CASE OF ILAŞCU AND OTHERS v. MOLDOVA AND RUSSIA

1. The admissibility proceedings ............. 2
2. The proceedings on the merits ............. 3
( a) Written observations of the parties .............. 3
( b) The witness hearings ....................... 4
( c) The documentary evidence ................... 5
The facts ................................................. 6
I. The applicants ................................ 6
II. Establishment of the facts ..................... 6
III. General background to the case ............... 8
A. The dissolution of the USSR and the Moldovan-Transdniestrian conflict over the break - away of Transdniestria 8
1. The dissolution of the USSR, the break-away of Transdniestria and Moldovan independence 8
2. The armed conflict (1991 - 92) .............. 11
3. Events after the armed conflict ............. 2 2
B. The presence of the army of the Russian Federation and its personnel in Transdniestria after the agreement of 21 July 1992 2 6
1. ROG troops and equipment in Transdniestria 2 6
( a) Before ratification of the Convention by the Russian Federation 2 6
( b) After ratification of the Convention by the Russian Federation 3 0
2. Relations between the ROG and the “MRT”. 3 2
C. Economic, political and other relations between the Russian Federation and Transdniestria 33
1. Before ratification of the Convention by the Russian Federation, on 5 May 1998 3 3
2. After ratification of the Convention by the Russian Federation 3 5
D. Moldovan-Transdniestrian relations .......... 3 7
1. Before ratification of the Convention by Moldova, on 12 September 1997 37
2. After ratification of the Convention by Moldova 38
IV. The particular circumstances of the case ........ 4 1
A. The applicants'arrest, pre-trial detention and conviction 41
1. The applicants'arrest ..................... 4 1
2. Detention of the first three applicants on the premises of the 14th Army 43
3. Detention in the remand centre of Tiraspol police headquarters and transfer to prison during the trial 45
4. The applicants'trial and conviction ......... 4 6
B. Events subsequent to the applicants'conviction; Mr Ilaşcu's release 4 7
C. The applicants'detention after conviction ...... 49
1. The conditions of detention ................ 5 0
2. Ill-treatment ............................. 5 4
D. Steps taken up to May 2001 to secure the applicants'release 5 5
E. Mr Ilaşcu's release on 5 May 2001 ........... 5 6
F. Steps taken after May 2001 to secure the other applicants'release 5 7
G. International reactions to the applicants'conviction and detention 58
V. International law, domestic law and other relevant agreements 59
The law ................................................... 69
I. Whether the applicants come within the jurisdiction of the Republic of moldova 69
A. Arguments submitted to the Court ............ 69
1. The Moldovan Government ............... 69
2. The Government of the Russian Federation. 7 1
3. The applicants ........................... 7 1
4. The Romanian Government, third-party intervener 7 2
B. The Court's assessment .................... 7 2
1. General principles ........................ 7 2
( a) The concept of “ jurisdiction ” ................... 7 2
( b) State responsibility for a wrongful act ............ 7 5
2. Application of the above principles ......... 7 5
3. The concept of positive obligations ......... 7 7
4. Whether Moldova discharged its positive obligations 78
II. Whether the applicants come within the jurisdiction of the Russian Federation 8 2
A. Arguments submitted to the Court ............ 8 2
1. The Government of the Russian Federation. 8 2
2. The Moldovan Government ............... 8 5
3. The applicants ........................... 8 6
4. The Romanian Government, third-party intervener 87
B. The Court's assessment .................... 88
1. General principles ........................ 88
2. Application of the above principles ......... 88
( a) Before ratification of the Convention by the Russian Federation 88
( b) After ratification of the Convention by the Russian Federation 9 0
III. The Court's jurisdiction ratione temporis ........... 9 2
A. The complaint under Article 6 of the Convention 9 3
B. The complaints under Articles 3, 5 and 8 of the Convention 9 3
C. The complaint under Article 1 of Protocol No. 1 9 3
D. Mr Ilaşcu's complaint under Article 2 of the Convention 9 3
IV. Alleged violation of Article 2 of the Convention ..... 9 4
A. Arguments submitted to the Court ............ 9 4
B. The Court's assessment .................... 9 5
V. Alleged violation of Article 3 of the Convention ...... 9 6
A. Arguments submitted to the Court ............ 9 6
B. The Court's assessment .................... 9 6
1. General principles ........................ 9 6
2. Application of the above principles in the present case 99
( a) Mr Ilaşcu ................................ 99
( b) The other three applicants: conditions of detention and treatment during detention 10 1
( i ) Mr Ivanţoc ........................... 10 1
( ii ) Mr Leşco and Mr Petrov-Popa ............ 10 2
VI. Alleged violation of Article 5 of the convention ... 10 3
VII. Alleged violation of Article 8 of the convention ... 10 6
VIII. Alleged violation of article 1 of protocol No. 1 .... 1 07
IX. Alleged failure to observe Article 34 of the convention 1 07
X. Application of Article 41 of the convention ......... 1 10
A. Damage ................................ 11 0
B. Costs and expenses ..................... 11 3
C. Default interest .......................... 11 3
Operative provisions ........................................ 11 4
Partly dissenting opinion of Judge Casadevall joined byJudges Ress, Tulkens, Bîrsan and Fura-sandström ............... 1 18
Partly dissenting opinion of Judge Ress ........................ 12 3
Partly dissenting opinion of Judge Sir Nicolas bratza joined by Judges Rozakis, Hedigan, Thomassen and Panţîru 1 27
Partly dissenting opinion of Judge Loucaides .................... 1 39
Dissenting opinion of Judge Kovler ............................ 14 2
In the case of Ilaşcu and Others v. Moldova and Russia,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Mr L. Wildhaber, President, Mr C.L. Rozakis, Mr J.-P. Costa, Mr G. Ress, Sir Nicolas Bratza, Mr L. Loucaides, Mr I. Cabral Barreto, Mrs F. Tulkens, Mr C. Bîrsan, Mr J. Casadevall, Mr B. Zupančič, Mr J. Hedigan, Mrs W. Thomassen, Mr T. Panţîru, Mr E. Levits, Mr A. Kovler, Mrs E. Fura-Sandström, judges, and Mr P.J. Mahoney, Registrar,
Having deliberated in private on 23 January, 26 February and 11 September 2002, 8 October 2003 and 7 May 2004,
Delivers the following judgment, which was adopted on the last- mentioned date:
1. The case originated in an application (no. 48787/99 ) against the Republic of Moldova and the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Moldovan nationals, Mr Ilie Ilaşcu, Mr Alexandru Leşco, Mr Andrei Ivanţoc and Mr Tudor Petrov-Popa (“the applicants”), on 5 April 1999.
2. The application mainly concerns acts committed by the authorities of the “ Moldavian Republic of Transdniestria” ( the “ MRT ”), a region of Moldova which proclaimed its independence in 1991 but is not recognised by the international community.
3. The applicants submitted that they had been convicted by a Transdniestrian court which was not competent for the purposes of Article 6 of the Convention, that they had not had a fair trial, contrary to the same provision, and that following their trial they had been deprived of their possessions in breach of Article 1 of Protocol No. 1. They further contended that their detention in Transdniestria was not lawful, in breach of Article 5, and that their conditions of detention contravened Articles 3 and 8 of the Convention. In addition, Mr Ilaşcu alleged a violation of Article 2 of the Convention on account of the fact that he had been sentenced to death. The applicants argued that the Moldovan authorities were responsible under the Convention for the alleged infringements of the rights secured to them thereunder, since they had not taken any appropriate steps to put an end to them. They further asserted that the Russian Federation shared responsibility since the territory of Transdniestria was and is under de facto Russian control on account of the Russian troops and military equipment stationed there and the support allegedly given to the separatist regime by the Russian Federation.
Lastly, the applicants alleged that Moldova and the Russian Federation had obstructed the exercise of their right of individual application to the Court, thus breaching Article 34.
1. The admissibility proceedings
4. The application was allocated to the former First Section of the Court (Rule 52 § 1 of the Rules of Court ). The First Section gave notice of the application to the respondent Governments on 4 July 2000. Written observations on its admissibility were filed on 24 October 2000 by the Moldovan Government, on 14 November 2000 by the Russian Government, and on 2 January 2001 by the applicants.
5. On 20 March 2001 the Chamber of the First Section relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).
6. The composition of the Grand Chamber was determined in accordance with Article 27 §§ 2 and 3 of the Convention and Rule 24. At the final deliberations, Mr I. Cabral Barreto and Mr B. Zupančič, substitute judges, replaced Mr L. Ferrari Bravo and Mr J. Makarczyk, who were unable to take part in the further consideration of the case (Rule 24 § 3).
7. By a decision of 4 July 2001, the Grand Chamber declared the application admissible, after a hearing on the admissibility and merits (Rule 54 § 4) held on 6 June 2001. At the hearing the Moldovan Government declared that they wished to withdraw their memorial of 24 October 2000, or at least that part of it which related to the responsibility of the Russian Federation.
In its decision on admissibility, the Court held that the questions whether the responsibility and jurisdiction of Moldova and the Russian Federation might be engaged under the Convention, and whether the Court had jurisdiction ratione temporis to examine the applicants'complaints, were closely linked to the merits of the case, to which it accordingly joined them.
2. The proceedings on the merits
(a) Written observations of the parties
8. After the application had been declared admissible, both the applicants and the Moldovan and Russian Governments filed observations on the merits of the case: the Moldovan Government on 12 November 2001 and 28 January 2002, the Russian Government on 8 December 2001, and the applicants on 27 September and 2, 4, 12 and 16 November 2001.
Observations were also submitted by the Romanian Government, whom the President had invited to intervene in the proceedings in the interests of the proper administration of justice (Article 36 of the Convention and Rule 61 §§ 2 and 3). The parties replied (Rule 61 § 5). A request to intervene was also submitted by Mrs Ludmila Gusar, a civil party in the proceedings which led to the applicants'conviction by the “Supreme Court of the MRT ”. The President of the Grand Chamber refused her request.
9. After the witness hearings (see paragraphs 1 2 - 1 5 below), the parties were invited by the President to file their final observations by 1 September 2003 at the latest. The President having refused a request by the Russian Government for an extension of the time allowed, the parties'final written submissions were received by the Court on that date.
10. On 12 January 2004 the President of the Grand Chamber decided to invite the respondent Governments under Rule 39 to take all necessary steps to ensure that Mr Ivanţoc, who had been on hunger strike since 28 December 2003, was detained in conditions which were consistent with respect for his rights under the Convention. The parties were invited, in accordance with Rule 24 § 2 (a), to provide information about the implementation of the interim measures requested. Mr Ivanţoc's representative, Mr V. Gribincea, and the Moldovan Government provided the Court with the information requested in letters dated 24 and 26 January 2004 respectively.
11. On 15 January 2004 the President decided to urge Mr Ivanţoc under Rule 39 to call off his hunger strike. On 24 January 2004 Mr Ivanţoc's representative informed the Court that his client had ended his hunger strike on 15 January 2004.
12. In order to clarify certain disputed points and, in particular, the question whether Moldova and/or the Russian Federation were responsible for the alleged violations, the Court carried out an on - the - spot investigation, in accordance with Article 38 § 1 (a) of the Convention and Rule 42 § 2 (in the version then in force). The Court's enquiries were directed towards ascertaining the relevant facts in order to be able to determine whether Moldova and the Russian Federation had jurisdiction, particularly over the situation in Transdniestria, relations between Transdniestria, Moldova and the Russian Federation, and the applicants'conditions of detention.
The Court appointed four delegates, Mr G. Ress, Sir Nicolas Bratza, Mr J. Casadevall and Mr E. Levits, who heard witness evidence in Chişinău and Tiraspol from 10 to 15 March 2003. In Chişinău the witness evidence was taken at the headquarters of the OSCE mission in Moldova, which greatly assisted in the organisation of the hearings. In Tiraspol the Court's delegates took evidence from the applicants and other witnesses resident in Transdniestria at Tiraspol Prison no. 3, and from the witnesses belonging to the armed forces of the Russian Federation at the headquarters of the Russian Operational Group in the Transdniestrian region of Moldova (“the ROG”).
13. In all, the delegates took evidence from forty-three witnesses called by the parties and the Court. The head of the delegation allowed an application by three of the witnesses to remain anonymous, and they were accordingly designated by the letters X, Y and Z.
14. Seven other witnesses summoned to give evidence to the delegates did not appear. After the end of the hearings, at the delegates'request, the parties submitted written explanations of the reasons for these witnesses'failure to appear and the steps taken to transmit the Court's summonses to them.
The following witnesses did not appear: Olga Căpăţina, who was admitted to hospital just before the hearings after being assaulted; Vladimir Gorbov and Mikhaïl Bergman, whom the respondent Governments said they were unable to contact; Petru Godiac, whose absence was not explained; Valeriu Păsat, who was not present in Moldovan territory; and lastly Valeriu Muravschi and Petru Tăbuică, who did not give reasons for their absence.
The Court deplores the fact that such witnesses as Commandant Bergman failed to appear and finds it hard to believe, in view of his high profile, that it was impossible to contact him in order to summon him to give evidence to its delegates. It reserves the right to draw the necessary inferences in the absence of statements by these witnesses.
15. A list of the witnesses who appeared before the delegates and a summary of their statements are to be found in the Annex to the present judgment. A verbatim record of the witnesses'statements to the delegates was also produced by the Registry and included in the case file.
16. In addition to the observations of the parties and the witnesses'statements, the Court took account of the numerous documents submitted by the parties and the Transdniestrian authorities throughout the proceedings: letters from Mr Ilie Ilaşcu; statements and letters from Mr Andrei Ivanţoc; documents from the Moldovan authorities concerning the investigations into the applicants'arrest and detention; written statements by witnesses, including Olga Căpăţina and Petru Godiac; documents concerning the applicants'trial in the “Supreme Court of the MRT ” and the “pardon” granted to Mr Ilaşcu; documents and statements about Transdniestria and the present application from various administrative authorities in Moldova and the Russian Federation; press cuttings about statements made by politicians and other officials of the Russian Federation; official documents concerning the military presence of the Russian Federation in Transdniestria and resolution of the Transdniestrian conflict, including treaties and agreements between Moldova and Transdniestria and between the Russian Federation and Transdniestria, and video cassettes about the fighting in 1992 and the situation in Transdniestria.
17. The Court also consulted certain documents filed by the “Ministry of Justice of the MRT ” through the OSCE mission in Chişinău, particularly extracts from the applicants'medical files and the registers recording the visits and parcels they had received in their places of detention. The respondent Governments also filed documents from the commission responsible for supervising implementation of the agreement of 21 July 1992 (“the Joint Control Commission”).
18. Lastly, the Court had access to a number of public documents about Transdniestria and the situation of the applicants from international organisations and bodies such as the OSCE, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT ), the Parliamentary Assembly of the Council of Europe, the Council of Europe's Commissioner for Human Rights and the Governing Council of the Inter-Parliamentary Union.
19. The applicants, who were Moldovan nationals when the application was lodged, were born in 1952, 1955, 1961 and 1963 respectively. At the time when they lodged their application, they were detained in the Transdniestrian part of Moldova.
20. Although detained, Mr Ilaşcu was twice elected to the Moldovan parliament, from 1994 to 2000. As a member of parliament, he was appointed to form part of the Moldovan delegation to the Parliamentary Assembly of the Council of Europe. On 4 October 2000 Mr Ilaşcu acquired Romanian nationality. In December 2000 he was elected to the Senate of the Romanian parliament and appointed as a member of the Romanian delegation to the Parliamentary Assembly of the Council of Europe.
21. Mr Leşco and Mr Ivanţoc acquired Romanian nationality in 2001.
22. Mr Ilaşcu was released on 5 May 2001; since then he has lived in Bucharest ( Romania ). The second and third applicants'homes are in Chişinău ( Moldova ), whereas the fourth applicant lives in Tiraspol ( Transdniestria, Moldova ). At present all three of them are detained in Tiraspol.
23. In view of the fact that, in the applicants'submission, it was impossible for them to apply to the Court directly, the application was lodged by their wives, Mrs Nina Ilaşcu, Mrs Tatiana Leşco and Mrs Eudochia Ivanţoc, and by the fourth applicant's sister, Mrs Raisa Petrov-Popa.
24. The second applicant was represented before the Court by Mr A. Tănase, of the Chişinău Bar. The other applicants were represented by Mr C. Dinu, of the Bucharest Bar, until his death in December 2002. Since January 2003 they have been represented by Mr V. Gribincea, of the Chişinău Bar.
25. In order to establish the facts, the Court based itself on documentary evidence, the observations of the parties, and the statements of the witnesses who gave evidence on the spot, in Chişinău and Tiraspol.
26. In assessing the evidence for the purpose of establishing the facts, the Court considers that the following elements are relevant.
(i) In assessing both written and oral evidence, the Court has hitherto generally applied “beyond a reasonable doubt” as the standard of proof required. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact; in addition, the conduct of the parties in relation to the Court's efforts to obtain evidence may constitute an element to be taken into account (see, mutatis mutandis, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161, and Salman v. Turkey [GC], no. 2 1986/93, § 100, ECHR 2000- VII).
( ii ) As regards the statements taken down by the delegates, the Court is aware of the difficulties that may arise in assessing such depositions obtained through interpreters: it has therefore paid particular attention to the meaning and weight to be given to the witnesses'statements to the delegates. The Court is likewise aware that a large number of relevant facts concern events which took place more than ten years ago in an obscure and particularly complex context, which makes some degree of imprecision about dates and other details inevitable. It does not consider that that in itself can cast doubt on the credibility of the witness evidence.
( iii ) In a case where there are contradictory and opposing accounts of the facts, the Court is inevitably confronted with difficulties which any court of first instance is bound to meet when seeking to establish the facts, regard being had, for example, to the fact that it does not have direct and detailed knowledge of the conditions obtaining in the region. Moreover, the Court has no powers to compel witnesses to appear. In the present case, out of fifty-one witnesses called, seven did not appear before the delegates. Consequently, the Court found itself having to deal with the difficult task of establishing the facts in the absence of potentially important depositions.
