russian Federation was acting as a guarantor State, had been on-going since 2001 without any mention of the applicants or without any measure being taken or considered by the Moldovan authorities to secure the applicants their Convention rights, although it was within the power of the Moldovan Government to take such measures (ibid., §§ 350 and 351).
The Court therefore held that Moldova’s responsibility was capable of being engaged under the Convention on account of its failure to discharge its positive obligations with regard to the acts complained of which occurred after May 2001 (ibid., § 352).
11. As to the Russian Federation, the Court found that all of the acts committed by the Russian soldiers with regard to the applicants before the ratification of the Convention by the Russian Federation, including their transfer into the charge of the Transdniestrian separatist regime, in the context of the Russian authorities’ collaboration with that illegal regime, were capable of engaging responsibility for the acts of that regime (ibid., § 385).
Turning to the question whether that responsibility was still engaged at the time of the ratification of the Convention by the Russian Federation, the Court found that the “MRT”, which had been set up in 1991-1992 with the support of the Russian Federation and was vested with organs of power and its own administration, remained “under the effective authority, or at the very least under the decisive influence of the Russian Federation, and in any event, it survives by virtue of the military, economic, financial and political support given to it by the Russian Federation” (ibid., § 392).
It therefore held that there was a continuous and uninterrupted link of responsibility on the part of the Russian Federation for the applicants’ fate, as the Russian Federation’s policy of support for the regime and collaboration with it continued beyond 5 May 1998, the date of entry into force of the Convention in respect of the Russian Federation, and after that date the Russian Federation had made no attempt to put an end to the applicants’ situation brought about by its agents, and did not act to prevent the violations allegedly committed after 5 May 1998. In the light of these findings, it considered it to be of little consequence that since 5 May 1998 the agents of the Russian Federation have not participated directly in the events complained of in that application (ibid., § 393).
The Court held that the applicants came within the “jurisdiction” of the Russian Federation for the purposes of Article 1 of the Convention and its responsibility was engaged with regard to the acts complained of (ibid., § 394).
12. Applying these findings (paragraphs 10 and 11 above) to the alleged substantive violations of the Convention, the Court further found, in respect of the applicants Andrei Ivanţoc and Tudor Popa:
i) that their detention was contrary to Article 5 § 1 (a) of the Convention, that, since the applicants were still detained, this violation was of a continuous nature (§ 463), and that the conduct constituting a violation of this provision was imputable both to the Russian Federation as from 5 May 1998, and to Moldova as from May 2001 (§ 464);
ii) that any continuation of the unlawful and arbitrary detention of the applicants would necessarily entail a serious prolongation of the violation of Article 5 and a breach of the respondent States’ obligation under Article 46 § 1 of the Convention to abide by the Court’s judgment, and indicated that “the respondent States must take every measure to put an end to the arbitrary detention of the applicants still detained and to secure their immediate release” (§ 490);
iii) that the persecution, ill-treatment and restrictions to which Mr Ivanţoc was subjected while in detention constituted “torture” within the meaning of Article 3 of the Convention (§§ 444-447), that the Russian Federation was responsible for the treatment inflicted on Mr Ivanţoc as from 5 May 1998, and that Moldova was responsible for that treatment from May 2001 onwards (§ 449).
iv) that the harsh conditions of detention experienced by Mr Popa could be qualified as inhuman and degrading treatment within the meaning of Article 3 of the Convention (§ 452), that the Russian Federation was responsible for that violation as from 5 May 1998, and that Moldova was responsible for that violation as from May 2001 onwards (§ 454).
13. As to the application of Article 41, the Court ordered the Russian Federation and Moldova to pay to each applicant the sum of 190,000 euros (EUR) for pecuniary and non-pecuniary damages, and awarded the overall sum of EUR 17,036 for costs and expenses.
14. The applicants refer to a number of facts concerning the respondent States’ responsibility under Article 1 of the Convention after 8 July 2004, the date of the Ilaşcu, Ivanţoc, Leşco and Petrov-Popa judgment.
15. The applicants submitted the following information concerning, on the one hand, the relations between Moldova, the “MRT” and the Russian Federation with regard to the applicants and, on the other hand, the alleged support provided to the “MRT” by the Russian Federation.
16. On 8 July 2004 the Moldovan Ministry of Foreign Affairs issued a statement in which it expressed its regret that the Russian Federation was delaying the withdrawal of its troops from Moldova, in violation of the decisions taken at the OSCE Summit in Istanbul in November 1999.
17. On 9 July 2004 the “Ministry of Foreign Affairs of the MRT” issued a statement accusing the European Court of Human Rights of having decided the Ilascu, Ivanţoc, Leşco and Petrov-Popa v. Moldova and Russia case in a superficial and biased manner and confirming that the release of the applicants prior to completion of their term was impossible.
18. The applicants’ situation was not discussed during the visit to Russia of the Moldovan Minister of Foreign Affairs on 13 and 14 July 2004, although the Moldovan Minister met Mr Lavrov, the Russian Minister of Foreign Affairs, and Mr Kozak, Head of the Government administration.
19. On 1 August 2004 Moldova prohibited the import and export of merchandise to and from the “MRT”.
20. The applicants submitted the following information concerning the alleged political support provided by the Russian Federation to the “MRT”:
- on 3 August 2004 the first Deputy Minister of Foreign Affairs of the Russian Federation met the “Head of the Transdniestrian Institution of Foreign Affairs” in Moscow;
- on 1 September 2004 the “MRT” press agency, Olvia Press, published information stating that the acting President of the Duma and eight other leaders of various administrative provinces of the Russian Federation had congratulated the leader of the “MRT” on the occasion of the 14th anniversary of the creation of the “MRT”;
- on 15 December 2004 the new Ambassador of the Russian Federation to Moldova went to Tiraspol, where he met the “President of the MRT”, the “Minister of Foreign Affairs” and “the leadership of the Soviet Supreme”.
- on 8 February 2005 a group from the State Duma met the “Minister of Foreign Affairs of the MRT” in Tiraspol. On that occasion, the Moldovan Ministry of Foreign Affairs expressed its indignation at this visit and the general attitude in various Russian governmental circles towards the Transdniestrian region;
- on 5 March 2005 the Ambassador of the Russian Federation to Moldova went to Tiraspol, where he met the “President of the MRT”.
- on 5 April 2005 the Russian First Deputy Minister of Foreign Affairs received the “leader of the institution for external relations in Transdniestria” in Moscow;
- in April 2005 the “Academy for Security, Defence and Rule of Law Issues”, an association created at the initiative of the Russian Security Council, awarded the “President of the MRT” the Order of Peter the Great for his personal contribution to the development and strengthening of Russia;
- on 31 August 2005 the Transdniestrian news agency “Olvia Press” reported that the Mayor of Moscow city and leaders of various regions of the Russian Federation congratulated the “President of MRT” on the celebration of 15 years since the creation of the “MRT”;
- on 1 September 2005, at a gathering in Tiraspol, the leader of the parliamentary faction of the Liberal Democratic Party of the State Duma of the Russian Federation, Alexei Mitrofanov, on behalf of the deputy President of the Duma, congratulated the people of Transdniestria on the same achievement and declared that the Russian Federation and its economy would be present in the “MRT” forever;
- between 11 and 13 October 2005 a delegation of high officials from the Russian Federation headed by Mr Iurii Zubacov, deputy Secretary of the Security Council of the Russian Federation, visited the “MRT” and met the “President of MRT”;
- on 1 February 2006 the “head of the department of foreign affairs of MRT” was received at the Ministry of Foreign Affairs of the Russian Federation;
- on 5 May 2006 the Minister of Foreign Affairs of the Russian Federation met the “President of Transdniestria”. According to Olvia Press, they discussed how Russian military presence could be maintained in the region;
- on 31 May 2006 the “President of MRT”, Mr Smirnov, declared that a referendum on the future of Transdniestria could take place in September 2006 and that Russian officials were supporting this idea;
- according to Olvia Press, on 31 May 2006 Mr S. Ivanov, Minister of Defence of the Russian Federation, declared that Russian military troops would remain in Transdniestria until the final solution of the Transdniestrian conflict;
- between 21 and 23 June 2006 an official Russian delegation headed by the adviser to the Prime Minister of the Russian Federation visited Chişinău and Tiraspol and discussed issues related to social problems and the implementation of the agreement signed between Russia and the “MRT” on 23 March 2006;
- on 18 July 2006 the Permanent Representation of the Russian Federation to the Permanent Council of the OSCE made a statement in support of the referendum in “MRT”;
- on 17 September 2006 a referendum took place in “MRT”, which resulted in the participation of 76.8% of Transdniestrians with voting rights, out of which 94.2% voted in favour of the independence of “MRT” and its adhesion to the Russian Federation;
- between 11 and 12 October 2006 a representative of the Ministry of Foreign Affairs of the Russian Federation visited Moldova and the “MRT”, where he met the “President of MRT”.