27. With the assistance of the parties, the Court conducted an on-the-spot investigation, in the course of which it took evidence from the following forty-three witnesses:
(a) on the particular circumstances of the applicants'arrest, conviction and detention: the applicants; Mrs Tatiana Leşco and Mrs Eudochia Ivanţoc, the wives of the second and third applicants; Mrs Raisa Petrov ‑ Popa, the sister of the fourth applicant; Mr Ştefan Urîtu, detained in 1992 with the applicants; Mr Constantin Ţîbîrnă, a doctor who examined the applicants in 1995- 98 while they were detained in Tiraspol and Hlinaia; Mr Nicolae Leşanu, a doctor who examined the applicants in 1995- 97 while they were detained in Tiraspol and Hlinaia; Mr Vladimir Golovachev, the governor of Tiraspol Prison no. 2; Mr Stepan Tcherbebchi, the governor of Hlinaia Prison from 1992 to 2001; Mr Sergey Kotovoy, the governor of Hlinaia Prison; Mr Yefim Samsonov, “Director of the Prison Medical Service of the MRT ”; and Mr Vasiliy Semenchuk, a doctor at Hlinaia Prison since 1995;
(b) on the measures taken by Moldova to secure the applicants'release and on relations between Moldova, the Russian Federation and Transdniestria, various Moldovan officials and politicians : Mr Dumitru Postovan, Attorney-General of Moldova from 1990 until July 1998; Mr Valeriu Catană, Attorney-General of Moldova from 31 July 1998 to 29 July 1999; Mr Vasile Rusu, Attorney-General of Moldova since 18 May 2001; Mr Vasile Sturza, Deputy Attorney-General of Moldova from 1990 to 1994 and Minister of Justice from 1994 to 1998; Z, a former Moldovan government minister; Mr Victor Vieru, Deputy Minister of Justice since 2001; X, a former Moldovan senior official; Mr Mircea Snegur, President of Moldova from 1990 to 1996; Mr Alexandru Moşanu, President of the Moldovan parliament from 1990 to 1992; Y, a former Moldovan diplomat; Mr Andrei Sangheli, Prime Minister of Moldova from 1992 to 1997; Mr Anatol Plugaru, Moldova's Minister of Security in 1991- 92; Mr Nicolai Petrică, general in the Moldovan army from 1992 to 1993; Mr Andrei Stratan, former Director of Customs; Mr Vladimir Molojen, Director of the Information Technology Department; Mr Ion Costaş, Minister of Defence in 1991 - 92; Mr Valentin Sereda, Director of the Moldovan Prison Service; Mr Victor Berlinschi, member of the Moldovan parliament from 1990 to 1994; Mr Constantin Obroc, Deputy Prime Minister in 1991 - 92 and adviser to the President of Moldova from 1993 to 1996; Mr Mikhail Sidorov, member of the Moldovan parliament; and Mr Pavel Creangă, Moldovan Minister of Defence from 1992 to 1997.
(c) on the presence of the ROG and the Russian Federation's peacekeeping troops in the Transdniestrian region of Moldova, soldiers from those units: General Boris Sergeyev, commander of the ROG; Colonel Alexander Verguz, officer commanding the ROG; Lieutenant-Colonel Vitalius Radzaevichus, former member of the command structure of the ROG; Colonel Anatoliy Zverev, commander of the Russian Federation's peacekeeping troops in the Transdniestrian region of Moldova; Lieutenant-Colonel Boris Levitskiy, president of the military tribunal attached to the ROG; Lieutenant-Colonel Valeriy Shamayev, military prosecutor attached to the ROG; and Mr Vasiliy Timoshenko, former military prosecutor attached to the 14 th Army and the ROG.
III. GENERAL BACKGROUND TO THE CASE
A. The dissolution of the USSR and the Moldovan-Transdniestrian conflict over the break-away of Transdniestria
1. The dissolution of the USSR, the break-away of Transdniestria and Moldovan independence
28. The Moldavian Soviet Socialist Republic, which was set up by a decision of the Supreme Soviet of the USSR on 2 August 1940, was formed from a part of Bessarabia taken from Romania on 28 June 1940 following the Molotov-Ribbentrop Pact between the USSR and Germany, where the majority of the population were Romanian speakers, and a strip of land on the left bank of the Dniester in Ukraine (USSR), Transdniestria, which was transferred to it in 1940, and is inhabited by a population whose linguistic composition in 1989, according to publicly available information, was 40% Moldavian, 28% Ukrainian, 24% Russian and 8% others. Russian became the new Soviet republic's official language. In public life, the Soviet authorities imposed the use of Cyrillic script for written Romanian, which thus became “Moldavian” and took second place after Russian [1].
29. In August and September 1989 the Moldavian Supreme Soviet enacted two laws introducing the Latin alphabet for written Romanian (Moldavian) and making that language the country's first official language, in place of Russian.
On 27 April 1990 the Supreme Soviet adopted a new tricolour flag (red, yellow and blue) with the Moldavian heraldic device and a national anthem which, at that time, was the same as Romania's. In June 1990, against a background of autonomist and independence movements within the Soviet Union, the Moldavian Soviet Socialist Republic took as its new name the Moldovan Soviet Socialist Republic. It proclaimed its sovereignty on 23 June 1990 (OSCE information document of 10 June 1994 – see note to paragraph 28 above).
On 23 May 1991 the Moldovan Soviet Socialist Republic changed its name to the Republic of Moldova.
30. On 2 September 1990 the “ Moldavian Republic of Transdniestria” ( the “ MRT ”) was proclaimed. On 25 August 1991 the “Supreme Council of the MRT ” adopted the declaration of independence of the “ MRT ”.
To date, the “ MRT ” has not been recognised by the international community.
31. On 27 August 1991 the Moldovan parliament adopted the Declaration of Independence of the Republic of Moldova, whose territory included Transdniestria. At that time, the Republic of Moldova did not have its own army and the first attempts to create one took place a few months later. The Moldovan parliament asked the Government of the USSR “to begin negotiations with the Moldovan Government in order to put an end to the illegal occupation of the Republic of Moldova and withdraw Soviet troops from Moldovan territory”.
32. After the declaration of independence of the Republic of Moldova, the 14 th Army of the military district of Odessa of the Ministry of Defence of the USSR (“the 14 th Army”), whose headquarters had been in Chişinău since 1956, remained in Moldovan territory. Large-scale movements of equipment were nevertheless reported from 1990 onwards: among other transfers, large quantities of equipment began to be withdrawn from Moldovan territory.
33. During 1991, the 14 th Army was composed of several thousand soldiers, infantry units, artillery (notably an anti-aircraft missile system), armoured vehicles and aircraft (including planes and strike helicopters), and had a number of ammunition stores, including one of the largest in Europe at Kolbasna in Transdniestria.
34. In addition to the weaponry of the 14 th Army, DOSAAF, “The Voluntary Association for Assistance to the Army, Air Force and Navy” ( ДОСААФ – Добровольное Общество Содействия Армии Авиации и Флоту ), a State organisation situated in Moldovan territory set up in 1951 to prepare the civilian population for war, had a stock of ammunition.
After the proclamation of Moldova's independence, the DOSAAF equipment situated in that part of the national territory controlled by the Moldovan Government passed into their hands and the remainder – located in Transdniestria – passed into those of the Transdniestrian separatists.
35. On 6 September 1991 the “Supreme Soviet of the Moldavian Republic of Transdniestria” issued an order placing all establishments, enterprises, organisations, militia units, public prosecutors'offices, judicial bodies, KGB units and other services in Transdniestria, with the exception of military units belonging to the Soviet armed forces, under the jurisdiction of the “ Republic of Transdniestria ”. Officers, non-commissioned officers, and other ranks of military units stationed in Transdniestria were urged to “show civic solidarity and mobilise to defend the Republic of Transdniestria alongside workers'representatives in the event of invasion from Moldova ”.
36. On 18 September 1991 the “President of the Supreme Soviet of the Moldavian Soviet Socialist Republic of Transdniestria” decided to place the units of the Soviet armed forces deployed in Transdniestria under the jurisdiction of the “Republic”.
37. By Decree no. 234 of 14 November 1991, the President of Moldova, Mr Snegur, 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.
38. On 8 December 1991 Belarus, the Russian Federation and Ukraine signed the Minsk Agreement, noting the end of the Soviet Union's existence and setting up the Commonwealth of Independent States ( CIS – see paragraph 29 0 below).
39. On 21 December 1991 eleven member States of the USSR, including Moldova and Ukraine, signed the Alma- Ata Declaration, which confirmed and extended the Minsk Agreement setting up the CIS. The Alma- Ata Declaration also confirmed that, through the establishment of the CIS, the USSR had ceased to exist and that the CIS was neither a State nor a supra-State entity. A Council of the Heads of Government of the CIS was also set up and decided to support Russia as the successor to the USSR at the United Nations, including the Security Council, and in other international organisations.
40. On 30 January 1992 the Republic of Moldova became a member of the Conference on Security and Cooperation in Europe (CSCE). On 2 March 1992 it was admitted to the United Nations.
41. On 8 April 1994 the Moldovan parliament ratified, with certain reservations, the treaty providing for Moldova's accession to the CIS, signed by the Moldovan President at Alma- Ata on 21 December 1991 (see paragraph 29 3 below ).
2. The armed conflict (1991- 92)
42. The statements made to the Court's delegates during the on-the-spot investigation have confirmed that military operations took place during the conflict (see Annex : Mr Urîtu, §§ 6 4-66 and 69-71; X, §§ 216, 21 8 and 2 20; Mr Snegur, §§ 2 30 and 238; Mr Moşanu, §§ 243 - 45; Y, § 254; Z, §§ 271 and 277- 8 1; General Petrică, §§ 296-97 and 299; Mr Costaş, §§ 40 1, 40 5 - 07 and 409; and Mr Creangă, §§ 457 - 60). These military operations are also attested to by other documents in the file.
The respondent Governments did not contest the veracity of the detailed information set out below, although they gave different interpretations of the facts (see paragraphs 5 0, 56- 57, 60, and 62 -64 below).
43. From 1989 onwards, movements of resistance to Moldovan independence began to form in southern Moldova (Gagauzia) and the east of the country (Transdniestria).
44. Armed clashes broke out on a limited scale between the Transdniestrian separatists and the Moldovan police as early as November 1990 in eastern Moldova, at Dubăsari, on the left bank of the Dniester.
45. In the months that followed, the Transdniestrian authorities created paramilitary units called “workers'detachments”, on the basis of which a professional and fully equipped “Republican Guard” was formed in 1991 (see the previously cited OSCE information document of 10 June 1994 – note to paragraph 28 above).
46. The applicants alleged that on 19 May 1991 the USSR's Minister of Defence had ordered the commander of the 14 th Army, General Netkachev, to call up reservists to make up the complement of the 14 th Army troops deployed in Transdniestria and to put these troops and their military equipment on combat footing. He allegedly justified that order in the following terms: “Given that Transdniestria is Russian territory and that the situation there has deteriorated, we must defend it by all means possible. ”
47. On 1 December 1991 a presidential election – declared illegal by the Moldovan authorities – was organised in the provinces ( raioane ) on the left bank of the Dniester (Transdniestria). Mr Igor Smirnov was elected “President of the MRT ”.
48. By a decree of 5 December 1991, Mr Smirnov decided to place “the military units deployed in the Moldavian Republic of Transdniestria, attached for the most part to the Odessa military district, under the command of the head of the National Defence and Security Department of the Moldavian Republic of Transdniestria”. The head of that department, Mr Gennady I. Iakovlev, who was also the commander of the 14 th Army (see paragraph 5 3 below), was requested to take all necessary measures to put an end to transfers and handovers of weaponry, equipment and other property of the Soviet army in the possession of the military units deployed in Transdniestria. The declared aim of that measure was to preserve, for the benefit of the Transdniestrian separatist regime, the weapons, equipment and assets of the Soviet army in Transdniestria.
49. In December 1991 the Moldovan authorities arrested Lieutenant-General Iakovlev in Ukrainian territory, accusing him of helping the Transdniestrian separatists to arm themselves by using the weapons stocks of the 14 th Army. He was taken to Moldovan territory for the purposes of the investigation.
50. According to the applicants, Lieutenant-General Iakovlev was arrested by the Moldovan authorities and accused of arming the separatists. After his arrest he had allegedly made statements confirming the Russian Federation's intervention in the conflict and its support for Transdniestria, and these had been recorded on about ten cassettes. However, they contended that Lieutenant-General Iakovlev had been released as a result of the intercession with the Moldovan authorities of a Russian general, Nicolai Stolearov, who had travelled from Moscow to Chişinău for that very reason.
The Moldovan Government did not comment on this point.
Although several witnesses made the assertion (see Annex : Mr Urîtu, § 66; Mr Postovan, § 182; Z, § 272; and Mr Plugaru, § 286 ), the Court cannot accept that it has been established beyond a reasonable doubt that Lieutenant- General Iakovlev was released in exchange for a number of Moldovan police officers held prisoner by the Transdniestrian forces. It has heard different accounts of the exact reasons for Lieutenant- General Iakovlev's release and, in the absence of any documentary evidence about what took place during the investigation or about his release, it can neither dismiss nor accept the accounts of the witnesses, most of whom, in the delegates'opinion, were generally credible.
On the other hand, the Court notes that all the witnesses questioned on the subject agreed that a Russian general had travelled from Moscow to Chişinău to obtain Lieutenant- General Iakovlev's release.
The Court accordingly considers it to be established beyond a reasonable doubt that the authorities of the Russian Federation interceded with the Moldovan authorities to obtain the release of Lieutenant- General Iakovlev.
51. 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.
52. The applicants referred to a number of facts which gave a precise indication of the course of the fighting. These facts were not contested by the respondent Governments or rebutted by the witness evidence taken by the delegates during the on-the-spot investigation.
53. On 6 December 1991, in an appeal to the international community and the United Nations Security Council, the President of the Republic of Moldova, Mircea Snegur, the President of the Moldovan parliament, Alexandru Moşanu, and the Prime Minister, Valeriu Muravschi, 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 14 th Army, which had been under the command of Lieutenant-General Iakovlev since a date which has not been specified. They accused the authorities of the USSR, particularly the Ministry of Defence, of having prompted these acts. The soldiers of the 14 th Army were accused of distributing military equipment to the Transdniestrian separatists and organising the separatists into military detachments which were terrorising the civilian population.
54. By a decree of 26 December 1991, Mr Smirnov, the “President of the MRT ”, created the “armed forces of the MRT ” from troops and formations stationed in the territory of the “ MRT ”, with the exception of the armed forces making up the “Strategic Peacekeeping Forces”.
55. In January 1992 Lieutenant-General Iakovlev was relieved of command of the 14 th Army by the command of the combined armed forces of the CIS. By a decision of 29 January 1992 of the commander-in-chief of the joint armed forces of the CIS, Lieutenant-General Iakovlev was placed at the disposal of the Military Registration Bureau of the Primorski district of the city of Odessa ( Ukraine ).
56. In 1991-92, during clashes with the Moldovan security forces, a number of military units of the USSR, and later of the Russian Federation, went over with their ammunition to the side of the Transdniestrian separatists, and numerous items of the 14 th Army's military equipment fell into separatist hands.
The parties disagreed about how these weapons came to be in the possession of the Transdniestrians.
57. The applicants submitted that the 14 th Army had armed the separatists in two ways: firstly, ammunition stores belonging to the 14 th Army had been opened up to the separatists; secondly, 14 th Army personnel had offered no resistance when separatist militiamen and civilians tried to seize military equipment and ammunition. For example, no force had been used against the Committee of Transdniestrian Women, led by Galina Andreeva.
The Court notes the explanation given by an ROG officer (see Annex : Colonel Verguz, § 359) about the forcible seizure of weapons by women and children and observes that this account was contested by all the Moldovan witnesses questioned on the subject.
The Court considers it highly improbable that women and children could have seized weapons and ammunition guarded by armed military personnel in locked stores without the guards'agreement.
In short, the Court considers it to have been established beyond a reasonable doubt that Transdniestrian separatists were able to arm themselves with weapons taken from the stores of the 14 th Army stationed in Transdniestria. The 14 th Army troops chose not to oppose the separatists who had come to help themselves from the Army's stores; on the contrary, in many cases they helped the separatists equip themselves by handing over weapons and by opening up the ammunition stores to them (see Annex : Mr Urîtu, § 65; Mr Petrov-Popa, § 130; Mr Postovan, §§ 182 and 201; Mr Costaş, § 407; and Mr Creangă, § 457).
58. The applicants asserted that 14 th Army troops had joined the separatist side with the evident approval of their superiors.
59. The 14 th Army's Parcani sapper battalion, under the orders of General Butkevich, had gone over to the separatist side. That information has been confirmed by the Russian Government. The applicants went on to say that at the time of this “transfer” the sappers were in possession of a considerable number of Kalashnikov rifles, cartridges, TT and Makarov pistols, grenades and grenade launchers and air-to-ground rocket launchers. It was the Parcani battalion which had destroyed the bridges at Dubăsari, Gura Bâcului-Bâcioc and Coşniţa.
The applicants further asserted that, on 20 July 1992, armoured combat vehicles, mine throwers, battle tanks and armoured transport vehicles were transferred from 14 th Army units to the separatists. In addition, during the fighting, eight 14 th Army helicopters had taken part in transporting ammunition and the wounded on the separatist side.
In a written statement sent to the Court by Mr Leşco's representative on 19 November 2001, Mrs Olga Căpăţînă, a former volunteer attached to the Moldovan Ministry of National Security from 15 March to 15 August 1992, said that during that period, as evidenced by a certificate issued by the Ministry, she had worked for the general staff of the Russian army, at the 14 th Army's command and espionage centre, under the name of Olga Suslina. While working there, she had sent the Moldovan Ministry of National Security hundreds of documents confirming the participation of Russian troops in the armed operations and the massive contribution of weapons they had made. She had also gathered information proving that the separatists'military operations were directed by the 14 th Army, which coordinated all its actions with the Ministry of Defence of the Russian Federation.
60. The applicants asserted that thousands of Russian Cossacks had come from Russia to fight alongside the separatists; the Union of Cossacks, a Russian association, had been recognised by the Russian authorities. They alleged that the arrival of the Cossacks from Russia had not been hindered in any way by the Russian authorities, in spite of the appeal to them made by the Moldovan President, Mr Snegur. On the contrary, 14 th Army officers had welcomed nearly 800 Cossacks at the beginning of March 1992 and armed them. The applicants asserted in that connection that, whereas in 1988 there had been no Cossacks in Moldovan territory, nearly 10,000 Cossacks who had come from the Russian Federation were now living in Transdniestrian territory.
The Russian Government submitted that Cossacks could be found in other parts of the world and that everyone had the right to freedom of movement.
The Court notes that several documents in the file and statements taken down by the delegates show that large numbers of Cossacks and other Russian nationals went to Transdniestria to fight alongside the separatists. It further notes that the Russian Government have not denied this.
The Court accordingly considers it to be established beyond a reasonable doubt that large numbers of Russian nationals went to Transdniestria to fight in the ranks of the Transdniestrian separatists against the Moldovan forces.
61. In a book published in 1996 by the publishing house Vneshtorgizdat and entitled General Lebed – Russian Enigma, the author, Vladimir Polushin, supplies plentiful evidence, backed up by documentary sources, of the support given by the Russian Federation to the Transdniestrian separatists. The book mentions, for example, the creation by General Lebed of the Russo-Transdniestrian joint defence headquarters and the participation by the 14 th Army in the military operations conducted by the Transdniestrian forces against the Moldovan “enemy”.
Referring to this book, the applicants mentioned by way of example the destruction of a Moldovan unit by the 14 th Army at Chiţcani on 30 June 1992 and the shelling by the 14 th Army of several Moldovan positions at Coşniţa, Dubăsari, Slobozia and Hârbovăţ between 1 June and 3 July 1992.
The other parties did not comment on the information given in the book.
62. The applicants further submitted that the bridge abutments on the left bank of the Dniester had been mined by 14 th Army personnel.