21. The applicants further provided the following information relating to the economic relations between the Russian Federation and the “MRT”:
- on 8 and 9 September 2004 a delegation from the Russian Chamber of Commerce travelled to Tiraspol on a business trip; Russian capital plays an important part in the privatisation of Transdniestrian enterprises and a branch of the Russian Chamber of Commerce and Industry was opened in “MRT”;
- on 18 February 2006, in reply to the “increase in tension in the atmosphere around Transdniestria”, the State Duma adopted a declaration recommending the Russian Government and economic agents to examine the possibility of refusing to import Moldovan alcohol products (except for Transdniestria), to supply oil and gas at world prices (except for Transdniestria) and to introduce a visa regime for Moldovan citizens (except Transdniestria);
- on 4 March 2006, following the new policy adopted by Ukraine requiring that all goods exported from “MRT” first pass through customs control with the Moldovan authorities, the Ministry of Foreign Affairs of the Russian Federation protested against the new export regime instituted by Moldova and Ukraine and called for its review;
- on 4 March 2006 the Duma asked the Prime Minister to inform it of the measures taken by the Government pursuant to the declaration of 18 February 2006. The Prime Minister explained that the Government were examining the possibilities of introducing technical barriers to the import of Moldovan alcohol products (except for Transdniestria). He also mentioned that the Government were planning to request Moldova to pay its historical debt in excess of USD 1,000 million for the supply of gas. Mr Fradcov finally noted that the question of the introduction of visas for Moldovan citizens (except those from Transdniestria) needed to be examined further due to the role of the Russian Federation in the region;
- on 7 March 2006 a group of Russian experts went to Transdniestria to examine the export regime introduced on 3 March 2006. The amount of Russian financial assistance to “MRT” was also discussed during this visit;
- on 23 May 2006 the “President of MRT” and the Russian Deputy Prime Minister A. Jukov signed an agreement allowing the “MRT” to collaborate directly with Russian partners in the healthcare and banking spheres;
- as from 27 March 2006 Russia started prohibiting the import of all alcohol products made in Moldova, despite the periodic requests of the Moldovan authorities to review this measure;
- on 26 April 2006 “MRT” received from a fund set up by the Krasnodar region of the Russian Federation 280 million Russian Rubles by way of financial assistance;
- as from March 2006 the Moldovan Rail Company decided to avoid rail communication passing through Transdniestria, which resulted in delays to trains travelling to the Russian Federation. Consequently, the Russian partner decided to cancel, as from 1 November 2006, one out of three trains travelling from Moldova to Moscow.
22. The Moldovan Government considered that the Convention responsibility of the Russian Federation continued to be engaged having regard to the latter’s support for the Transdniestrian regime and to the fact that they maintained their troops on the territory of Moldova, in breach of international law, of the OSCE Summit Statements in Istanbul (1999) and in Porto (2002) (see also Ilaşcu, Ivanţoc, Leşco and Petrov-Popa cited above, §§ 124, 354 and 387), and of Law no. 173-VI of 22 July 2005 on essential provisions on the particular legal status of the towns on the left bank of Dniestr, which provided for a complete, urgent and transparent withdrawal by the Russian Federation of its weaponry and military personnel in Transdniestria.
23. They further submitted that they had taken all the measures in their power to secure the applicants’ release. They referred to numerous measures taken in order to comply with the Court’s judgment in the case of Ilaşcu, Ivanţoc, Leşco and Petrov-Popa, and stated that these were constantly brought to the attention of the Committee of Ministers of the Council of Europe on the occasion of its meetings for the supervision of the above-mentioned judgment.
24. Among these measures, they referred to the following:
- in a letter of 22 August 2005 addressed to the President of the International Committee of the Red Cross (ICRC), Mr Jakob Kellenberger, the Moldovan Minister of Foreign Affairs asked the ICRC to intercede with the Russian authorities in order to obtain the applicants’ release;
- on 25 August 2005 the Moldovan Minister for Reintegration sent a letter to the OSCE Chief of Mission to Moldova, asking him to step up the OSCE’s efforts to secure the applicants’ release. Around the same time, the minister also sent a letter to the Transdniestrian Representative for the Settlement of the Transdniestrian Conflict, asking him to allow Moldovan medical staff to check the health of the detained applicants;
- on 28 August 2005 the Moldovan authorities sent in vain a letter to “the Minister of Foreign Affairs of the MRT” asking him to release the applicants:
- on 20 September 2005 the Moldovan Ombudsman, Mr Iurii Perevoznic, sent a letter to his Russian counterpart, Mr Vladimir Lukin, asking him to use his authority and power to obtain the applicants’ release. His successor sent a similar letter to the Russian Ombudsman on 22 February 2006;
- in February 2006 the Moldovan Minister for Reintegration, M. Şova, sent a letter to the Russian Ambassador for Special Mission within the Russian Ministry of Foreign Affairs, M. Nesterushkin, and to the Transdniestrian Representative for the Settlement of the Transdniestrian Conflict, M. Litskay, asking them to collaborate in order to secure the applicants’ release;
- on 9 February 2005 the President of the Moldovan Parliament, Mrs Ostapciuc, wrote to her Russian counterpart, Mr Gryzlov, to the same end;
- the Moldovan authorities also regularly raised the issue of the applicants’ release with the Permanent Council of the OSCE;
- in addition, the Moldovan Minister of Foreign Affairs sent a circular letter to all Moldovan diplomatic missions, instructing them to use all possible diplomatic contacts abroad in order to obtain the applicants’ release;
- the Moldovan President, Mr Voronin, raised this issue not only with the Presidents of the Russian Federation and Ukraine, but also with the NATO structures in 2005;
- following the adoption of the Ilaşcu, Ivanţoc, Leşco and Petrov-Popa judgment, there was a change in the practice of the Moldovan courts, in that they started awarding damages for unlawful acts committed by the Transdniestrian administration. For instance, in a judgment delivered on 21 October 2004, upheld by the Moldovan Supreme Court, Orhei County Court awarded an individual non-pecuniary damages on account of his unlawful detention in the Transdniestrian region. The damages were paid by the Moldovan Ministry of Finance.
25. Furthermore, the Moldovan Government referred to developments in the relations between Moldova and the Russian Federation following the Ilaşcu, Ivanţoc, Leşco and Petrov-Popa judgment.
26. They submitted that the negotiations between Moldova on the one hand, and Russia and Transdniestria on the other hand, had reached a deadlock following the refusal of the Moldovan President to sign the Kozak Memorandum (see below paragraph 59 with further references).
27. In addition, after 2004 relations between Russia and Transdniestria became even closer at the political, military and economic levels.
28. The Government also referred in this respect to a study in 2006 by the New York City Bar Association, “Thawing a Frozen Conflict: Legal Aspects of the Separatist Crisis in Moldova” which pointed to Russia’s activities in Transdniestria, “including the intervention of its 14th Army on behalf of the separatists, the ongoing military assistance to the Moldovan Republic of Transdniestria (“MRT”), the economic support for the MRT, and effectively bargaining on behalf of the MRT using energy and other levers of power against Moldova”, and which concludes that “Russia has illegally propped up the viability of the MRT and made reintegration virtually impossible”.
29. The presence of Russian troops on the territory of Moldova, in the Transdniestrian part, amounted to a form of political and military support for the Transdniestrian regime.