The Court notes that one witness directly involved at the highest level in the military operations during the conflict asserted that part of the territory on the left bank of the Dniester had been mined, that this work had been done by specialists, and that after the end of the conflict the Moldovan army had had to have recourse to foreign specialists in order to demine the area (see Annex : Mr Costaş, § 406). That information was not disputed by the other parties.
Taking account also of the witness's credibility, the Court can take it to be established that part of Moldovan territory situated on the left bank of the Dniester was mined by the forces opposing the Moldovan army. On the other hand, it notes that this witness was unable to assert categorically that the mines had been laid by 14 th Army personnel, but merely contended that logically work of such a technical level could only have been carried out by professionals, that is by 14 th Army troops. It likewise notes that this witness asserted that the separatists had seized anti - personnel mines previously held in the 14 th Army's stores. In the circumstances, the Court considers that this assertion is not certain “beyond a reasonable doubt” and therefore cannot take it as established that it was 14 th Army or ROG personnel who laid mines on the left bank of the Dniester.
63. The Moldovan Government asserted that they had never claimed that the army of the Russian Federation had been legally stationed in Moldovan territory, or that the 14 th Army had not intervened in the Transdniestrian conflict.
On the contrary, they asserted, as appeared from the witness evidence taken by the Court's delegates, that the 14 th Army had intervened actively, both directly and indirectly, in the Transdniestrian conflict, against the armed forces of Moldova. The Transdniestrian separatists had been able to arm themselves with weapons belonging to the 14 th Army and with the 14 th Army's complicity. The Moldovan Government considered that no faith could be placed in assertions that women had forcibly seized weapons and ammunition from the 14 th Army's stores. Moreover, not a single Russian soldier had subsequently been disciplined for negligence or complicity in the seizure of equipment from the 14 th Army's stores.
64. The Russian Government argued that the 14 th Army had been in Moldova when the Transdniestrian conflict broke out. The Russian military forces as such had taken no part whatsoever in the fighting and had not been involved in the acts complained of. However, where illegal armed operations had been carried out against soldiers of the 14 th Army, appropriate measures had been taken in accordance with international law. In general, the Russian Government were prepared to accept as a hypothesis that individuals claiming allegiance to the 14 th Army might have taken part in the acts in issue, but emphasised that if that had been the case such conduct would have constituted a gross breach of Russian legislation, for which the individuals responsible would have been punished.
The Russian Government went on to say that the Russian Federation had remained neutral in the conflict. In particular, it had not supported the combatants in any way, whether militarily or financially.
65. The Court notes that all the Moldovan witnesses questioned categorically confirmed the active involvement, whether direct or indirect, of the 14 th Army, and later of the ROG, in the transfer of weapons to the Transdniestrian separatists. They also confirmed the participation of Russian troops in the conflict, particularly the involvement of tanks bearing the flag of the Russian Federation, shots fired towards the Moldovan positions from units of the 14 th Army and the transfer of a large number of 14 th Army troops to the reserves so that they could fight alongside the Transdniestrians or train them (see Annex : Mr Costaş, § 406; and Mr Creangă, § 457 ).
These assertions are corroborated by the information contained in OSCE report no. 7 of 29 July 1993, added to the file by the Romanian Government, and by other sources (see Annex : Mr Moşanu, § 244). In that connection, the Court notes both the abundance and the detailed nature of the information in its possession on this subject.
It sees no reason to doubt the credibility of the Moldovan witnesses heard, and notes that their assertions are corroborated by the Moldovan Government, who confirmed these facts in all of the observations they submitted throughout the proceedings.
As to the Russian Government's allegation that the witnesses belonged to political circles opposed to the Russian Federation, the Court notes that this has not been substantiated.
Moreover, it is not possible for the Court to determine precisely on the basis of the statements taken what the relative strengths of the combatants were. However, regard being had to the support given by the troops of the 14 th Army to the separatist forces and the massive transfer of arms and ammunition from the 14 th Army's stores to the separatists, it is certain that the Moldovan army was in a position of inferiority that prevented it from regaining control of Transdniestria (see Annex : Z, § 271; and Mr Costaş, § 401).
66. On 5 March 1992 the Moldovan parliament protested against the silence of the Russian authorities, amounting to complicity in its view, about the support allegedly given to the Transdniestrian separatists by armed groups of Cossacks from Russia belonging to the Union of Cossacks, an association recognised by the Russian authorities. The Moldovan parliament asked the Supreme Soviet of the Russian Federation to intervene, with a view to securing the immediate withdrawal of the Russian Cossacks from Moldovan territory.
67. On 23 March 1992 the Ministers for Foreign Affairs of Moldova, the Russian Federation, Romania and Ukraine met in Helsinki, where they adopted a declaration laying down a number of principles for the peaceful settlement of the conflict. At further meetings held in April and May 1992 in Chişinău, the four ministers decided to set up a Quadripartite Commission and a group of military observers to supervise observance of any ceasefire.
68. On 24 March 1992 the Moldovan parliament protested about interference by the Russian Federation in Moldovan affairs after the Presidium of the Supreme Soviet of the Russian Federation issued a declaration on 20 March 1992 recommending to Moldova solutions for the settlement of the Transdniestrian conflict consistent with respect for the rights of the “Transdniestrian people”.
69. On 28 March 1992 the President of the Republic of Moldova, Mr Snegur, decreed a state of emergency. He noted that “adventurers” had created on the left bank of the Dniester, “not without outside help”, a “pseudo-State”, and that, “armed to the teeth with the most up-to-date equipment of the Soviet army”, they had unleashed armed conflict, doing everything they could to bring about the intervention in the conflict of the 14 th Army of the combined armed forces of the CIS. Under the state of emergency, the Moldovan Ministries of National Security and of the Interior and other relevant bodies, acting in concert with the units of the Moldovan army, were ordered by the President to take all necessary measures to break up and disarm illegally armed formations and seek out and bring to justice all those who had committed crimes against the organs of the State and the population of the Republic. The founders of the “so-called Moldavian Republic of Transdniestria ” and their accomplices were enjoined to dissolve illegal armed formations and surrender to the organs of the Republic.
70. By Decree no. 320 of 1 April 1992, the President of the Russian Federation placed the military formations of the USSR stationed in Moldovan territory, including those on the left bank of the Dniester, under the jurisdiction of the Russian Federation, so that the 14 th Army became the Russian Operational Group in the Transdniestrian region of Moldova (“the ROG” or, as previously, “the 14 th Army”).
71. By Decree no. 84 of 1 April 1992, the “President of the MRT ”, Mr Smirnov, relieved Lieutenant-General Iakovlev of command of the “Defence and Security Department of the MRT ”.
72. On 2 April 1992 General Netkachev, the commander of the ROG (the 14 th Army), 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.
73. The applicants alleged that, after that ultimatum from General Netkachev, joint military exercises between the 14 th Army and the separatists began on the former's shooting range in Tiraspol.
74. On 4 April 1992 the Moldovan President, Mr Snegur, sent a telegram to the heads of State of the member countries of the CIS, to the commander of the combined armed forces of the CIS and to the commander of the 14 th Army, drawing their attention to the fact that the 14 th Army was failing to remain neutral.
75. On 5 April 1992 Alexander Rutskoy, the Vice-President of the Russian Federation, went to Tiraspol. As evidenced by the press articles the applicants submitted to the Court, which have not been contested by the other parties, Mr Rutskoy first visited a military unit of the 14 th Army and then went to Tiraspol's central square, in the company of Mr Smirnov. In a speech to the five thousand people present, Mr Rutskoy declared that Mr Snegur did not wish to engage in dialogue and that the best solution would be a confederation in which Moldovans and Russians would live together on an equal footing. Lastly, he said that the 14 th Army should act as a buffer between the combatants so that the Transdniestrian people could obtain their independence and their sovereignty and work in peace.
76. By Order no. 026 of 8 April 1992 from the commander-in-chief of the combined armed forces of the CIS, it was decided that only troops and units of the 14 th Army stationed in the territory of the former Moldovan Soviet Socialist Republic could form the basis for the creation of the armed forces of the Republic of Moldova.
Three military units which had been part of the 14 th Army decided to join the new army of the Republic of Moldova. These were a unit at Floreşti (ammunition store no. 5381), the 4 th artillery regiment at Ungheni and the 803 rd rocket artillery regiment at Ungheni.
The soldiers of the 115th independent battalion of sappers and firemen of the 14 th Army refused to enlist in the armed forces of Moldova and “placed themselves under the jurisdiction of the Transdniestrian region”, according to the terms used by the Russian Government.
77. In a message sent in April 1992 to the commander-in-chief of the combined armed forces of the CIS, the President of Moldova, Mr Snegur, declared that the events in Transdniestria were prompted and supported by “the imperial and pro-communist structures of the USSR and their legal successors” and that the 14 th Army had not been neutral in the conflict. In that connection, he emphasised that the Transdniestrian military formations were equipped with modern weapons which had belonged to the former Soviet army and that large numbers of Russian citizens had taken part in the conflict on the separatist side as mercenaries.
78. In a letter sent in April 1992 to the leaders of the member countries of the United Nations Security Council, the OSCE and the CIS, Mr Snegur accused the commander of the 14 th Army of arming the Transdniestrian units in December 1991 and complained of the attitude of the 6 th Congress of Deputies of the Russian Federation, which had called for the continuing presence in Moldova of units of the army of the Russian Federation as “pacification forces”. Lastly, Mr Snegur observed that one essential condition for the peaceful settlement of the Transdniestrian conflict was the rapid withdrawal of the army of the Russian Federation from Moldovan territory, and asked the international community to support the young Moldovan State in its struggle for freedom and democracy.
79. On 20 May 1992 the President of the Moldovan parliament protested against the occupation of further parts of Transdniestria on 19 May 1992 by the forces of the 14 th Army, backed up by Cossack and Russian mercenaries and by Transdniestrian paramilitary forces. His statement pointed out that this military aggression on the part of the Russian Federation violated Moldova's sovereignty and all the rules of international law, making the negotiations then in progress to find a solution to the conflict in Transdniestria a sham. The President accused the Russian Federation of arming the Transdniestrian separatists and asked the Supreme Soviet of the Russian Federation to call a halt to the aggression and withdraw Russian military forces from Moldovan territory.
80. This protest was also directed against speeches deemed to be “full of aggression” towards Moldova made in Tiraspol and Moscow by Mr Rutskoy, the Vice-President of the Russian Federation, and against a statement made on 19 May 1992 by the Military Council of the ROG.
81. On 26 May 1992 the Moldovan parliament sent a letter to the Supreme Soviet of Ukraine, expressing its gratitude to the Ukrainian authorities, who had declined to join in the occupation of 19 May 1992.
82. On 22 June 1992 the Moldovan parliament appealed to the international community, opposing the “new aggression perpetrated in Transdniestria on 21 June 1992 by the forces of the 14 th Army” and complaining that its actions of destruction and pillage had driven large numbers of civilians to flee their homes. The international community was urged to send experts to Transdniestria to halt the “genocide” of the local population.
83. On 23 June 1992 the President of Moldova, Mr Snegur, asked the Secretary-General of the United Nations, Mr Boutros Boutros-Ghali, to inform the members of the Security Council of the “assault on the town [of Tighina] by the 14 th Army”, which he viewed as “direct and brutal” interference in the Republic of Moldova's internal affairs. He also expressed his concern about the statements of the President of the Russian Federation, Mr Yeltsin, and its Vice-President, Mr Rutskoy, “which clearly show[ed] that the Russian Federation [was] not prepared to abandon the'rights'it no longer possess[ed], either de jure or de facto, over a territory that no longer belong[ed] to it after the dismemberment of the Soviet empire”. Mr Snegur concluded: “The threats recently repeated against the legal leaders of the Republic of Moldova, an independent and sovereign State, by the Russian authorities are a cause for concern to the Moldovan public, since they seem to prefigure other means of interference in our internal affairs, that is, means and methods specific to the Soviet communist imperialist system ... ”
84. In the first half of July 199 2, intense discussions took place within the CIS about the possibility of deploying a CIS peacekeeping force in Moldova. Mention was made in that connection of an agreement signed in Minsk in March 1992 concerning groups of military observers and strategic CIS peacekeeping forces.
85. At a CIS meeting held in Moscow on 6 July 1992, it was decided to deploy in Moldova, as a preliminary step, a CIS peacekeeping force made up of Russian, Ukrainian, Belarusian, Romanian and Bulgarian troops, on condition that Moldova requested this. Although the Moldovan parliament made such a request the next day, the force was never deployed since some countries had had second thoughts about their agreement to join a CIS force.
86. On 10 July 1992, at the Helsinki Summit of the CSCE, the President of Moldova, Mr Snegur, asked for consideration to be given to the possibility of applying the CSCE peacekeeping mechanism to the Moldovan situation. That was not done because there was not an effective and lasting ceasefire (see the previously cited OSCE information document of 10 June 1994 – note to paragraph 28 above ).
87. On 21 July 1992 the President of the Republic of Moldova, Mr Snegur, and the President of the Russian Federation, 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” – see paragraph 29 2 below).
The copy submitted to the Court by the Moldovan Government bears the signatures of Mr Snegur and Mr Yeltsin only. The Russian Government supplied the Court with a copy bearing the signatures of Mr Snegur and Mr Yeltsin, as the Presidents of Moldova and the Russian Federation respectively. Underneath the signature of Mr Snegur, that copy also bears the signature of Mr Smirnov, without any indication of his status.
Mr Smirnov's signature is not on the copy submitted by the Moldovan Government. In his statement to the Court's delegates, Mr Snegur confirmed that the official document in two copies was signed by him and Mr Yeltsin only (see Annex : Mr Snegur, § 228).
As appears from the witness evidence given to the Court, the broad lines of the agreement were drafted by the Russian side, which presented it for signature to the Moldovans (see Annex : Z, § 281).
88. The Russian Government argued that under the terms of Article 4 of the agreement of 21 July 1992, the Russian Federation signed the agreement not as a party to the conflict but as a peace broker.
89. 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).
90. 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 (Bender).
The agreement also provided for peacekeeping forces 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.
91. 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 self-government, 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 the 14 th Army of the Russian Federation, 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.
Lastly, 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).
3. Events after the armed conflict
92. On 29 July 1994 Moldova adopted a new Constitution. It provides, inter alia, that Moldova is neutral, that it prohibits the stationing in its territory of troops belonging to other States and that a form of autonomy may be granted to regions which include some areas on the left bank of the Dniester (see paragraph 294 below).
93. On 21 October 1994 Moldova and the Russian Federation signed an agreement concerning the legal status of the military formations of the Russian Federation temporarily present in the territory of the Republic of Moldova and the arrangements and time-limits for their withdrawal (see paragraph 296 below).
Article 2 of the agreement provided that the withdrawal of the Russian army from Moldovan territory was to be synchronised with the political settlement of the Transdniestrian conflict and the establishment of a special status for the “ Transdniestrian region of the Republic of Moldova ”.
This agreement was not ratified by the authorities of the Russian Federation and so never came into force (see paragraph 115 below).
94. The applicants submitted that the Russian peacekeeping forces had not maintained strict neutrality, but had favoured the Transdniestrians by allowing them to change the balance of forces which had obtained between the parties at the time of the ceasefire of 21 July 1992.
95. On 28 December 1995 the Moldovan delegation to the JCC sent a letter to the head of the Russian delegation to the JCC protesting about a proposal by the deputy commander of the Russian Federation's land forces to transfer the powers of the Russian peacekeeping units to the units of the ROG, which the Moldovan delegation considered to be contrary to Article 4 of the agreement of 21 July 1992. The proposal was also deemed unacceptable in view of “a certain level of politicisation of the men of the ROG and their lack of impartiality vis-à-vis the parties to the conflict”. The Moldovan delegation referred to a number of infringements of the principle of neutrality set forth in the agreement of 21 July 1992, which included: the transfer of certain military equipment and ammunition by the 14 th Army to the unconstitutional authorities in Tiraspol; training of “ MRT ” troops by the Russian army; and transfers of military units from the 14 th Army to the “ MRT ” side – for example, the Parcani sapper battalion, converted into an “ MRT ” artillery unit, the transfer of the fortress of Tighina ( Bender ) to the 2nd “MRT” infantry brigade, or the transfer to the “ MRT ” of the Slobozia depot, occupied by a 14 th Army signals battalion.
The Moldovan delegation drew attention to the fact that “ MRT ” military units had been brought into the security zone with the connivance of the JCC's Russian troops, that new paramilitary units had been formed in the town of Tighina ( Bender ), which had been declared a security zone and was under the responsibility of the Russian peacekeeping forces, and that firms in Tighina ( Bender ) and Tiraspol were manufacturing weapons and ammunition.
The Moldovan delegation asked their government to consider the possibility of replacing the Russian peacekeeping forces in Transdniestria by a multinational force under the auspices of the United Nations or the OSCE. Lastly, the Moldovan delegation expressed their hope for rapid implementation of the agreement of 21 October 1994 on the withdrawal of the armed forces of the Russian Federation from Moldovan territory.
96. In a letter dated 17 January 1996, the head of the Russian delegation to the JCC stated that the examples of an alleged lack of impartiality on the part of 14 th Army personnel given by the Moldovan delegation in their letter of 28 December 1995 were “distortions” and untrue. The Russian delegation considered that the agreement of 21 July 1992 undoubtedly permitted the Russian Federation to transfer to the ROG duties which had been given to the peacekeeping forces and asked the Moldovan delegation to review their position and reconsider the proposals to that effect made by the Russian Minister of Defence.
97. On 8 May 1997 in Moscow, Mr 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, in which they undertook to settle any conflict they might have through negotiations, with the assistance, where necessary, of the Russian Federation and Ukraine, as guarantors of compliance with the agreements reached, and of the OSCE and CIS. The memorandum was countersigned by the representatives of the guarantor States, namely Mr Yeltsin for the Russian Federation and Mr Kuchma for Ukraine. It was also signed by Mr H. Petersen, the OSCE President, who was present at the signing by the parties and the guarantor States.
Under the terms of the memorandum, the status of Transdniestria is to be based on the following principles: decisions must be agreed by both sides, powers must be shared out and delegated, and guarantees must be secured reciprocally. Transdniestria must 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 to unilaterally establish and maintain international contacts in economic, scientific, technical, cultural and other fields, to be determined by mutual agreement.
The memorandum welcomes the willingness of the Russian Federation and Ukraine to act as guarantors of compliance with the provisions contained in the documents defining the status of Transdniestria and in the memorandum. The parties also confirmed the need to pursue the joint peacekeeping forces'common activities in the security zone, in accordance with the agreement of 21 July 1992. In the event of a breach of the agreements, the memorandum also entitles the parties to seek consultations with the guarantor States with a view to measures being taken to normalise the situation. Lastly, the two parties undertook to establish relations between themselves in the context of a shared State within the borders of the Moldavian SSR as it existed on 1 January 1990.
98. On 20 March 1998 representatives of Moldova, Transdniestria, the Russian Federation and Ukraine signed in Odessa (Ukraine) a number of documents intended to secure the settlement of the Transdniestrian conflict (see paragraph 123 below).