Moldovan authorities regularly raised with the Russian Federation the issue of the illegal stationing of Russian military forces on the territory of Moldova. However, the Russian Federation did not make the necessary efforts to ensure a complete withdrawal of their troops. Moreover, Russia refused to sign a statement on stability proposed by Moldova during the OSCE Summit in Sofia in December 2004.
30. In 2005 the Moldovan Parliament made a public statement calling on the Russian Federation to withdraw its troops and material from Moldovan territory, since the purpose of the cease-fire agreement concluded between Moldova and the Russian Federation had been achieved.
31. According to the Moldovan Government, the Russian Federation undertook once more within the framework of the OSCE to withdraw its troops from the Transdniestrian part of Moldova by 31 December 2006, but again failed to fulfil its obligations.
32. The Moldovan Government submitted that the Russian Federation continued to exert economic pressure on Moldova, while reserving preferential treatment for the Transdniestrian region.
For instance, the Russian authorities increased the price of natural gas exported to Moldova, while fixing a low price for the Transdniestrian part. Starting in 2005 the Russian Federation stopped, under false pretences, the importation of meat, wine, fruit and vegetables from Moldova, in breach of WTO regulations and the free-trade agreement between Moldova and the Russian Federation.
Likewise, the Russian Federation provided technical and financial assistance to various projects initiated by the Transdniestrian administration, for instance a project on railroads in June 2005.
33. The Moldovan Government further submitted that the Russian Federation was behind the decision of the Transdniestrian administration to forbid the use of the Latin script in schools in Transdniestria and to prevent farmers from obtaining access to the land they owned situated in the villages behind the cease-fire line.
34. Insofar as Russian political support for Transdniestria was concerned, the Moldovan Government pointed to, inter alia, the statement by the Russian Duma that the Transdniestrian electoral code was in accordance with Russian legislation and European requirements in that field, the statement made in October 2005 by the Russian Ambassador in Moldova during the celebration of the anniversary of the city of Tiraspol proclaiming that “Tiraspol was and continues to be an integral part of Southern Russia and of Russian history”, and the statement on 2 June 2006 by the Russian Minister of Foreign Affairs about the right to self-determination of the former Soviet republics.
35. The Russian Government did not make any comments on the facts.
36. The applicants refer to a number of facts concerning the conditions in which Mr Ivanţoc and Mr Popa were detained since 8 July 2004, the date of the Ilaşcu, Ivanţoc, Leşco and Petrov-Popa judgment, until their release on the expiry of their term of imprisonment in June 2007, and their effects on all applicants’ family life:
37. On 21 July 2005 the “Supreme Soviet of MRT” decreed a general amnesty. Under point 10 letter (в) of this decree, the term of imprisonment of persons convicted of intentional crimes for a period of more than 6 years was reduced by one third. On 10 October 2005 Mr Gribincea sent a letter to the “Ministry of Justice of MRT” requesting it to explain whether the amnesty decree of 21 July 2005 was applicable to the applicants, and if so, when and in what circumstances the applicants would be released.
On 10 April 2006 the “Minister of Justice of MRT” informed Mr Gribincea that he could neither answer Mr Gribincea’s questions nor maintain correspondence with him, as Mr Gribincea had no right to represent persons on the territory of the “MRT”.
38. The applicants’ conditions of detention did not change following the Court’s judgment of 8 July 2004.
39. Both Andrei Ivanţoc and Tudor Popa were detained in solitary confinement. No explanation was ever provided for their detention regime and conditions.
40. Mr Popa was detained until his release to Hlinaia Prison and placed in the wing for prisoners sentenced to death. His cell contained a metal cage of the same size as the cell, i.e. some 8 sq. m. Inside the cell there was a metal bed and a table.
Mr Ivanţoc was detained in Tiraspol Prison no. 2, in a cell of some 16 sq. m.
41. The applicants spent 23 hours a day in their cells, which had no natural light. Access of sunlight was blocked by special blinds, which also prevented them from looking outside.
42. Both applicants were entitled to a daily one-hour walk in a closed courtyard; no other prisoner could be present at the same time. From the courtyard the applicants could only see the sky and four very high walls. The applicants had no access to the gym or other such facilities.