99. In observations submitted in 1999 on a draft report on Moldova by the Parliamentary Assembly's Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe, the Moldovan Government indicated that the separatist authorities were illegally removing weapons from the ROG's stores “with the tacit agreement of the authorities of the Russian Federation, whose peacekeeping forces are deployed in the security zone of the Transdniestrian region of Moldova”.
100. In a letter of 6 February 2001, the Moldovan delegation to the JCC sent a letter to the heads of the Russian and Transdniestrian delegations to the JCC protesting about the partiality of the commanders of the peacekeeping forces. They were accused of permitting the introduction of military equipment and ammunition into the security zone and the enlistment of Transdniestrian armed military units. The Moldovan delegation emphasised that these facts had been noted by the military observers on the ground and complained of the attitude of the commander of the Russian peacekeeping forces, who had neither monitored nor prevented the militarisation of the security zone, thus failing to respect the status of the peacekeeping forces. Lastly, the Moldovan delegation pointed out that such an attitude on the part of the Russian peacekeeping forces was an encouragement for the Transdniestrians.
The Russian Government asserted that the peacekeeping forces respected the neutrality required by the agreement of 21 July 1992.
The Court notes the witness evidence given by the commander of the Russian peacekeeping forces, Colonel Zverev (see Annex, § 368), to the effect that the Russian peacekeeping forces complied with the agreement. The witness further declared that he was not aware of illegal acts by Transdniestrians in the zone controlled by the Russian forces.
The Court observes, however, that the evidence in question is contradicted by the JCC's official documents, which show, with an abundance of details, that in various areas of Transdniestria under the control of the Russian peacekeeping forces, such as the area of Tighina (Bender), Transdniestrian separatist forces were breaching the ceasefire agreement.
Having regard to the official nature of the JCC documents and the consistency of the information they contain, the Court considers it to be established with a sufficient degree of certainty that, in the area under the responsibility of the Russian peacekeeping forces, the Transdniestrians have not discharged the obligations arising for them from the agreement of 21 July 1992.
101. On 16 April 2001 the Presidents of the Republic of Moldova and the Russian Federation, Mr Voronin and Mr Putin, signed a joint declaration, point 5 of which states:
“The Presidents advocated the rapid and fair settlement of the Transdniestrian conflict by exclusively peaceful means based on respect for the principle of the Republic of Moldova's sovereignty and territorial integrity, and for international human rights standards.”
102. In a document dated 4 September 2001 analysing implementation of the Moldovan-Russian agreement of 20 March 1998 on the principles for a peaceful settlement of the armed conflict in the Transdniestria region of the Republic of Moldova, the Moldovan delegation to the JCC pointed to the failure of the Transdniestrian side to fulfil their obligations, in that they had created new military units, introduced weapons into the security zone and set up customs posts. The Moldovan delegation expressed concern about the fact that the joint military command had not taken any suitable steps to put an end to the situation but had merely noted the facts. The Moldovan delegation proposed that concrete measures to ensure that parties'undertakings were honoured be discussed by the Ministries of Foreign Affairs of Moldova and the Russian Federation. Lastly, the Moldovan delegation proposed that the function of military observer in the security zone be placed under the patronage of the OSCE.
103. In March 2003 the Russian peacekeeping forces in Transdniestria comprised 294 soldiers, 17 armoured vehicles, 29 other vehicles and 264 firearms.
To date, according to the witness evidence given to the Court (see Annex : Colonel Zverev, § 367), no soldier of the 14 th Army or the ROG has been employed in the Russian peacekeeping forces.
104. Meetings with the Transdniestrian side continue to take place to discuss various aspects of a possible solution to the situation in Transdniestria.
105. At these negotiations, the Moldovan side persuaded the Transdniestrians to set up a commission to examine the possibility of pardoning all persons convicted and detained in Transdniestria as a result of judgments pronounced by the Transdniestrian courts (see Annex: Mr Sturza, §§ 309, 312 and 318).
106. One of the subjects regularly placed on the negotiations agenda is the immunity from prosecution requested by the Transdniestrian side for civil servants and officials of the Transdniestrian administration (see Annex : Mr Sturza, § 314; and Mr Sidorov, § 446).
107. Since 2002 a number of plans to give Moldova a federal structure have been proposed by the OSCE, the President of Moldova and the Russian Federation.
108. The most recent negotiations, conducted with the help of the OSCE, were based on proposals aimed at setting up a federal State in which Transdniestria would be autonomous.
109. On 4 April 2003, in the context of negotiations with Transdniestria, the Moldovan parliament adopted a protocol concerning the creation of a mechanism for drafting a federal constitution for the Republic of Moldova.
110. According to a press release put out by the OSCE mission in Moldova, the first meeting of the joint commission took place on 24 April 2003 at OSCE headquarters in Moldova. At that meeting it was decided that a final text should be made ready by October 2003 so that the new Constitution could be presented to all of the Moldovan people for adoption at a referendum to be organised in February 2004.
B. The presence of the army of the Russian Federation and its personnel in Transdniestria after the agreement of 21 July 1992
1. ROG troops and equipment in Transdniestria
(a) Before ratification of the Convention by the Russian Federation
111. As provided for in Article 4 of the ceasefire agreement of 21 July 1992, Moldova and the Russian Federation began negotiations over the withdrawal of the ROG from Moldovan territory and its status pending such withdrawal.
Russia proposed in 1994 that the ROG's withdrawal from Moldovan territory should be timed to coincide with settlement of the Transdniestrian conflict (see paragraph 9 3 above), and Moldova only accepted that proposal, which it considered counterproductive, on Russia's insistence and after persuading Russia to declare itself in favour of the speedy release of the members of the Ilaşcu group (see Annex : Y, § 254).
In a press release of 12 February 2004, the Moldovan Ministry of Foreign Affairs said that the Moldovan authorities were categorically opposed to any synchronisation between the political settlement of the Transdniestrian conflict and the withdrawal of the Russian armed forces from Moldovan territory, and that they sought the complete and unconditional withdrawal of the Russian armed forces, in accordance with the OSCE's decisions (see paragraph 124 below), especially as the OSCE member States had set up a voluntary fund to finance the withdrawal in question.
112. Article 2 of the agreement of 21 October 1994 (“the first agreement”) provided for the withdrawal by Russia of its military formations within three years from the entry into force of the agreement, with implementation of the withdrawal within the time-limit to take place simultaneously with a political settlement of the Transdniestrian conflict and the establishment of a special status for the “Transdniestrian region of the Republic of Moldova” (see paragraph 296 below). As regards the stages and dates for the final withdrawal of Russian troops, Article 2 provided that these were to be determined in a separate protocol to be concluded between the parties'Ministries of Defence.
113. Under Article 5 of the agreement, the sale of any type of military technology, weapon or ammunition belonging to the military forces of the Russian Federation stationed in the territory of the Republic of Moldova could take place only by way of a special agreement between the governments of the two countries.
114. According to Article 7 of the agreement, Tiraspol military airport was to be used jointly by the aircraft of the ROG and the “civil aviation of the Transdniestrian region of the Republic of Moldova ”. A second agreement, also reached on 21 October 1994, between the Moldovan and Russian Ministers of Defence (“the second agreement”) governed the use of Tiraspol airport. It provided, for example, that flights to Tiraspol airport were to be made in accordance with the “Provisional rules on the joint dispersed aviation of the military formations of the Russian Federation and the civil aviation of the Transdniestrian region of the Republic of Moldova”, in coordination with Moldova's State civil aviation authority and the Ministry of Defence of the Russian Federation (see paragraph 297 below).
115. On 9 November 1994 the Moldovan Government adopted the decision to implement the agreement concerning the withdrawal of the Russian army from Moldovan territory. On a date which has not been specified, the Government of the Russian Federation decided to submit this agreement for ratification by the Duma. On 17 November 1998, as the first agreement of 21 October 1994 had still not been ratified by the Duma, the Minister for Foreign Affairs of the Russian Federation asked the Duma to remove the matter from its order of business, on the ground that “any decision by the Ministry to reconsider this issue will depend on the evolution of relations with the Republic of Moldova and the Transdniestrian region and on a political settlement in the area”. In January 1999 the agreement was removed from the Duma's order of business. It has still not come into force.
The second agreement was approved by the Moldovan Government alone, on 9 November 1994.
116. The Moldovan Government emphasised that the words “civil aviation of the Transdniestrian region of the Republic of Moldova ”, contained in the agreements with the Russian Federation, must be interpreted as a reference to the constitutional local authorities of Moldova answerable to the central authorities, which did not apply to the Transdniestrian separatist regime.
The Russian Government submitted that these words meant the present local authorities, which were seen as a mere business partner. They maintained that this did not amount in any way to official or political recognition of the “ MRT ”.
117. The Court notes, firstly, that neither of the agreements of 21 October 1994 has come into force, not having been ratified by Russia.
It further notes that, according to the witness evidence of Mr Sergeyev, the commander of the ROG, Tiraspol airport is used as a free space by both the Russian military forces and the Transdniestrian separatists. The airspace is monitored by Moldovan or Ukrainian air-traffic controllers, depending on whether the territory over which the flight path crosses is Ukrainian or Moldovan. It also appears that Russian aircraft cannot take off from or land at Tiraspol airport without the authorisation of the relevant Moldovan authorities.
Flight security at Tiraspol airport is controlled by the Russian forces as regards Russian aircraft taking off, landing or parked on the ground, and by the Transdniestrian separatists as regards their aircraft. Neither the ROG authorities nor the Russian peacekeeping forces interfere with the way in which the Transdniestrians use Tiraspol airport. For their part, the Transdniestrian separatists do not interfere with the way in which the Russian forces use it (see Annex : General Sergeyev, § 340).
118. It appears from a study by Mr Iurie Pintea, “The military aspect of a settlement of the conflict in the eastern region of the Republic of Moldova ” (published by the Moldovan Public Policy Institute in August 2001 and submitted to the Court by the applicants), that “ MRT ” military formations have taken over the control tower and the technical installations of Tiraspol airport, in breach of the agreement of 21 October 1994, while the ROG part of the airport is allegedly used for purposes other than those mentioned in the agreement, for example for visits to Transdniestria by Russian politicians and for arms sales transactions.
The other parties did not comment on the above information.
119. Article 13 of the first agreement provides that all accommodation, barracks, vehicle parks, shooting ranges and fixed machine tools, stores and the tools they contain left unused after the withdrawal of the military formations of the Russian Federation are to be transferred for management “to the organs of the local public administrative authorities of the Republic of Moldova” in the quantity existing de facto. It also provides that the arrangements for the transfer or sale of the immovable property assets of the Russian military are to be determined in an agreement to be reached for that purpose between the parties'governments.
120. According to Article 17 of the agreement, with a view to ensuring the withdrawal of the military formations of the Russian Federation from the territory of the Republic of Moldova within the time-limit and their effective deployment in their new stations in the territory of the Russian Federation, the Republic of Moldova is required to contribute a portion of the costs for the construction inside the territory of the Russian Federation of the premises needed for their installation.
121. In its Opinion No. 193 of 1 996 on the accession of the Russian Federation to the Council of Europe, the Parliamentary Assembly of the Council of Europe noted the intention expressed by the Russian Federation “to ratify, within six months from the time of accession, the agreement of 21 October 1994 between the Russian and Moldovan Governments, and to continue the withdrawal of the 14 th Army and its equipment from the territory of Moldova within a time-limit of three years from the date of signature of the agreement”.
122. In a report dated 30 August 1996, the principal military prosecutor of the Procurator General's Office of the Russian Federation, Lieutenant-General G.N. Nosov, noted that irregularities and illegal acts had been committed within the ROG in relation to the management of military equipment. In particular, he noted the lack of supervision, which encouraged abuses and theft, failure to comply with decisions concerning the transfer free of charge to the Transdniestrian leaders of a number of motor vehicles taken out of service, the communication to those leaders of an inventory of military engineers'equipment in the ROG's stores, which had prompted them to demand an increase in the quantities of goods transferred, and the unauthorised transfer to the “ MRT ” of several hundred pieces of technical equipment and several thousand tonnes of other equipment.
Consequently, the principal military prosecutor asked the Minister of Defence of the Russian Federation to take additional measures to put an end to the breaches of the law noted within the ROG, to consider whether to bring disciplinary proceedings against Lieutenant-General E. and Major-General D. for failure to maintain effective control and dereliction of duty, and to inform him of the results.
123. On 20 March 1998, among other documents concerning a settlement of the situation in Transdniestria, an agreement on questions concerning the military assets of the 14 th Army (see paragraph 299 below) was signed in Odessa ( Ukraine ). The signatories were Mr Chernomyrdin, on behalf 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 some other mechanical process, was to be completed by 31 December 2001, subject, among other conditions, to authorisation by the authorities of the Republic of Moldova, “particularly of the region of Transdniestria”.
The withdrawal (transfer and decommissioning) of surplus ammunition and other ROG equipment was planned to take place by 31 December 2002 at the latest. The withdrawal of the ROG's standard - issue equipment and personnel not forming part of the peacekeeping forces was to be completed by 31 December 2002, on condition that the process of withdrawing ammunition and other equipment to Russia had been completed by then, that other equipment was transferred or decommissioned, and that Moldova discharged its obligations arising under Article 17 of the agreement of 21 October 1994.
(b) After ratification of the Convention by the Russian Federation
124. In their declaration at the Istanbul summit of 19 November 1999, the heads of State and government of the OSCE States indicated that they were expecting “ an early, orderly and complete withdrawal of Russian troops from Moldova ” and welcomed the commitment by the Russian Federation to complete withdrawal of its forces from Moldovan territory by the end of 2002. Lastly, they pointed out that an international assessment mission was ready to be dispatched without delay to explore removal and destruction of Russian ammunition and armaments.
125. In observations submitted in 1999 to the Parliamentary Assembly of the Council of Europe, the Moldovan Government asserted that on that date the official figure put forward by the Russian authorities for the quantity of ROG arms and ammunition stocked in Transdniestria was 42,000 tonnes, but that it had not been possible to verify that figure, since both the Russian authorities and the Transdniestrian separatists had refused to countenance an international assessment mission.
The Moldovan authorities drew attention to the fact that any withdrawal of ROG personnel not accompanied by removal of the ROG's enormous weapons stocks would increase the risk that Transdniestrian separatists would get their hands on these weapons.
126. A number of trainloads of equipment belonging to the ROG were moved out between 1999 and 2002.
127. On 15 June 2001 the Russian Federation and Transdniestria signed a protocol concerning joint work with a view to using the weapons, military technology and ammunition.
128. On 19 November 2001 the Russian Government submitted to the Court a document showing that in October 2001 the Russian Federation and the “ MRT ” signed an 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 in its debt for gas imported from the Russian Federation, and the transfer to it by the ROG, in the course of their withdrawal, of part of their equipment capable of being put to civilian use.
129. According to a document submitted to the Court in November 2002 by the Moldovan Government, the volume of high-tech weaponry, ammunition and military equipment belonging to the ROG which had been withdrawn by November 2002 from the territory of the Republic of Moldova by virtue of the agreement of 21 October 1994 represented only 15% of the total volume declared in 1994 as being stationed in Moldovan territory.
130. According to an OSCE press release, 29 railway wagons carrying bridge-building equipment and field kitchens were moved out 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 Transdniestrian authorities were 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 ROG lorries to the Transdniestrians.
131. In June 2001, according to information supplied to the Court by the Russian Government, the ROG still had some 2,200 troops in Transdniestria. In his witness evidence, General Sergeyev asserted that in 2002 the ROG's numbers had shrunk to just under 1,500 troops (see Annex, § 338).
The Court has not received any precise information about the quantity of arms and ammunition stocked by the ROG in Transdniestria. According to the applicants and the witness evidence taken by the Court's delegates (see Annex : Mr Snegur, § 235), in 2003 the ROG had at least 20 0 ,000 tonnes of military equipment and ammunition there, mainly kept at Kolbasna.
According to information supplied by the Russian Government in June 2001 and not contested by the other parties, the ROG had in addition the following equipment: 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, 9 helicopters and 1,648 vehicles of various kinds. In his witness evidence, General Sergeyev asserted that 108 battle tanks had been destroyed during 2002 and that the destruction of anti-aircraft defence systems was in progress (see Annex, § 341).
2. Relations between the ROG and the “ MRT ”
132. ROG personnel, and the military prosecutors and judges attached to the ROG, did not receive any specific instructions regarding their relations with the Transdniestrian authorities (see Annex : Lieutenant-Colonel Shamayev, § 374).
133. ROG personnel can travel freely in Transdniestrian territory. Before moving troops or equipment, the ROG informs the Transdniestrian authorities. Sometimes these movements occasion incidents, such as occurred with the seizure by the Transdniestrians of three ROG vehicles (see Annex : Lieutenant-Colonel Radzaevichus, § 363; and Lieutenant-Colonel Shamayev, § 376). In such cases, and in the absence of instructions, the ROG authorities try to negotiate directly with the Transdniestrian authorities. According to the legal provisions in force in the Russian Federation, the ROG's prosecuting authorities are not empowered to refer cases directly to the Moldovan authorities, which have jurisdiction in Transdniestrian territory. Any theft or other criminal act committed by a Transdniestrian civilian against the ROG must be reported by the ROG authorities to the relevant authorities of the Russian Federation, since only they can refer the matter to the Moldovan authorities.
In practice, criminal acts of this type are investigated by the Transdniestrian authorities.
134. ROG investigators are empowered to investigate criminal acts committed by ROG personnel or with their participation, but only in relation to the individual soldiers implicated. However, to date, no case of this type has been reported (see Annex : Lieutenant-Colonel Levitskiy, § 371; and Mr Timoshenko, § 379).
135. According to the documents submitted to the Court by the Russian Government, ROG equipment and installations lending themselves to civilian use have been transferred to the “ MRT ”. For example, the building in which the applicants were detained in 1992 by the 14 th Army was transferred in 1998 to the Transdniestrian separatists. According to the witness evidence given by Mr Timoshenko, the building is now used by the “ MRT prosecution service” (see Annex, § 380).
136. According to the study by Mr Iurie Pintea (see paragraph 1 18 above), the Kolbasna military store was divided in 1994 into two parts, one of which was assigned to the “ MRT ”, which installed an ammunition store there for its army. He reported that, at the time when his study was published in 2001, security at the “ MRT ” store was provided by a 300 ‑ strong motorised infantry brigade of the “ MRT ” army equipped with armoured transport vehicles, anti-tank weapons and mine throwers, plus an anti-aircraft battery, which also controlled movement into and out of the stores as a whole. Security at the ROG store was provided by ROG personnel. For movement out of the part of the stores which belongs to the ROG, a Transdniestrian customs post has been specially installed. Security and movement within the stores as a whole could not be monitored from the outside.
C. Economic, political and other relations between the Russian Federation and Transdniestria
1. Before ratification of the Convention by the Russian Federation, on 5 May 1998
137. From undated statements to the press, submitted to the Court by the applicants and not contested by the other parties, it appears that the Vice ‑ President of the Russian Federation at the time, Mr Rutskoy, recognised the “legitimacy of the entity created on the left bank of the Dniester ”.
138. In an undated television appearance reported by the press, as submitted to the Court by the applicants and not contested by the other parties, the President of the Russian Federation, Mr Yeltsin, said: “ Russia has lent, is lending and will continue to lend its economic and political support to the Transdniestrian region. ”
139. After the end of the conflict, senior officers of the 14 th Army participated in public life in Transdniestria. In particular, soldiers of the 14 th Army took part in the elections in Transdniestria, military parades of the Transdniestrian forces and other public events. The documents in the file, and the evidence of several witnesses who agreed on this point and were not contradicted by the other parties, show that on 11 September 1993 General Lebed, the ROG's commander, was elected a member of the “Supreme Soviet of the MRT ” (see Annex : Mr Ilaşcu, § 26; Mr Urîtu, § 72; and X, § 220).
140. The applicants alleged that a consulate of the Russian Federation had been opened in Transdniestrian territory, in the territory of the ROG, without the agreement of the Moldovan authorities and that various activities including polling took place there.
The Russian Government denied the existence of a Russian consulate in Transdniestrian territory.
On 27 February 2004 the Moldovan Ministry of Foreign Affairs sent a note to the embassy of the Russian Federation in Chişinău in which the Moldovan authorities expressed their regret about the fact that the authorities of the Russian Federation had opened seventeen fixed polling stations in Transdniestrian territory for the presidential election of 17 March 2004 without the agreement of the Moldovan authorities and that in acting thus the Russian authorities had presented them with a fait accompli, creating an undesirable precedent. The note went on to say that the only places in which the opening of polling stations was desirable were the ROG headquarters in Tiraspol, the headquarters of the peacekeeping forces in Tighina ( Bender ), the Russian embassy in Chişinău and mobile polling stations.
141. The Court notes that, apart from the applicants'assertions, there is no evidence of the existence of a Russian consulate in Tiraspol carrying out ordinary consular functions and open to all Transdniestrians who have or wish to acquire Russian nationality. In addition, none of the witnesses who gave evidence in Moldova was able to confirm such allegations. In the absence of corroboration, the Court cannot consider it to have been established beyond a reasonable doubt that a Russian consulate is permanently open in Tiraspol for all Transdniestrians who have or wish to acquire Russian nationality.
On the other hand, the Court takes it as established that fixed consular posts, operating as polling stations, were opened by the Russian authorities in Transdniestrian territory without the agreement of the Moldovan authorities.
With regard to the press articles submitted by the applicants mentioning the existence of a consular office of the Russian Federation in the territory of the ROG, the Court notes that these too are uncorroborated. However, the Russian Government have not denied the existence of such an office. The Court considers that in view of the special situation of the ROG, stationed in Transdniestrian territory, it is plausible that for practical reasons a consular office should be opened in the territory of the ROG to enable Russian soldiers to settle various problems normally dealt with by consulates.
142. The applicants asserted that on 12 March 1992 the Russian Central Bank opened a number of accounts for the Transdniestrian Bank. The other parties did not challenge the veracity of that information.
143. In Resolution no. 1334 IGD of 17 November 1995, the Duma of the Russian Federation declared Transdniestria a “ zone of special strategic interest for Russia ”.
144. Eminent politicians and representatives of the Russian Federation have confirmed on various occasions the support it has lent to Transdniestria. Representatives of the Duma and other prominent figures of the Russian Federation have travelled to Transdniestria and taken part in official events there.
For their part, representatives of the “ MRT ” regime have travelled to Moscow on official visits, notably to the Duma.
145. The applicants also submitted that, several years after the conflict, the support given by the Russian authorities to the creation of the Transdniestrian regime was publicly confirmed in a television programme broadcast on an unspecified date on the Russian channel TV-Centre in which Mr Voronin, Mr Smirnov and Mr Khasbulatov were interviewed. During the programme, Mr Khasbulatov, who was President of the Russian parliament from 1991 to 1993, said that when it became clear that Moldova was going to leave the sphere of Russian influence an “administrative territorial enclave” was created there. During the same programme, Mr Voronin, the President of Moldova, said that the former Russian President, Mr Yeltsin, had supported Mr Smirnov in order to use him against the democratic regime in Chişinău.
The other parties did not contest these facts.
146. On 19 May 1994 Lieutenant-General Iakovlev, the former commander of the 14 th Army and former head of the “Defence and Security Department of the MRT ”, became a citizen of the Russian Federation.
147. In 1997 Mr Mărăcuţă, the “President of the Supreme Soviet of the MRT ”, was granted Russian nationality.
2. After ratification of the Convention by the Russian Federation
148. In 1999 Mr Caraman, one of the “ MRT ” leaders, also acquired Russian nationality.
149. Mr Smirnov was granted Russian nationality in 1997 ( according to the Russian Government ) or 1999 ( according to the applicants ).
150. According to the applicants, who were not contradicted on this point by the other parties, the arms industry is one of the pillars of the Transdniestrian economy, which is directly supported by Russian firms involved in arms manufacture in Transdniestria.
According to the study by Iurie Pintea (see paragraph 11 8 above), from 1993 onwards Transdniestrian arms firms began to specialise in the production of high-tech weapons, with the help of funds and orders from various Russian companies, including the Russian arms producer and trader Росвооружение. Russian companies provide Transdniestrian firms with the technology and equipment they need to manufacture modern weaponry and military equipment. Transdniestrian firms also produce components for Russian arms manufacturers. For example, the Elektrommash company receives the components for the silenced pistols it produces from the Russian Federation and delivers components for various weapons systems assembled in the Russian Federation.
151. Citing Mr Pintea's study, the applicants submitted that, under the cover of “withdrawal”, the ROG was supplying Transdniestrian firms with parts and tools for military use. They alleged that the Râbniţa engineering works, which produces 82 mm mortars, regularly received truckloads of mortars and howitzers from the ROG stores at Kolbasna, passed off as “destruction of untransportable ammunition ”.
152. In addition, there was interdependence between Transdniestrian economic and other interests and the ROG on account of the fact that the ROG employs huge numbers of the inhabitants of Transdniestria.
According to the same study by Mr Pintea, nearly 70% of the command structure of the ROG unit stationed in Kolbasna (including the ammunition store) was made up of inhabitants of Râbniţa and Kolbasna, while 100% of the technical staff of the Kolbasna stores (head storekeepers, technicians and mechanics) were inhabitants of the region.
In all, 50% of the ROG's officers and 80% of its non-commissioned officers were inhabitants of the “ MRT ”.
The other parties did not contest this information.
153. There is judicial cooperation for the transfer of prisoners between the Russian Federation and Transdniestria, without going through the Moldovan authorities. Russian prisoners detained in Transdniestria have been transferred thanks to such cooperation to a prison in the Russian Federation (see Annex : Colonel Golovachev, § 136; and Mr Sereda, § 423 ).
154. The applicants asserted, citing press articles, that visits between officials of the Russian Federation and the “ MRT ” continued to take place. On 16 February 1999 the newspaper Transdniestria reported a visit by a delegation of the “Supreme Soviet of the MRT ”, including Mr Mărăcuţă, Mr Caraman and Mr Antiufeyev, to the Duma of the Russian Federation. On 1 June 2001 an eight-member delegation from the Duma went to Tiraspol and stayed there until 4 June 2001.
In addition, between 28 August and 2 September 2001, members of the Duma took part in the celebrations to mark the 10 th anniversary of the “ MRT ”'s declaration of independence.
155. “ MRT ” leaders have been awarded official distinctions by various institutions of the Russian Federation and are received in honour by its State organs. It appears from the documents filed by the applicants that Mr Smirnov was invited to Moscow by Moscow State University.
156. The Russian Federation has direct relations with the “ MRT ” regarding its gas exports.
As shown by a telegram sent on 17 February 2000 by the Chairman of the Russian group Gazprom to the Deputy Prime Minister of Moldova, contracts for supplying gas to Moldova do not apply to Transdniestria, to which gas is delivered separately on more favourable financial terms than those granted to the rest of the Republic of Moldova (see Annex : Y, § 261; and Mr Sangheli, § 268).
157. Transdniestria receives electricity directly from the Russian Federation.
158. Products manufactured in Transdniestria are exported to the Russian market, some of them being passed off as Russian products (see Annex : Mr Stratan, § 333).
159. The ROG buys certain products which it needs to supply its troops directly from the Transdniestrian market (see Annex : General Sergeyev, § 347).
160. Russian companies have taken part in privatisations in Transdniestria. The documents submitted by the applicants show that the Russian firm Iterra bought the largest undertaking in Transdniestria, the Râbniţa engineering works, despite the opposition of the Moldovan authorities.
161. Moreover, in January 2002 the Moldovan Government submitted to the Court a video cassette containing a recording of a Russian television programme about Russo-Moldovan relations and the Transdniestrian regime. The Russian commentator mentioned in the first place the treaty of friendship recently signed by the Russian Federation and the Republic of Moldova, in which Moscow and Chişinău condemned “separatism in all its forms” and undertook “ not to lend any support to separatist movements ”. According to the journalist, the treaty unambiguously confirmed the Russian Federation's support for Moldova in the Transdniestrian conflict. The rest of the item looked at various aspects of the Transdniestrian economy, presented as being wholly under the control of the Smirnov family, stating that its main source of income was the manufacture and export of arms to countries such as Afghanistan, Pakistan, Iraq or Chechnya. The programme closed with the information that the Transdniestrian authorities had shut down the broadcast over the territory of the “ MRT ”, citing poor weather conditions as the excuse.
D. Moldovan-Transdniestrian relations
1. Before ratification of the Convention by Moldova, on 12 September 1997
162. The Moldovan authorities have never officially recognised the organs of the “ MRT ” as a State entity.
163. After the agreement of 21 July 1992, the two parties established relations with a view to settling the conflict.
Contact was established and maintained mainly through negotiation committees and concerned the political question of Transdniestria's status, and settlement of various aspects of everyday life (economic, social, etc. ).
164. According to the concordant statements of several witnesses (see Annex : Mr Urîtu, § 66; Mr Postovan, § 182; Z, § 272; Mr Plugaru, § 286; and Mr Obroc, § 430), the first meetings between Moldova and Transdniestria related to exchanges of prisoners captured on either side during the 1992 fighting. These exchanges generally concerned groups of prisoners.
165. According to the concordant statements of several witnesses (see Annex : Mr Urîtu, § 67; Mr Snegur, § 239 : and Mr Sturza, § 311), after the ceasefire of 21 July 1992, private individuals and official delegations involved in the negotiations were able to travel to Transdniestria. There were sometimes incidents, when Transdniestrian guards refused access to Transdniestria.
166. As private individuals, doctors have fairly free access to Transdniestria, whether for consultations or for professional conferences (see Annex : Mr Ţîbîrnă, § 84; and Mr Leşanu, § 85).
167. From 1993 onwards, the Moldovan authorities began to institute criminal proceedings against certain Transdniestrian officials accused of falsely claiming the status of State officers (see paragraphs 22 1 and 2 30 below).
168. Nevertheless, persons who had acted as senior officials of the “ MRT ” were able to return to Moldova and subsequently take high office. For example, Mr Sidorov, who had been “Minister of Justice of the MRT ” in 1991, held a number of senior State offices after his return from Transdniestria; he was a member of the Moldovan parliament from 1994 to 1998, Moldovan Ombudsman from 1998 to 2001 and member of the Moldovan parliament and Chairman of the Human Rights and Minorities Committee from 2001 (see Annex : Mr Sidorov, §§ 437- 38).
169. On 7 February 1996, in the presence of OSCE mediators, Russia and Ukraine, the Moldovan authorities adopted a protocol providing for the removal of the customs posts belonging to Transdniestria.
2. After ratification of the Convention by Moldova
170. Movement of persons between Transdniestria and the rest of Moldova after 1997 took place under the same conditions as before, with the Transdniestrian authorities deciding whether to permit passage in a discretionary fashion. When official delegations or Moldovan dignitaries wish to enter Transdniestria, prior contact for the purpose of seeking authorisation is necessary, even though such authorisation may be revoked at any time (see Annex : Mr Sereda, § 418). For example, the Moldovan Government said that in 2003, as a reprisal against a decision taken in February 2003 by the Council of the European Union prohibiting Igor Smirnov and sixteen other Transdniestrian leaders from entering the European Union for one year, the Transdniestrian authorities declared certain senior Moldovan leaders, including the President of Moldova, the President of the Moldovan parliament, the Prime Minister, the Minister of Justice and the Minister for Foreign Affairs, personae non gratae.
171. The applicants alleged that Transdniestrian leaders, including Mr Smirnov, Mr Mărăcuţă and Mr Caraman, also had Moldovan nationality and were in possession of Moldovan diplomatic passports. In addition, they asserted that the Moldovan Government had awarded them official honours.
The Moldovan Government said that the Transdniestrian leaders did not possess Moldovan nationality as they had never requested Moldovan identity papers.
The Court notes that the witness questioned by the delegates on this subject denied that any Moldovan identity documents whatsoever had been issued to Mr Smirnov, Mr Mărăcuţă and Mr Caraman (see Annex : Mr Molojen, § 396). In the absence of corroboration of the applicants'allegations, the Court considers that it has not been established beyond a reasonable doubt that the Moldovan authorities issued passports to Transdniestrian leaders.
172. A number of senior Moldovan officials, including Mr Sturza, the Minister of Justice, Deputy Attorney- General and, since 2000, Chairman of the Committee for Negotiations with Transdniestria, have continued to visit Tiraspol to meet Transdniestrian politicians, including Mr Smirnov, Mr Mărăcuţă, the “Attorney- General of the MRT ” and the “President of the Supreme Court of the MRT ”. The main subjects discussed at these meetings have been the applicants'situation, their release, and negotiations about the future status of Transdniestria, including official decisions taken by Transdniestrian local authorities (see Annex : Mr Sturza, § 312).
173. On 16 May 2000 the President of the Moldovan parliament, Mr Diacov, visited Mr Ilaşcu in his prison cell in Tiraspol. On the same day, the Moldovan President, Mr Lucinschi, visited Tiraspol.
174. On 16 May 2001 the President of Moldova, Mr Voronin, and the Transdniestrian leader, Mr Smirnov, signed two agreements – one about mutual recognition of documents issued by the Moldovan and Transdniestrian authorities, and the other concerning measures to attract and protect foreign investment.
175. In the field of economic cooperation, the applicants asserted that the Moldovan authorities issued certificates of origin for products from Transdniestria.
The Moldovan Government did not comment on this allegation.
176. As regards the alleged practice of the Moldovan authorities of issuing certificates of origin to goods exported from Transdniestria, as submitted by the applicants and by the Russian Government, the Court notes that this allegation was not confirmed by any witness. On the contrary, Mr Stratan, the Director of Customs, denied the existence of such a practice (see Annex, § 327).
In these circumstances, in the absence of corroboration of the applicants'assertions, the Court cannot regard it as established beyond a reasonable doubt that the Moldovan authorities are conducting a policy of supporting the Transdniestrian economy through such export certificates.
177. In addition to the cooperation introduced as a result of the agreement reached by the President of Moldova and the “President of the MRT ”, as established by the witness evidence taken by the Court's delegates, there are more or less de facto relations between the Moldovan and Transdniestrian authorities in other fields. For example, the Transdniestrian Ministry of Justice, particularly the prisons service, and the Moldovan Ministry of Justice are in contact (see Annex : Lieutenant-Colonel Samsonov, § 172). There are also unofficial relations between the Moldovan and Transdniestrian authorities on judicial and security matters, in the interests of crime prevention. Although there is no cooperation agreement, Moldovan prosecutors or officers investigating criminal cases sometimes ring their “colleagues” in Transdniestria, particularly to obtain information and summon witnesses (see Annex : Mr Postovan, § 190; and Mr Catană, § 206).
178. There is a single telephone system for the whole of Moldova, including Transdniestria. A telephone call between Chişinău and Tiraspol is considered a national call (see Annex : Mr Molojen, § 398; and Mr Sidorov, § 454).
179. The Moldovan Government's Information Department issues identity documents (identity cards) to all persons resident in Moldova, including those in Transdniestria (see Annex : Mr Molojen, § 399).
180. In 2001, under agreements with the World Trade Organisation, the Moldovan authorities set up a chain of mixed Moldovan-Ukrainian customs posts along the border with Ukraine and introduced new customs stamps not available to the Transdniestrian authorities. The Court has not been informed whether the Moldovan-Ukrainian customs posts are still operational.
181. In response to the measures mentioned in the previous paragraph, the Transdniestrian authorities informed the Moldovan authorities, in a letter of 18 September 2001, of the unilateral suspension of negotiations on the status of Transdniestria, threatening to cut off gas and electricity supplies to Moldova passing through Transdniestria.
182. The Moldovan Government asserted that, during an incident in 2001 at the railway junction of Tighina (Bender), the Transdniestrian authorities had blocked 500 wagons containing humanitarian gifts for Moldovan children and elderly persons and shipments of petroleum and other goods from the European Union on their way to Moldovan firms.
183. In a declaration made public on 6 February 2002, the OSCE mission in Moldova criticised the actions of the Transdniestrian authorities, who on 16 January 2002 had started to prevent the OSCE representatives from entering the territory controlled by the “ MRT ”, in breach of the agreement of 26 August 1993 between the OSCE and Mr Smirnov.
184. It appears from a document submitted to the Court by the Moldovan Government on 15 March 2002, that by Order no. 40 of 7 March 2002 the “Minister of Security of the MRT ” refused access to the territory of the “ MRT ” to the representatives of the Ministries of Defence and Internal Affairs, the Information and Security Service and other Moldovan military bodies.
185. Lastly, the national football championship also includes Transdniestrian teams, and matches played by the Moldovan football team, including international games, are often staged in Tiraspol, as was the case for a match against the Netherlands in April 2003 (see Annex : Mr Sidorov, § 454).
IV. THE PARTICULAR CIRCUMSTANCES OF THE CASE
186. The Court summarises below the facts connected with the applicants'arrest, pre-trial detention, conviction and conditions of detention, as alleged by the applicants and confirmed by the documentary evidence and the witnesses'statements.
It further notes that, in their written observations of 24 October 2000, the Moldovan Government endorsed the applicants'account of the circumstances in which they had been arrested, convicted and detained. In the same observations they indicated that the applicants had certainly been arrested without a warrant, that they had remained for two months on premises belonging to the 14 th Army and that the searches and seizures had also been carried out without a warrant.
The Moldovan Government submitted that the applicants'allegations about their conditions of detention were very plausible.
187. The Russian Government indicated that they had had no knowledge of the circumstances of the applicants'arrest, conviction and conditions of detention.
A. The applicants'arrest, pre-trial detention and conviction
188. It appears from the evidence given by the applicants, their wives and Mr Urîtu, corroborated in general by the statement of Mr Timoshenko, that the applicants were arrested at their homes in Tiraspol between 2 and 4 June 1992, in the early hours of the morning. They were arrested by a number of persons, some of whom wore uniforms bearing the insignia of the 14 th Army of the USSR, while others wore camouflage gear without distinguishing marks.
The details of their arrest are as follows.
189. The second applicant, Alexandru Leşco, was arrested on 2 June 1992 at 2.45 a.m. The next day his home was searched in the presence of his neighbours.