They were allowed to have a shower once a week. In summertime there was no warm water. During the winter of 2004-2005 there was no cold water at all in Tiraspol Prison no. 2, so that Andrei Ivanţoc had only hot water for all his needs.
43. The cells were never heated. Unlike Mr Popa, Mr Ivanţoc was allowed to receive an electric heater from his family. He was also allowed to build a small wall in order to separate the toilet from the rest of his cell.
44. Mr Ivanţoc has liver problems and Mr Popa suffers from tuberculosis. They received neither appropriate treatment for their illnesses nor appropriate meals as prescribed by doctors. They were also prohibited from receiving medicines from their relatives.
The applicants were not permitted to receive visits from the prison doctors. They were examined by doctors from Chişinău at the request of the OSCE mission in Chişinău. Such requests were generally dealt with within a week. In March 2005 the applicants were examined by doctors from the Red Cross and Mr Popa was subsequently examined by a dentist.
45. Andrei Ivanţoc was allowed to have four short-term (two-hour) visits and two long-term (three-day) visits per year. However, his wife was the only person permitted to visit him.
46. Tudor Popa was allowed to have four short-term (two-hour) visits per year. In 2004 and 2005 only his sister Raisa Camenschi visited him. A Romanian-speaking prison guard was present throughout all the visits.
47. For the last four years of his detention Mr Popa had not been allowed any long-term visits. No explanation was provided for this refusal.
48. Short-term visits were generally granted on the same day the request was made. They took place in a special room. The applicants were separated from visitors by a window and discussion took place over the telephone. Applications for long-term visits had to be filed with the prison administration at least one month before the date requested.
49. Mr Ivanţoc was authorised to receive parcels every month. These parcels contained special dietary food which the applicant cooked for himself.
50. Mr Popa was not authorised to receive parcels every month as prescribed by law. For this reason, the special food he needed was brought to him by his sister during the short-term visits. However, he was not allowed to receive raw food such as potatoes, eggs or pasta and was not allowed to cook.
51. Tudor Popa was not allowed to receive newspapers published in the Romanian language. Neither Tudor Popa nor Andrei Ivanţoc were allowed to write to their families in Romanian using the Latin script, although some members of their families could not read the Cyrillic alphabet. Tudor Popa was not allowed to receive newspapers published in the Romanian language.
52. Neither Mr Ivanţoc nor Mr Popa were allowed to have telephone conversations as prescribed by law. They were not allowed to see their lawyers.
53. Tudor Popa had a TV set in his cell, but he had access only to Transdniestrian channels. Andrei Ivanţoc was only allowed a radio set in his cell.
54. All items received by the detainees from their families during their period in detention (TV and radio set, refrigerator, etc) had to remain in prison after their release.
55. Andrei and Eudochia Ivanţoc have no children. The closest member of Eudochia’s family is her husband, who was detained for 13 years until his release in 2007. At the time of lodging the present application, she was allowed to see her husband only once every two months, when she was granted short-term visits. She spent a maximum of three days per year with him. Every time her husband had health problems she was prohibited from visiting. She only learned about his health problems from newspapers.
56. Victor Petrov was constantly refused visits to his father if not accompanied by a person over 18, on the ground that he was a minor and had no identity documents.
57. Between 2004 and his father’s release in June 2007, Victor Petrov saw his father only twice, the last time being in March 2004. During this period, he was never allowed to conduct correspondence with his father in the Latin script, although he does not know the Cyrillic script.
58. Until the release of his father, and for a period lasting three years, he used to live without his mother, who, due to financial difficulties, had had to go abroad for work. During this period, he had to take care of his younger sister by himself.
59. Detailed information with regard to Transdniestria (Russian military withdrawal, political developments, relations between Transdniestria on the one hand, and the Russian Federation and Moldova, on the other hand) during the period since the adoption of the Ilaşcu, Ivanţoc, Leşco and Petrov-Popa judgment is set out in Catan and Others v. Moldova and Russia (dec.), nos. 43370/04, 8252/05 and 18454/06, 15 June 2010, §§ 34-41 and §§ 63-72.