190. The first applicant, Ilie Ilaşcu, who at the material time was the local leader of the Popular Front (a party represented in the Moldovan parliament ) and was campaigning for the unification of Moldova with Romania, was arrested on 2 June 1992, at about 4. 30 a.m., when ten to twelve persons armed with automatic pistols forcibly entered his home in Tiraspol, where they carried out a search and seized certain objects. These included a pistol which, according to the applicant, had been placed in his house by the persons searching the premises. The applicant alleged that his arrest and the search were carried out without a warrant. He had been informed that he was being arrested because, as a member of the Popular Front, he presented a threat to the stability of the “ MRT ”, which was at war with Moldova.
191. The third applicant, Andrei Ivanţoc, was arrested at his home on 2 June 1992 at 8 a. m. by several armed persons who struck him with the butts of their weapons and kicked him. According to the applicant, during the search which followed, several carpets, 50, 000 roubles and a “ handsome ” watch were confiscated.
192. The fourth applicant, Tudor Petrov-Popa, was arrested on 4 June 1992 at 6. 45 a.m. by two persons, one of whom was a police officer, Victor Gusan. At about 11 a.m., two public prosecutors, Mr Starojuk and Mr Glazyrin, searched the applicant's home in his absence.
193. In a 140 - page indictment drawn up by public prosecutor Starojuk, among others, the applicants were accused of anti-Soviet activities and of fighting by illegal means against the legitimate State of Transdniestria, under the direction of the Popular Front of Moldova and Romania. They were also accused of committing a number of offences punishable, according to the indictment, in some cases by the Criminal Code of the Republic of Moldova and in others by that of the Moldovan Soviet Socialist Republic. The offences of which the applicants were accused included the murder of two Transdniestrians, Mr Gusar and Mr Ostapenko ( see also paragraph 22 5 below ).
194. As evidenced by the concordant statements of the applicants and other witnesses ( see Annex : Mr Urîtu, §§ 55-56 and 60-61; Mrs Leşco, §§ 30-31; and Mrs Ivanţoc, §§ 38 and 41), the applicants were first taken to Tiraspol police headquarters, which were probably also the premises of the “Ministry of Security of the MRT ”, where they were interrogated and subjected to ill-treatment for several days. Their interrogators included Vladimir Gorbov, “Deputy Minister of Security”, Vladimir Antiufeyev (or Chevtsov), the “Minister ”, and a person named Gushan. Some of the guards and investigators wore uniforms which were similar, if not identical, to those used by the Soviet personnel of the 14 th Army. During the first days of their detention at police headquarters, the applicants were beaten regularly and severely, and received practically nothing to eat or drink. The interrogations often took place at night and during the daytime they were not permitted to rest.
195. The first applicant said that he had been taken immediately after his arrest into the office of the “Minister of Security of the MRT ”, where there were five other persons, introduced to him as colonels in the Russian counter-espionage service. They asked him, in exchange for his release, to place at the service of Transdniestria the skills he had acquired during his military service with the USSR special troops and pass himself off as an agent working for the Romanian secret service. The applicant alleged that, when he turned down that proposal, he was told that his only alternative was the cemetery.
2. Detention of the first three applicants on the premises of the 14 th Army
196. A few days after their arrest, the first three applicants were taken separately to the 14 th Army garrison headquarters ( komendatura ) in Suvorov Street, Tiraspol, in vehicles bearing Russian markings.
The applicants submitted that during their detention in the territory of the 14 th Army, they were guarded by soldiers of that army and that while they were there, Transdniestrian police officers came to see them in their cells. They also alleged that during this period they were tortured by 14 th Army personnel.
The Moldovan Government said that, in the light of the statements made by the Moldovan witnesses and Mr Timoshenko to the delegates of the Court, it was apparent that 14 th Army personnel had taken part in the applicants'arrest and interrogation.
In their observations of 1 September 2003, the Russian Government repeated their initial position, namely that the Court did not have jurisdiction ratione temporis to examine events which had taken place in 1992.
On the merits, they nevertheless acknowledged that the applicants had been detained on the premises of the 14 th Army, but asserted that this detention had been of very short duration and that in any event it had been illegal. The Government said that military prosecutor Timoshenko had put a stop to this illegal detention as soon as he had been informed of it. They did not comment on the question whether Russian soldiers had taken part in the applicants'initial arrest.
They submitted that, apart from providing cells for the applicants'detention, the 14 th Army personnel had done nothing illegal. In particular, they had not guarded the cells in which the applicants were detained. In that connection, the Government said that the applicants could not have seen Russian insignia on the warders'uniforms because the new Russian insignia, which replaced those of the USSR, had only been introduced by Order no. 2555, issued on 28 July 1994 by the Minister of Defence of the Russian Federation.
The Russian Government further submitted that Colonel Gusarov ( see paragraph 27 0 below ) had not served in the Russian military formations stationed in Transdniestrian territory, but had performed his service at the “Ministry of the Interior of the MRT ”.
197. The Court notes that the first three applicants alleged that they had been detained for two months at 14 th Army garrison headquarters. ( see Annex : Mr Ilaşcu, §§ 2, 4 and 11; Mr Urîtu, §§ 55-56; Mr Ivanţoc, § § 94 ‑ 95; Mr Leşco, § § 114 and 117; Mr Petrov-Popa, § 124; Mrs Leşco, §§ 33-34; Mrs Ivanţoc, § 39; and Mrs Petrov-Popa, § 48).
On that subject, the Court notes that Mr Timoshenko asserted in his witness evidence ( see Annex, § 381) that the applicants had stayed on the premises of the 14 th Army for a very short space of time, although he was unable to say exactly how long.
Without casting a general doubt on the testimony of Mr Timoshenko, which it considers to be credible, the Court considers that it contains a number of details, including those concerning the length of time the applicants spent on the premises of the 14 th Army, which are confused, and moreover refuted by other testimony.
198. The Tiraspol garrison headquarters were commanded by Mikhail Bergman. The applicants were detained there one to a cell. A Mr Godiac, arrested at the same time as the applicants, was detained in the same building. While being interrogated or when visited in their cells, the applicants saw Mr Gorbov and officers of whom some wore the uniform of the 14 th Army. They were interrogated especially at night, the interrogations being accompanied by ill-treatment. They were also beaten at other times. The applicants were struck regularly and severely by soldiers in 14 th Army uniforms. Transdniestrian police officers sometimes participated in inflicting ill-treatment on the applicants.
Ilie Ilaşcu was subjected to four mock executions. The first time, his death warrant was read out to him, whereas on the other occasions he was taken out blindfolded into a field where the warders fired at him with blank cartridges until he fainted.
The second applicant was threatened with rape. After a month, as a result of the blows he had received, the third applicant was admitted to a psychiatric hospital, where he remained for a month ( see Annex : Mr Ivanţoc, § 97).
199. The cells had no toilets, no water and no natural light. A light bulb in each cell was lit permanently. The fold-away beds fixed to the wall were lowered at midnight and put back up at five in the morning.
The applicants had only fifteen minutes per day for outdoor exercise, in an enclosed area. During their detention at the 14 th Army garrison headquarters, they were not able to wash themselves or change their clothes.
The toilets were along the corridor, and the prisoners were taken there only once a day by guards accompanied by an Alsatian dog. They had only forty-five seconds in which to relieve themselves, knowing that the dog would be set on them if they took longer. Since they were taken to the lavatory only once a day under the conditions described above, the applicants had to relieve themselves in their cells ( see Annex : Mr Ivanţoc, § 95; Mr Leşco, § 115; Mrs Leşco, § 33; and Mrs Ivanţoc, § 40).
They were cut off from the outside world. Their families were not permitted to contact them or send them parcels. They were not able to send or receive mail and had no access to lawyers.
200. On 23 August 1992, when General Lebed took command of the 14 th Army, the persons detained at the headquarters of the army's Tiraspol garrison, including the three applicants, were transferred to Tiraspol police headquarters. The transfer was carried out by soldiers of the 14 th Army in 14 th Army vehicles ( see Annex : Mr Ilaşcu, § 11; Mr Urîtu, § 55; and Mrs Ivanţoc, § 39).
3. Detention in the remand centre of Tiraspol police headquarters and transfer to prison during the trial
201. The circumstances of the applicants'detention, as described in their written depositions and witness evidence, and in the corroborating evidence given by other witnesses ( see Annex : Mr Urîtu, §§ 56 and 60-61; Mrs Ivanţoc, § 41; and Mrs Leşco, §§ 30-31), are summarised below.
202. The first applicant remained in a cell at Tiraspol police headquarters for nearly six months, until April 1993, when his trial began.
203. The second applicant was transferred from the 14 th Army garrison headquarters to Tiraspol police headquarters, where he remained until April 1993, when his trial began.
204. The third applicant remained for one month at the 14 th Army garrison headquarters. He was then confined to a psychiatric hospital, where he remained for nearly a month. On his return from hospital, he was taken back to the 14 th Army garrison headquarters and immediately transferred to Tiraspol police headquarters, where he was detained until April 1993.
205. The fourth applicant was detained until the beginning of the trial at Tiraspol police headquarters.
206. In the remand centre at Tiraspol police headquarters, the interrogations took place at night. The applicants were regularly beaten there, especially during the month which followed their return from the 14 th Army garrison headquarters.
207. The cells had no natural light. During the first few weeks, they were not permitted to receive visits from their families or lawyers. Later, permission was granted on a discretionary basis for visits by their families and they began to receive parcels, albeit at irregular intervals. They were often unable to eat the food sent by their families because it had become spoiled during the searches carried out for security reasons. They were not permitted to receive or send mail, and were unable to speak to their lawyers.
208. During this period, the applicants were only rarely able to see a doctor, and when they had been subjected to ill-treatment the doctor's visit took place long afterwards.
Hallucinogenic drugs administered to Mr Ivanţoc gave him chronic migraines. During this period he was not treated for his headaches and his wife was not given permission to send him medicines.
209. Mr Ilaşcu was able to see his lawyer for the first time in September 1992, several months after his arrest.
210. On a date which has not been specified, the applicants were transferred to Tiraspol Prison in preparation for their trial. While detained pending trial, they were subjected to various forms of inhuman and degrading treatment: they were savagely beaten; Alsatian dogs were set on them; they were held in solitary confinement and fed false information about the political situation and their families'health as bait to induce them to accept a promise of their release if they signed confessions; lastly, they were threatened with execution.
211. Andrei Ivanţoc and Tudor Petrov-Popa were treated with psychotropic substances and as a result Mr Ivanţoc experienced mental disorders.
4. The applicants'trial and conviction
212. The applicants were brought before the “Supreme Court of the Moldavian Republic of Transdniestria”, which sat first in the functions room of the Kirov State company and later in the concert hall of the Tiraspol cultural centre. During the trial, which began on 21 April 1993 and ended on 9 December 1993, the only persons authorised to enter the courtroom were Moldovan nationals with proof of residence in Transdniestria. Armed police and soldiers were present in the hall and on the stage where the judges sat. The applicants appeared at their trial locked inside metal cages. Witnesses were able to attend the trial as they wished, without being required to leave the courtroom while the other witnesses were giving evidence. On numerous occasions during the trial, the applicants were permitted to speak to their lawyers only in the presence of armed police officers. The hearings took place in a tense atmosphere, with placards hostile to the accused displayed by the public. As evidenced by a photograph submitted to the Registry by the applicants, taken in the courtroom and published in a Moldovan newspaper, one of these placards was inscribed with the words “Bring the terrorists to account!” ( Teрpopиcтoв – к oтвeту! ).
213. The applicants were tried by a three-judge bench composed as follows: Mrs Ivanova, a former judge of the Supreme Court of Moldova, presiding; Mr Myazin, aged 28 at the time of the trial, who had worked for one year at the Moldovan Procurator General's Office before being appointed to the “Supreme Court of the MRT ”; and Mr Zenin.
214. The judgment records that Commandant Mikhail Bergman, an ROG officer, appeared as a witness. He told the court that the applicants had not been ill-treated by his subordinates while they were detained on the premises of the 14 th Army and that they had not made any complaints.
215. The court gave judgment on 9 December 1993.
216. It found the first applicant guilty of a number of offences defined in the Criminal Code of the Moldovan Soviet Socialist Republic, including incitement to commit an offence against national security ( Article 67), organisation of activities with the aim of committing extremely dangerous offences against the State ( Article 69), murdering a representative of the State with the aim of spreading terror ( Article 63), premeditated murder ( Article 88), unlawfully requisitioning means of transport ( Article 182), deliberate destruction of another's property ( Article 127) and illegal or unauthorised use of ammunition or explosive substances ( Article 227). It sentenced him to death and ordered the confiscation of his property.
217. The court found the second applicant guilty of murdering a representative of the State with the aim of spreading terror ( Article 63), deliberate destruction of another's property ( Article 127), and unauthorised use of ammunition or explosive substances ( Article 227 § 2); it sentenced him to twelve years'imprisonment in a hard labour camp and confiscation of his property.
218. The third applicant was found guilty of murdering a representative of the State with the aim of spreading terror ( Article 63), unauthorised use and theft of ammunition or explosive substances ( Articles 227 and 227-1 § 2), unlawfully requisitioning horse-drawn transport ( Article 182 § 3), deliberate destruction of another's property ( Article 127) and assault ( Article 96 § 2). He was sentenced to fifteen years'imprisonment in a hard labour camp and confiscation of his property.
219. The fourth applicant was found guilty of murdering a representative of the State with the aim of spreading terror ( Article 63), assault ( Article 96 § 2), unlawfully requisitioning horse-drawn transport ( Article 182 § 3), deliberate destruction of another's property ( Article 127), and unauthorised use and theft of ammunition or explosive substances ( Articles 227 and 227-1 § 2). He was sentenced to fifteen years'imprisonment and confiscation of his property.
B. Events subsequent to the applicants'conviction; Mr Ilaşcu's release
220. On 9 December 1993 the President of the Republic of Moldova declared that the applicants'conviction was unlawful, on the ground that it had been pronounced by an unconstitutional court.
221. On 28 December 1993 the Deputy Attorney - General of Moldova ordered a criminal investigation in respect of the “judges”, “prosecutors” and other persons involved in the prosecution and conviction of the applicants in Transdniestria, accusing them under Articles 190 and 192 of the Criminal Code of the Republic of Moldova of unlawful arrest.
222. On 3 February 1994 the Supreme Court of the Republic of Moldova examined of its own motion the judgment of 9 December 1993 of the “Supreme Court of the MRT ”, quashed it on the ground that the court which had rendered it was unconstitutional, and ordered the file to be referred to the Moldovan public prosecutor for a new investigation in accordance with Article 93 of the Code of Criminal Procedure. It appears from the written depositions, the information supplied by the Moldovan Government and the evidence given by the witnesses heard by the Court in Chişinău in March 2003, that the investigation ordered in the judgment of 3 February 1994 came to nothing ( see Annex : Mr Postovan, § 184; and Mr Rusu, § 302).
223. In addition, the Supreme Court of the Republic of Moldova set aside the warrant for the applicants'detention, ordered their release and asked the public prosecutor to look into the possibility of prosecuting the judges of the “so-called” Supreme Court of Transdniestria for deliberately rendering an illegal decision, an offence punishable under Articles 190 to 192 of the Criminal Code.
224. The authorities of the “ MRT ” did not respond to the judgment of 3 February 1994.
225. The Moldovan authorities had opened an investigation into the deaths of Mr Gusar and Mr Ostapenko in April and May 1992 respectively, but the public prosecution service suspended this on 6 June 1994, under Article 172 § 3 of the Moldovan Code of Criminal Procedure, in the absence of any cooperation from the Transdniestrian judicial and police authorities. The investigation was reopened on 9 September 2000. As a result, a number of requests for cooperation ( the transmission of documents) were sent to the “Public Prosecutor of the MRT ”, Mr V.P. Zaharov. Not receiving any reply, the Moldovan public prosecution service once again suspended the investigation on 9 December 2000. Since then it has not been reopened.
226. By a decree of 4 August 1995, the President of the Republic of Moldova promulgated an amnesty law on the occasion of the first anniversary of the adoption of the Moldovan Constitution. The amnesty applied in particular to convictions for offences defined in Articles 227, 227 -1 and 227 -2 of the Criminal Code committed after 1 January 1990 in several provinces of the left bank of the Dniester.
227. On 3 October 1995 the Moldovan parliament asked the Moldovan Government to give priority to the problem of the applicants'detention as political prisoners and keep it regularly informed of developments in the situation and remedial action undertaken, and requested the Ministry of Foreign Affairs to seek firm support from the countries where Moldova had diplomatic missions with a view to securing the release of the applicants (“the Ilaşcu group” ).
228. The first applicant, despite being imprisoned, was elected a member of the Moldovan parliament on 25 February 1994 and again on 22 March 1998 but, having been deprived of his liberty, he never took his seat.
229. On 16 August 2000 the public prosecutor declared void the order of 28 December 1993 against the “ MRT” “judges” and “prosecutors” (see paragraph 221 above), on the ground that there could only be unlawful arrest within the meaning of Articles 190 and 192 of the Criminal Code where the relevant measure was taken by judges or prosecutors appointed in accordance with the legislation of the Republic of Moldova, which was not so in the present case. He also stated that in his view it was not appropriate to begin an investigation in respect of false imprisonment or usurpation of the powers or title corresponding to an official office, offences defined in Articles 116 and 207 of the Criminal Code respectively, on the grounds that prosecution was time-barred and that the suspected offenders were refusing to assist the authorities with their enquiries.
230. On the same day, the public prosecutor ordered a criminal investigation in respect of the governor of Hlinaia Prison on suspicion of false imprisonment and usurpation of the powers or title corresponding to an official office, as defined in Articles 116 and 207 of the Criminal Code. It appears from the information supplied by the Moldovan Government and the statements of the witnesses heard by the Court at Chişinău in March 2003 that this criminal investigation came to nothing ( see Annex : Mr Rusu, § 302; and Mr Sturza, § 314).
231. On 4 October 2000, at Mr Ilaşcu's request, the Romanian authorities granted him Romanian nationality by virtue of Law no. 21/1991.
232. On 26 November 2000 Mr Ilaşcu was elected to the second chamber of the Romanian parliament. Having renounced Moldovan nationality and his seat in the Moldovan parliament, he ceased to be a member of parliament on 4 December 2000.
233. In 2001, at their request, Mr Ivanţoc and Mr Leşco were likewise granted Romanian nationality.
234. On 5 May 2001 Mr Ilaşcu was released. The circumstances of his release, which are disputed, are summarised below ( see paragraphs 27 9 - 8 2 ).
C. The applicants'detention after conviction
235. The first applicant, Ilie Ilaşcu, was detained in Tiraspol Prison no. 2 until his conviction, on 9 December 1993. He was then transferred to Hlinaia Prison, to the wing for prisoners condemned to death, remaining there until July 1998, when he was again transferred to Tiraspol Prison no. 2. He stayed there until his release in May 2001.
236. Mr Alexandru Leşco was transferred after his trial to Tiraspol Prison no. 2, where he is still detained.
237. Andrei Ivanţoc was transferred after conviction to Hlinaia Prison, where he probably remained for only a few weeks. Because of his illness, he was first admitted to hospital and then transferred to Tiraspol Prison no. 2, where he remains to date.