60. The Committee of Ministers (CM) has adopted so far five interim resolutions in the Ilaşcu, Ivanţoc, Leşco and Petrov-Popa case: on 22 April 2005, 13 July 2005, 1st March 2006, 10 May 2006 and 12 July 2007.
61. In the Interim Resolution of 22 April 2005 the CM “urgently invites the Russian authorities to comply fully with the judgment” and “invites the Moldovan authorities to continue their efforts towards securing the release of the two applicants who are still imprisoned”.
62. In the Resolution adopted on 13 July 2005, the CM took note of the information provided by the Moldovan Government as to the measures taken to execute the judgment and “encouraged the Moldovan authorities to continue their efforts towards putting an end to the detention of the applicants and securing their immediate release.”
They further stated that since the last Resolution of 22 April 2005, “the Russian authorities have again called into question the validity of the judgment and have insisted that, by paying the just satisfaction awarded, they consider that they have fully executed the judgment”. They noted that the Russian authorities “have provided no new information regarding any efforts they may have initiated to secure the release of the applicants who are still imprisoned”. The CM further stated that the “excessive prolongation of [the applicants’] unlawful and arbitrary detention fails entirely to satisfy the requirements of the Court’s judgment”. They decided “to resume its examination of this case at each of its meetings until the applicants have been released.”
The Russian Federation did not take part in the preparation of this interim resolution and opposed its adoption. Moreover, the Permanent Representative of the Russian Federation had stated, even before the adoption of this resolution, that his authorities would not participate in its implementation.
63. In a third Resolution on the matter, dated March 2006 the CM encouraged the Moldovan authorities to continue their efforts towards putting an end to the arbitrary detention of the applicants still imprisoned and securing their immediate release; strongly urged the Russian authorities to pursue actively all effective avenues capable of putting an end to the arbitrary detention of the applicants still imprisoned and of securing their immediate release; and insisted that the results required by the Court’s judgment be attained without any further delay.
64. In a fourth Interim Resolution adopted on 10 May 2006 the CM stated:
“Deeply deploring the fact that two applicants, Mr Ivanţoc and Mr Petrov-Popa, are still imprisoned, and stressing that the excessive prolongation of their unlawful and arbitrary detention fails entirely to satisfy the requirements of the Court’s judgment and the obligation under Article 46, paragraph 1, of the Convention;
Noting that the authorities of the Republic of Moldova have regularly informed the Committee of the steps they have taken to secure the applicants’ release;
Regretting profoundly that the authorities of the Russian Federation have not actively pursued all effective avenues to comply with the Court’s judgment, despite the Committee’s successive demands to this effect,
Encourages the authorities of the Republic of Moldova to continue their efforts towards putting an end to the arbitrary detention of the applicants still imprisoned and securing their immediate release;
Declares the Committee’s resolve to ensure, with all means available to the Organisation, the compliance by the Russian Federation with its obligations under this judgment;
Calls upon the authorities of the member states to take such action as they deem appropriate to this end.”
65. Following the adoption the above-mentioned fourth Resolution, the respondent States continued, as in the past, to submit regularly to the Committee of Ministers observations regarding the steps taken to secure the release of the applicants still imprisoned, as appears from an Information document issued by the Committee of Ministers on 29 June 2006 (CM/Inf/DH/(2006)17 rev33).
Moldova submitted that the Russian Federation was in a position to influence the “Transdniestrian authorities”.
As for its part, Moldova had directly or indirectly and regularly raised the issue of release of the applicants pursuant to the Ilaşcu, Ivanţoc, Leşco and Petrov-Popa judgment with various instances such as: the European Union, several European States not members of the European Union, various authorities of the Russian Federation, the Council of Europe Parliamentary Assembly, OSCE, the Council of Europe Commissioner for Human Rights, the United Nations, the Ombudsmen of the Community of the Independent States and of the Baltic States, and last, but not least, with “representatives of the administration of the Transdniestrian region”.
In summary, the Moldovan authorities constantly reiterated their determination to achieve the applicants’ release and constantly kept the Committee of Ministers informed of the numerous steps they had taken with a view to the execution of the judgment, “notwithstanding their limited means”. They concluded that the competent Moldovan authorities, as well as civil society, had explored all available avenues, including all diplomatic means, with a view to the execution of the judgment, including in the broader context of the Transdniestrian conflict.