238. Mr Tudor Petrov-Popa was transferred shortly before the beginning of his trial to Tiraspol Prison no. 2. At some time after Mr Ilaşcu's release in May 2001, Mr Petrov-Popa was transferred to Hlinaia Prison, where he stayed until 4 June 2003, on which date he was transferred to Tiraspol Prison no. 3 “in order to facilitate contact with his lawyer”, according to the prison service.
239. From the first few months after the applicants'arrest, the Moldovan Government granted financial assistance to their families. In addition, the authorities found accommodation for those of the applicants'families who had been obliged to leave Transdniestria and occasionally gave them help, firstly to visit the applicants, by placing transport at their disposal, and secondly to improve the applicants'conditions of detention, by sending doctors and supplying them with newspapers ( see Annex : Mr Snegur, § 240; Mr Moşanu, § 248; and Mr Sangheli, § 267).
240. The applicants were detained, except for a few very short periods, alone, each in his own cell, except for Mr Leşco, who was held in solitary confinement only during the first few years.
Mr Ilaşcu was always held in solitary confinement. He was not allowed correspondence, but nevertheless managed to send a few letters out of prison.
241. In Hlinaia Prison, Mr Ilaşcu was detained in the wing for prisoners condemned to death. His conditions of detention were harsher than those of the other applicants. Inside his cell a metal cage of the same dimensions as the cell had been fitted. Inside the cage was the bed and table, also made of metal.
Mr Ilaşcu was not permitted to speak to the other prisoners or the warders. He was therefore taken alone for his daily walk, which took place in the evening, indoors.
Mr Ilaşcu's food was 100 grams of rye bread three times a day and a glass of tea without sugar twice a day. In the evening he also received a concoction called “ balanda ” whose main ingredient is kibbled maize.
242. The applicants'cells had no natural light : the only light – from an electric bulb in the corridor – entered each cell through an opening cut out in the door.
243. The applicants could only rarely take showers and had to go several months without washing.
244. None of the cells occupied by Mr Ilaşcu during his detention was heated, even in winter.
245. Both in Hlinaia and in Tiraspol, the applicants had cold water in their cells, which were equipped with toilets that were not separated off from the rest of the cell.
246. The applicants were able to receive parcels and visits from their families, although the relevant authorisation was not systematically given by the prison governors.
At times, authorisation to receive visits or parcels was refused on the orders of Igor Smirnov or Vladimir Antiufeyev/Chevtsov.
247. As parcels were searched, any food in them sometimes became unfit for consumption. To protest about the insufficient quantity of food served to them in prison, the authorities'occasional refusal to distribute to them the food brought by their families and the fact that this food was being spoiled in the checking process, the applicants went on several hunger strikes.
248. In 1999 Mr Ilaşcu was allowed visits by Mrs Josette Durrieu, a member of the Parliamentary Assembly of the Council of Europe, and by Mr Vasile Sturza, the Chairman of the Committee for Negotiations with Transdniestria.
249. In a letter sent in March 1999 to the Moldovan parliament about the governmental crisis facing Moldova, Mr Ilaşcu declared his support for Mr Ion Sturza as candidate for the post of Prime Minister. His letter was read out from the rostrum by the President and enabled Parliament to put together the majority required in order to appoint Mr Ion Sturza as Prime Minister.
In 1999, following his vote for the Sturza government and during the nine months that government lasted, Mr Ilaşcu was not allowed any visits from his family or any parcels. The other applicants, particularly Mr Ivanţoc, suffered similar restrictions.
250. In a letter to the Court dated 14 May 1999, Mr Ivanţoc wrote that since Mr Ilaşcu's letter to the Moldovan parliament the applicants'conditions of detention, and those of Mr Ilaşcu in particular, had deteriorated.
251. In a letter of 17 July 1999, Mr Ivanţoc informed the public that he had begun a hunger strike to protest about the harsh conditions in which he and his companions were detained. He pointed out, for example, that he could not contact a lawyer and that he was not permitted to receive visits from doctors or Red Cross representatives. He argued that the passivity of the Moldovan authorities in the face of the situation in Transdniestria, and particularly that of the Ilaşcu group, amounted to tacit support for the Transdniestrian authorities.
252. In a written statement of 29 July 1999 Mr Ivanţoc, who was on the seventy-seventh day of his hunger strike, accused the leaders in Chişinău of doing nothing to protect human rights in Moldova and of “ having a good time ” with the separatist leaders of Transdniestria. He also complained of the Tiraspol prison authorities'refusal to allow himself and Mr Ilaşcu access to a doctor and said that Mr Ilaşcu, who had been held in solitary confinement for a lengthy period, was being ill-treated. All the furniture had been taken out of his cell, his clothes had been taken away from him except for a vest and he was repeatedly beaten by members of the “special forces”, who kept suggesting that he should kill himself.
253. In a letter to the Court of 10 May 2000, Mr Ilaşcu pointed out that he had not been able to consult a doctor since 1997. Doctors who had made the journey from Chişinău at that time had examined him and written a report on his state of health, which they described as serious. In the same letter, he accused the authorities of the Republic of Moldova of hypocrisy, alleging that in spite of their calls for the applicants'release they were doing everything they could to prevent them from regaining their liberty.
254. On 14 January 2002 the applicants'representative, Mr Dinu, informed the Court that the conditions of detention of the three applicants still incarcerated had deteriorated since June 2001. Mr Ivanţoc had been refused a visit by his wife, without any explanation.
Mr Ivanţoc and Mr Leşco began to receive only bread for food. Mr Petrov-Popa was transferred to Hlinaia Prison where, in conditions of total isolation, he was told that he would not be permitted any visits for six months.
255. With the exception of Mr Ilaşcu, the applicants were permitted correspondence in Russian; letters in Romanian were forbidden. Their mail was censored. They could not as a general rule receive newspapers in Romanian.
256. Mr Ivanţoc was refused a visit from his wife on 15 February 2003. The visit was allowed to go ahead one week later.
257. At the witness hearings before the delegates of the Court in Tiraspol in March 2003, the Transdniestrian prison service undertook to allow the applicants'lawyers to meet their clients detained in Transdniestria. Mr Tănase was able to see his client, Mr Leşco, for the first time on a date which has not been specified, in May or June 2003. Mr Gribincea was able to meet his clients for the first time since their incarceration on 20 June 2003.
258. The Court has established the conditions under which the applicants'medical examinations were conducted on the basis of the witness evidence and other documents in its possession, including the registers of medical consultations kept in the places of the applicants'detention.
259. In general, the Court notes that, during their detention the applicants'health deteriorated.
They were able to see, at their request, the prison doctor, who in most cases restricted his examination to palpation and auscultation.
260. Alexandru Leşco, although suffering from acute arthritis, pancreatitis and a dental abscess, was refused permission to see a doctor. His eyesight also deteriorated.
261. In 1995, however, Mr Leşco was taken to hospital in Tiraspol and operated on for his pancreatitis.
262. With few exceptions, the applicants'illnesses were not treated. The only medicines they were given were the medicines sent by their families. The prison “authorities” cited security grounds as the reason for not allowing the applicants to receive the pharmaceutical information notes accompanying these medicines.
263. After negotiations with the Moldovan authorities, and above all after the intervention of President Snegur, the Transdniestrian prison authorities allowed specialists from Chişinău to examine the applicants. Thus, on several occasions between 1995 and 1999, the applicants were examined by a medical commission from Moldova, which included Mr Leşan and Mr Ţîbîrnă. In 1999 the visits took place from January to March, and again in November.
On one occasion, Mr Ilaşcu was able to have an electrocardiogram; Mr Ivanţoc was operated on for liver disease; Mr Petrov-Popa had an injection for his tuberculosis and was prescribed treatment.
The examinations took place in the presence of prison doctors and warders. The medicines prescribed by the Moldovan doctors, as recorded in the prison medical registers, were not supplied, the only medicines received by the applicants being those brought by their families.
On two occasions, Mr Ilaşcu was allowed to be examined by International Red Cross doctors.
264. Mr Petrov-Popa, who was suffering from tuberculosis, was treated for approximately six months, until March 1999. However, most of the medicines were provided by his family.
265. None of the applicants was able to obtain dietetically appropriate meals, although these had been prescribed by doctors, in Mr Ilaşcu's case for his disorder of the digestive tract, in Mr Ivanţoc's case for his liver disease, in Mr Leşco's case for the consequences of his pancreatitis and in Mr Petrov-Popa's case for his tuberculosis.
Mr Leşco, Mr Ivanţoc and Mr Petrov-Popa said they suffered from pancreatitis, liver disease and tuberculosis respectively and were not receiving the appropriate treatment.
266. Mr Petrov-Popa now occupies the same cell in Hlinaia Prison Mr Ilaşcu was in before his release, although there is a special wing there for prisoners with tuberculosis. Since the entry into force in 2002 of the new Transdniestrian Code of Criminal Procedure, Mr Petrov-Popa's conditions of detention in Hlinaia have improved, since he can receive three extra parcels and three extra visits per year. The improvement was ordered by the governor of Hlinaia Prison in the light of the applicant's good conduct.
267. During the first few months of his detention in Hlinaia, Mr Ilaşcu was ill-treated several times.
On the slightest pretext, Mr Ilaşcu was removed to a disciplinary cell.
268. After his transfer to Tiraspol Prison no. 2, Mr Ilaşcu's situation improved slightly in that he was not punished so frequently as at Hlinaia and was ill-treated only after certain events.
For example, after the publication in the press of an article about the applicants, prison warders entered the cells of Mr Ilaşcu and Mr Ivanţoc and confiscated or destroyed all the objects they found there. They beat the applicants severely and placed them in disciplinary cells for twenty-four hours.
269. The cells of Mr Ilaşcu and Mr Ivanţoc were smashed up after Mr Ilaşcu had voted for the Sturza government in 1999, and after the lodging of their application to the Court. The objects destroyed included personal effects such as photographs of the applicants'children and icons. They were also savagely beaten.
After lodging his application with the Court, Mr Ilaşcu was beaten by soldiers who kicked him and hit him with rifle butts. He then had a pistol placed in his mouth and was threatened with death if he ever tried to send letters out of the prison again. On that occasion he lost a tooth.
270. In the above-mentioned letter of 14 May 1999, Andrei Ivanţoc said that on the previous day hooded civilians had entered his cell, struck him with a stick on his head, his back and over his liver and punched him repeatedly over his heart. They had then dragged him into the corridor, where he saw one Colonel Gusarov in the act of banging Ilie Ilaşcu's head against a wall and kicking him. Colonel Gusarov had then put a pistol into Mr Ilaşcu's mouth and threatened to kill him. Colonel Gusarov had told the applicants that this assault had been prompted by their application to the European Court of Human Rights. In the same letter, Andrei Ivanţoc urged the Moldovan parliament and Government, the international media and human rights protection organisations to intervene in order to halt the torture to which he and the other three applicants were being subjected.
271. Following these events, as appears from a letter of 1 September 1999 sent to the Court by Mr Leşco's representative, the applicants were denied food for two days and light for three days.
272. Mr Ivanţoc's cell in Tiraspol Prison was smashed up on other occasions, in November 2002 and on or around 15 February 2003.
D. Steps taken up to May 2001 to secure the applicants'release
273. The negotiations between the Republic of Moldova and the Russian Federation about the withdrawal of Russian forces from Transdniestria, during which the settlement of the Transdniestrian question was also mentioned, never covered the applicants'situation. However, in discussions between the Moldovan President and the President of the Russian Federation, the Moldovan side regularly raised the question of the applicants'release ( see Annex : Y, § 254).
274. In the context of the creation by the Transdniestrian side of a commission to examine the possibility of pardoning all persons convicted and detained in Transdniestria as a result of judgments delivered by the Transdniestrian courts ( see Annex : Mr Sturza, §§ 309 and 311), the Moldovan authorities obtained a promise of the applicants'release. In that context, the Moldovan Deputy Attorney - General, Mr Vasile Sturza, went to Tiraspol several times to negotiate the applicants'release, even meeting Mr Ilaşcu in 1996 in Hlinaia Prison.
Mr Sturza went one last time to Tiraspol on 16 April 2001 in order to bring the applicants back to Chişinău, but without success. It was only on 5 May 2001 that Mr Ilaşcu was released ( see paragraph 27 9 below ).
275. In a letter of 23 February 2001, the President of Moldova, Mr Lucinschi, and the head of the OSCE mission in Moldova, Mr Hill, asked Mr Smirnov to release the applicants for humanitarian reasons.
276. On 12 April 2001 the new President of Moldova, Mr Voronin, again asked Mr Smirnov to release the applicants on humanitarian grounds.
277. From the beginning of the negotiations with the Transdniestrians, the question of the applicants'situation was regularly raised by the Moldovan authorities. In particular, discussions on this point took place with representatives of the “prosecution service of the MRT ”, the “Supreme Court of the MRT ” and the “Minister of Justice of the MRT ”, and with Igor Smirnov.
278. The applicants submitted to the Court a note verbale dated 19 April 2001 to the Moldovan embassy in Moscow, in which the Ministry of Foreign Affairs of the Russian Federation drew the Moldovan Government's attention to the fact that the memorial they had filed with the European Court of Human Rights in October 2000 gave a subjective assessment of Russia's role in the case of the Ilaşcu group and in no way reflected “ the friendly character of relations between the Republic of Moldova and the Russian Federation”. The note continued:
“Examination of the memorial by the Grand Chamber of the European Court, due to take place on 1 May of this year, may cause serious prejudice to the interests of the Russian Federation and Moldova.
In that context, the Russian side, relying on the agreement reached by the heads of the diplomatic services of the two countries with regard to the need to withdraw the memorial concerned, urges the Government of Moldova to take all the necessary steps to ensure the withdrawal of this document before 30 April and to inform the European Court and Russia's representative to that organ of the fact officially.”
E. Mr Ilaşcu's release on 5 May 2001
279. Mr Ilaşcu said that at about 5.30 a.m. on 5 May 2001 Vladimir Chevtsov, also known as Antiufeyev, the Transdniestrian “Minister of Security”, entered his cell and told him to get dressed quickly because he was to be presented to the “President of the MRT ”. The applicant left all his personal effects in the cell and was placed in a car attached by handcuffs to two soldiers. Vladimir Chevtsov also got in the car. The applicant was driven to Chişinau and there, about one hundred metres away from the presidential palace, he was handed over to the head of the Moldovan secret service, Mr Păsat. The applicant asserted that Mr Chevtsov had read out in front of Mr Păsat his transfer document, worded as follows : “The prisoner Ilaşcu, who has been sentenced to death, is transferred to the competent organs of the Republic of Moldova. ” After handing over this document, Mr Chevtsov allegedly declared that the sentence remained valid and would be enforced if Mr Ilaşcu returned to Transdniestria.
Moldovan special forces then took the applicant to the Ministry of Security, where he was questioned briefly before being released.
280. On 22 June 2001 the Moldovan Government informed the Court that the President of the Republic of Moldova, Mr Voronin, had learned of Mr Ilaşcu's release from a letter sent to him by Mr Smirnov on 5 May 2001. In that letter, Mr Smirnov requested that in return for the Transdniestrian authorities'gesture, the Republic of Moldova should condemn “ its 1992 aggression against the Transdniestrian people ”, make full reparation for the pecuniary damage sustained by the “ MRT ” as a result of the aggression, and present its “apologies to the Transdniestrian people for the pain and suffering caused ”.
281. In a letter of 16 November 2001, the Moldovan Government submitted to the Court copies of several decrees signed by Mr Smirnov, the “President of the MRT ”.
Decree no. 263, signed on 6 July 1999, provided for a moratorium on enforcement of the death penalty within the territory of the “ MRT ” from 1 September 1999. This moratorium was apparently also applicable to judgments rendered before that date, but not enforced by the time of the decree's entry into force, which was to coincide with its signature and publication in the Official Gazette. Decree no. 198, signed by Mr Smirnov on 5 May 2001, granted a pardon to Mr Ilaşcu and ordered his release. The decree came into force on the day of its signature.
The Moldovan Government made no comment on the subject of Mr Ilaşcu's alleged transfer, but merely submitted to the Court Mr Smirnov's decree concerning the applicant. Nor did they comment on the decree's authenticity. They added nevertheless that they had heard rumours to the effect that, before signing the decree in question, Mr Smirnov had commuted the death sentence imposed on Mr Ilaşcu to one of life imprisonment.
Mr Ilaşcu asserted that Mr Smirnov's decree was a forgery created after his release. He maintained that, in spite of his release, his conviction remained valid and that if he returned to Transdniestria he would be liable to the death sentence.
282. The Court has only the allegations of Mr Ilaşcu, a copy of Mr Smirnov's “decree” of 5 May 2001 and the Moldovan Government's assertions of a commutation of the sentence. None of these different accounts is corroborated by other evidence and the Court can see no objective element capable of persuading it to accept one version rather than another. Consequently, the Court considers that as the evidence before it stands at present, it is not able to reach a conclusion as to the reasons and legal basis for Mr Ilaşcu's release.
F. Steps taken after May 2001 to secure the other applicants'release
283. After Mr Ilaşcu's release, the representative of Mr Leşco submitted in a letter received by the Court on 1 June 2001 that this release had been prompted by the Russian authorities'intercession with the Transdniestrian authorities. He asserted that, in an interview given to the Moldovan public radio station Radio Moldova, the Moldovan Minister for Foreign Affairs, Mr Nicolae Chernomaz, had stated : “ Ilie Ilaşcu was released following the intervention of the Russian Minister for Foreign Affairs, Igor Ivanov, who, at the request of Moldova's President Voronin, spoke to the Tiraspol authorities on this subject over the telephone. He explained to them that this is an international problem affecting the honour of the Russian Federation and Moldova .” Mr Chernomaz apparently went on to say that he had met Mr Ivanov to try to convince him that “the application to the European Court of Human Rights could not be withdrawn because Mr Ilaşcu was a prisoner of conscience, a hostage of the 1992 conflict”.
284. At the hearing on 6 June 2001, the Moldovan Government thanked those who had contributed to Mr Ilaşcu's release, in particular the Russian Federation, and stated that they wished to modify the position they had previously adopted in the observations of 24 October 2000, particularly as regards the responsibility of the Russian Federation. They explained this decision by their desire to avoid undesirable consequences, such as tension or the end of the process aimed at finding a peaceful solution to the Transdniestrian dispute and securing the release of the other applicants.
285. After Mr Ilaşcu's release, meetings between him and the Moldovan authorities took place to discuss the prospects for the release of the other applicants.
At a press conference which he gave on 31 July 2001, the President of Moldova, Mr Voronin, declared : “ Mr Ilaşcu is the person who is keeping his comrades detained in Tiraspol. ” He pointed out in that connection that he had suggested to Mr Ilaşcu that he should withdraw his application to the Court against the Russian Federation and Moldova, in exchange for which the other applicants would be released before 19 June 2001, but that Mr Ilaşcu had refused to do so. According to the Moldovan press agency Basa-press, Mr Voronin also suggested that if Mr Ilaşcu won his case before the Court that would make the release of the other applicants more difficult.