The Russian Federation submitted that their official position with regard to the execution of the Ilaşcu, Ivanţoc, Leşco and Petrov-Popa judgment expressed in a press statement of the Ministry of Foreign Affairs of 8 July 2004 remained unchanged: having paid the just satisfaction awarded by the Court, the Russian Federation had satisfied its obligations under the Court’s judgment.
66. On 12 July 2007, after the applicants’ release, the CM adopted Interim Resolution 2007 (106), in which it stated the following:
“[...] Noting with relief that the applicants Ivanţoc and Popa have finally regained their freedom, but deeply regretting that, despite the injunction of the Court, they were only released on 2 and 4 June 2007 respectively;
Noting that the authorities of the Republic of Moldova have regularly informed the Committee of the efforts they have made to secure the applicants’ release;
Recalling the various interim resolutions adopted by the Committee of Ministers and most particularly the call made upon the authorities of the member states of the Council of Europe to take such action as they deem appropriate to ensure the compliance by the Russian Federation with its obligations under this judgment; noting the various steps taken by the states following this call; also noting, in this context, the support of the European Union and of numerous other states with a view to achieving the execution of this judgment;
Renewing its profound regret that despite these steps, the authorities of the Russian Federation have not actively pursued all effective avenues to comply with the Court’s judgment;
Reaffirming most firmly that the obligation to abide by the judgments of the Court is unconditional and is a requirement for membership of the Council of Europe;
Recalling that the Court stated that “any continuation of the unlawful and arbitrary detention of the [...] applicants would necessarily entail [...] a breach of the respondent states’ obligation under Article 46 § 1 of the Convention to abide by the Court’s judgment”;
Deeply deploring the prolongation of the applicants’ unlawful and arbitrary detention after the judgment of the Court and underlining, in the light of this situation, the obligation incumbent on respondent states under Article 46, paragraph 1, of the Convention to erase, as far as possible, the consequences of the violations at issue in this case;
Noting, in this respect, that Mr Ivanţoc and Mr Popa have lodged a new application with the Court, against Moldova and the Russian Federation (No. 23687/05), on the ground of the prolongation of their arbitrary detention beyond 8 July 2004;
DECIDES to suspend its examination of this case and to resume it after the final determination of the new application by the European Court of Human Rights.”
67. On 12 December 2002 the CPT published the report following this visit, which stated, inter alia:
“55. Three members of the Ilaşcu group had been held for more than 8 years under conditions of solitary confinement (though one of them - Tudor Petrov-Popa - had recently been offered, but had refused, the presence of other prisoners in his cell). As regards at least one of the prisoners, there were clear indications that the regime to which he was subject was having harmful psychological consequences. Certain other prisoners interviewed by the delegation had also been held under conditions of solitary confinement for prolonged periods.
The CPT pays particular attention to prisoners held, for whatever reasons, under conditions akin to solitary confinement. The principle of proportionality requires that a balance be struck between the requirements of the case and the application of a solitary-confinement type regime, which is a measure that can have very harmful consequences for the person concerned. Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment; in any event, all forms of solitary confinement should be as short as possible. To hold persons under conditions of solitary confinement for years on end is scarcely justifiable under any circumstances.
56. At the end of the visit, the delegation requested that two measures be taken to attenuate the severity of the regime applied to the three members of the Ilaşcu group referred to above: i) allow them access to newspapers of their own choice; ii) ensure that their rights to visits from family members and lawyers are fully respected in practice. The CPT wishes to be informed of the action taken upon the delegation’s request.
Beyond this, the CPT calls upon the authorities to end the solitary confinement regime applied to Ilie Ilaşcu, Andrei Ivanţoc and Tudor Petrov-Popa. Whatever justification there might have been in the past for the application of that regime to these prisoners, to persist with such a regime for close to a decade is indefensible.”
VIOLATED_ARTICLES: 13
3
5
8
NON_VIOLATED_ARTICLES: 13
3
5
8