G. International reactions to the applicants'conviction and detention
286. In a report of 20 February 1994 written at the request of the OSCE's Office for Democratic Institutions and Human Rights by Mr Andrzej Rzeplinski, Professor of Criminal Law and Human Rights at the University of Warsaw, and Mr Frederick Quinn, of the OSCE, following a fact-finding visit to Transdniestria, the applicants'trial before the “Supreme Court of the MRT ” was analysed from the point of view of respect for fundamental rights. The authors noted serious infringements of the defendants'rights, which included the lack of any contact with a lawyer during the first two months after their arrest, very limited access thereafter, infringement of the right to be tried by an impartial tribunal, in that the court had refused to examine the applicants'allegations that their confessions had been wrung from them by inhuman treatment, and infringement of the right enshrined in Article 14.5 of the International Covenant on Civil and Political Rights, in that the applicants'trial had been conducted according to an exceptional procedure which denied them any right to an appeal.
Lastly, the authors described the trial as “a political event from beginning to end ”. They concluded that some of the terrorism charges preferred against the applicants on the basis of the Criminal Code of the Soviet era would be considered merely free speech issues in modern democracies.
287. On 28 September 1999 the President of the Parliamentary Assembly and the Secretary General of the Council of Europe appealed to the separatist authorities in Transdniestria to permit the International Committee of the Red Cross ( ICRC ) to visit the applicants and called for an immediate improvement in their conditions of detention.
288. While in Transdniestria on 18 and 19 October 2000, during a visit to Moldova from 16 to 20 October 2000, the Council of Europe's Commissioner for Human Rights asked the Transdniestrian authorities for permission to see Mr Ilaşcu in order to check his conditions of detention. Permission was refused on the ground that, for lack of time, it had not been possible to obtain the necessary authorisations.
289. In November 2000, following its visit to Moldova, including the region of Transdniestria, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) produced its report. On the question of the situation in Transdniestria's prisons, the CPT drew attention to severe overcrowding and expressed its concern about the practice of keeping certain prisoners in solitary confinement for long periods and about the inadequate level of treatment for sick prisoners, indeed the total absence of treatment for tuberculosis patients, including the possibility of receiving dietetically appropriate meals.
The CPT pointed out that the situation in Transdniestrian penitentiary establishments in 2000 left a great deal to be desired, especially at Hlinaia Prison, where the conditions of detention were deplorable : poor ventilation, insufficient natural light, inadequate sanitary facilities and overcrowding.
On the situation of the applicants in particular, the CPT said that three members of the Ilaşcu group had been detained for eight years under conditions of solitary confinement which were having harmful psychological consequences for at least one of them. The CPT went on to say that solitary confinement could, in certain circumstances, amount to inhuman and degrading treatment and that in any event solitary confinement for so many years was indefensible. The CPT asked the Transdniestrian authorities to relax the conditions of detention of the three members of the Ilaşcu group held in solitary confinement by allowing them access to the newspapers of their choice and by ensuring that they could receive visits from their families and lawyers.
The doctors in the CPT delegation were able to examine three of the four applicants, including Mr Ilaşcu. They recommended that he be given appropriate medical treatment for his illness.
The CPT reported accounts of beatings in May 1999 allegedly inflicted on members of the Ilaşcu group imprisoned in Tiraspol by masked individuals.
V. INTERNATIONAL LAW, DOMESTIC LAW AND OTHER RELEVANT AGREEMENTS
290. The relevant provisions of the Minsk Agreement of 8 December 1991 read as follows :
“We, the Republic of Belarus, the Russian Federation (RSFSR) and Ukraine, as founder States of the Union of Soviet Socialist Republics and signatories of the Union Treaty of 1922, hereinafter referred to as the'High Contracting Parties', hereby declare that the USSR as a subject of international law and a geopolitical reality no longer exists.
On the basis of the historical commonality of our peoples and the ties that have developed between them, and bearing in mind the bilateral agreements concluded between the High Contracting Parties,
Desirous of setting up lawfully constituted democratic States,
Intending to develop our relations on the basis of mutual recognition of and respect for State sovereignty, the inalienable right to self-determination, the principles of equality and non-intervention in internal affairs, of abstention from the use of force and from economic or other means of applying pressure and of settling controversial issues through agreement and other universally recognised principles and norms of international law,
Confirming our adherence to the purposes and principles of the Charter of the United Nations, the Helsinki Final Act and the other documents of the Conference on Security and Cooperation in Europe,
Undertaking to abide by the universally recognised international norms relating to human and peoples'rights,
The High Contracting Parties hereby establish the Commonwealth of Independent States.
1. The member States of the Commonwealth will cooperate in safeguarding international peace and security and implementing effective measures for the reduction of armaments and military expenditures. ...
2. The Parties will respect each other's efforts to achieve the status of a nuclear-free zone and a neutral State.
3. The member States of the Commonwealth will maintain, and retain under joint command, a common military and strategic space, including joint control over nuclear weapons, the procedure for implementing which will be regulated by a special agreement.
4. They also jointly guarantee the necessary conditions for the deployment and functioning and the material and social security of the strategic armed forces. ...
The High Contracting Parties undertake to discharge the international obligations incumbent on them under treaties and agreements entered into by the former USSR .”
291. On 24 December 1991 the USSR's Permanent Representative to the United Nations, Ambassador Y. Vorontsov, communicated to the Secretary - General of the United Nations a letter from the President of the Russian Federation, Boris Yeltsin, worded as follows :
“The USSR's membership of the United Nations, including the Security Council and all the other organs and organisations of the United Nations system, is continued by the Russian Federation (RSFSR) with the support of the countries of the Commonwealth of Independent States. In that connection, I request that the name “ Russian Federation ” be used at the United Nations in place of the “ Union of Soviet Socialist Republics ”. The Russian Federation assumes full responsibility for all the USSR's rights and obligations under the United Nations Charter, including financial undertakings. Please consider this letter confirmation of the right of all persons currently holding the status of USSR representatives to the United Nations to represent the Russian Federation in the organs of the United Nations. ”
292. On 21 July 1992 the President of Moldova, Mr Mircea Snegur, and the President of the Russian Federation, Mr Boris Yeltsin, signed in Moscow an agreement concerning principles for a friendly resolution of the armed conflict in the Transdniestrian region of the Republic of Moldova, which provided:
“The Republic of Moldova and the Russian Federation,
Desiring to bring about as rapidly as possible a final ceasefire and settlement of the armed conflict in the Transdniestrian regions;
Endorsing the principles enshrined in the Charter of the United Nations and those of the Conference for Security and Cooperation in Europe;
Noting that, on 3 July 1992, the President of the Republic of Moldova and the President of the Russian Federation reached agreement on principles,
1. The parties to the conflict undertake, on signature of the present agreement, to take all necessary steps to implement the ceasefire, and a cessation of any other armed action against the other party.
2. As soon as the ceasefire has taken effect the parties will withdraw their armies, weapons and military equipment within seven days. Withdrawal of the two armies will permit the establishment of a security zone between the parties to the conflict. The exact boundaries of the security zone will be determined in a special protocol agreed between the parties on implementation of the present agreement.
1. A specially created commission, composed of representatives of the three parties to the settlement of the conflict, will have responsibility for verifying implementation of the measures provided for in Article 1 above and ensure that a security regime is enforced within the security zone. To that end, the commission will have recourse to the groups of military observers brought in under previous agreements, including quadripartite agreements. The control commission will complete its work within seven days of signature of the present agreement.
2. Each party will appoint its representatives to the commission. The control commission will sit in Bender.
3. With a view to implementing the measures mentioned above, the control commission will take under its orders the military contingents of volunteers representing the parties participating in the implementation of the present agreement. The positions to be occupied by these contingents and their interventions to maintain the ceasefire and ensure security in the conflict in the region will be determined by the control commission, which must reach a consensus in this regard. The size of the military contingents, their status and the conditions for their intervention in and withdrawal from the security zone will be laid down in a separate protocol.
4. In the event of breaches of the provisions of the present agreement, the control commission will carry out inquiries and take without delay the necessary steps to re-establish peace and order, and appropriate measures to prevent future breaches.
As the seat of the control commission, and in view of the seriousness of the situation, Bender is hereby declared a region subject to a security regime, enforcement of security being the task of the military contingents of the parties to implementation of the present agreement. The control commission will ensure the maintenance of public order in Bender, acting together with the police.
Bender will be administered by the organs of local self-government, where necessary acting together with the control commission.
The Russian Federation's 14th Army, stationed in the territory of the Republic of Moldova, will observe strict neutrality. Both parties to the conflict undertake to observe neutrality and not to engage in any action against the 14 th Army's property, its personnel or their families.
All questions relating to the 14th Army's status or the stages and timetable for its withdrawal will be settled by negotiations between the Russian Federation and the Republic of Moldova.
1. The parties to the conflict consider sanctions or blockades of any kind unacceptable. Accordingly, all obstacles to the free movement of goods, services and persons shall be removed, and all necessary measures will be taken to put an end to the state of emergency in the territory of the Republic of Moldova.
2. The parties to the conflict will enter without delay into negotiations to solve problems relating to the return of refugees to their homes, aid to the population of the conflict- stricken region and reconstruction of housing and public buildings. The Russian Federation will lend its full support to that end.
3. The parties to the conflict will take all necessary steps to ensure the free movement of humanitarian aid intended for the conflict- stricken region.
A common press centre will be created with the task of providing the control commission with correct information about developments in the situation in the region.
The parties consider that the measures provided for in the present agreement form a very important part of the settlement of the conflict by political means.
The present agreement will come into force on the day of its signature.
The present agreement shall cease to have effect by a joint decision of the parties or in the event of denunciation by one of the parties, which will entail cessation of the activities of the control commission and the military contingents under its orders. ”
293. On 8 April 1994 the Moldovan parliament ratified the Alma-Ata Agreement of 21 December 1991 by which Moldova had joined the CIS, with the following reservations :
2. Article 6, with the exception of paragraphs 3 and 4 ...
The Parliament of the Republic of Moldova considers that within the CIS the Republic of Moldova will make economic cooperation its priority, excluding cooperation in the political and military sphere, which it considers incompatible with the principles of sovereignty and independence. ”
294. The relevant provisions of the Moldovan Constitution of 29 July 1994 provide :
“ 1. The Republic of Moldova proclaims its permanent neutrality.
2. The Republic of Moldova shall not authorise the stationing in its territory of troops belonging to other States. ”
“ 1. A form of autonomy under special conditions may be granted to areas on the left bank of the Dniester and in the south of the Republic of Moldova by virtue of a special status authorised by means of an institutional act ... ”
295. The relevant provisions of the Moldovan Criminal Code provide:
“False imprisonment shall be punished by imprisonment for up to one year.
False imprisonment which has endangered the life or health of the victim or caused him or her physical suffering shall be punished by imprisonment for one to five years. ”
“Usurpation of the powers or title corresponding to an official office, if perpetrated in order to further the commission of an offence, shall be punished by a fine of up to thirty times the minimum monthly salary or up to two years'labour or up to two years'imprisonment.”
296. On 21 October 1994 Moldova and the Russian Federation signed an “Agreement concerning the legal status of the military formations of the Russian Federation temporarily present in the territory of the Republic of Moldova and the arrangements and time-limits for their withdrawal”, whose main provisions are worded as follows :
“The Republic of Moldova and the Russian Federation, hereinafter referred to as'the Parties', with the participation of the region of Transdniestria,
Having regard to the new political relations established in Europe and throughout the world;
Confirming that the Republic of Moldova and the Russian Federation are sovereign and independent States;
Convinced that they must ground their relations on principles of friendship, mutual understanding and cooperation;
Proceeding from agreements the Parties have already reached in the military sphere;
Acting in accordance with the documents adopted at the Conference for Security and Cooperation in Europe,
The status of the military formations of the Russian Federation in the territory of the Republic of Moldova is determined by the present Agreement.
The stationing of military formations of the Russian Federation within the territory of the Republic of Moldova is an interim measure.
Subject to technical constraints and the time required to station troops elsewhere, the Russian side will effect the withdrawal of the above-mentioned military formations within three years from the entry into force of the present Agreement.
The practical steps taken with a view to withdrawal of the military formations of the Russian Federation from Moldovan territory within the time stated will be synchronised with the political settlement of the Transdniestrian conflict and the establishment of a special status for the Transdniestrian region of the Republic of Moldova.
The stages and timetable for the final withdrawal of the military formations of the Russian Federation will be laid down in a separate protocol, to be agreed between the Parties'Ministries of Defence.
For as long as Russian military formations remain in the territory of the Republic of Moldova, no recourse may be had to them with a view to the solution of an internal conflict within the Republic of Moldova, or for other military actions against third countries.
The sale of any type of military technology, armaments and ammunition belonging to the military formations of the Russian Federation in the territory of the Republic of Moldova may take place only after a special agreement between the governments of the two countries.
Movements and military investigations by the military formations of the Russian Federation in the territory of the Republic of Moldova outside their bases will take place in accordance with a plan drawn up by agreement with the relevant organs of the Republic of Moldova.
It is the responsibility of military formations to ensure, both inside their bases and during movements outside, that military objects and property are guarded in the manner prescribed within the Russian army.
Tiraspol military airport will be used as the joint base of the aviation of the military formations of the Russian Federation and the civil aviation of the Transdniestrian region of the Republic of Moldova.
Movement of military aircraft inside the airspace of the Republic of Moldova is to take place on the basis of a special agreement concluded between the Parties'Ministries of the Interior.
Accommodation and barracks, service buildings, vehicle parks, firing ranges and fixed machine tools, stores and the tools they contain, buildings and other premises left unoccupied as a result of the withdrawal of the military formations of the Russian Federation will be transferred for management to the organs of the local public administrative authorities of the Republic of Moldova in the quantity existing de facto and in the condition they are in.
The manner of the transfer or sale of the immovable property of the military formations of the Russian Federation will be determined in a special agreement to be concluded between the governments of the Parties.
With a view to ensuring the withdrawal of the military formations of the Russian Federation from the territory of the Republic of Moldova within the time stated, and their effective operation in their bases within the territory of the Russian Federation, the premises needed for the installation of the military formations will be moved. The amount of money to be paid, the list of premises to be reconstructed and the place where they are to be installed will be determined in a special agreement.
The present Agreement will come into force on the day of the last notification by the Parties concerning implementation of the necessary internal procedures, and will remain in force until the total withdrawal of Russian military formations from the territory of the Republic of Moldova.
The present Agreement will be registered with the United Nations Organisation in accordance with Article 102 of the United Nations Charter. ”
297. On 21 October 1994 an agreement was reached in Moscow between the Ministries of Defence of the Republic of Moldova and the Russian Federation on flights by the aviation of Russian military units temporarily located in the territory of the Republic of Moldova; this provided for use of Tiraspol airport by transport planes of the armed forces of the Russian Federation. The relevant parts of that agreement provide :
“ Tiraspol military airport will be used by the military units of the Russian Federation until their definitive withdrawal from the territory of the Republic of Moldova.
Movement and joint flights at Tiraspol airport by the civil aviation of the region of Transdniestria belonging to the Republic of Moldova and Russian aircraft will take place in accordance with the'Provisional rules on the joint dispersed aviation of the military formations of the Russian Federation and the civil aviation of the region of Transdniestria of the Republic of Moldova', and in coordination with the State civil aviation authority of the Republic of Moldova, the Ministry of Defence of the Republic of Moldova and the Ministry of Defence of the Russian Federation.
Other aircraft may take off from Tiraspol airport only after coordination with the State aviation authorities of the Republic of Moldova and the Ministry of Defence of the Russian Federation. ”
“ The postal aircraft belonging to the Russian units may take off from Tiraspol airport twice a week at most (on Tuesdays and Thursdays, or on other days of the week after prior coordination between the Parties). ”
Requests by the aviation of the armed forces of the Russian Federation to carry out flying tuition, training flights and flyovers are to be presented before 3 p.m. (local time) through the air traffic coordination bodies (control centres).
Confirmation of such requests and the authorisations needed for use of the Republic of Moldova's airspace will be issued by the anti-aircraft defence and aviation control centre of the Armed Forces of the Republic of Moldova. The decision concerning the use of the Republic of Moldova's airspace, in accordance with the flight request, in the areas where the Russian units are temporarily stationed will be taken by the Chief of General Staff of the Armed Forces of the Republic of Moldova. ”
“ Monitoring of the implementation of the present agreement will be carried out by the representatives of the Ministries of Defence of the Republic of Moldova and the Russian Federation, in accordance with the special rules drawn up jointly by them. ”
“ The present agreement will come into force on the date of its signature and will remain valid until the definitive withdrawal of the military units of the Russian Federation from the territory of the Republic of Moldova.
The present agreement may be amended with the mutual consent of the Parties. ”
298. The instrument of ratification of the Convention deposited by the Republic of Moldova with the Council of Europe on 12 September 1997 contains a number of declarations and reservations, the relevant part being worded as follows :
“ 1. The Republic of Moldova declares that it will be unable to guarantee compliance with the provisions of the Convention in respect of omissions and acts committed by the organs of the self-proclaimed Trans-Dniester republic within the territory actually controlled by such organs, until the conflict in the region is finally settled.
299. On 20 March 1998 the representative of the Russian Federation, Mr V. Chernomyrdin, and the representative of the “ MRT ”, Mr I. Smirnov, signed in Odessa ( Ukraine ) an agreement on questions relating to military property, worded as follows :
“ At the close of negotiations on questions relating to military property linked to the presence of the Russian forces in Transdniestria, agreement has been reached on the following points:
1. All the property concerned is divided into three categories :
(a) the first category includes the standard-issue weapons of the United Group of Russian forces, its ammunition and its property;
(b) the second includes weapons, ammunition and surplus movable military property which must imperatively be returned to Russia;
(c) the third includes weapons, ammunition and military and other equipment which can be sold ( decommissioned ) directly on the spot or outside the places where they are stored.
Revenue from the sale of property in the third category will be divided between the parties in the following proportions :
Transdniestria : 50%, after deducting the expenses arising from the sale of military property in the third category.
Conditions for the use and transfer of property in the third category shall be laid down by Russia with the participation of Transdniestria.
2. The parties have agreed to pay their debts to each other in full on 20 March 1998 by offsetting them against the income from the sale of military property or from other sources.
3. Russia will continue to withdraw from Transdniestria the military property essential to the requirements of the Russian armed forces as defined in the annex to the present agreement. The Transdniestrian authorities will not oppose the removal of this property.
4. In agreement with Transdniestria, Russia will continue to destroy the unusable and untransportable ammunition near to the village of Kolbasna with due regard for safety requirements, including ecological safety.
5. To ensure the rapid transfer of the immovable property, the representatives of the Russian Federation and Transdniestria have agreed that the premises vacated by the Russian forces may be handed over to the local authorities in Transdniestria in accordance with an official deed indicating their real value.
6. It is again emphasised that the gradual withdrawal of Russian armed forces stationed in Transdniestria and the removal of their property will be effected transparently. Transparent implementation of the withdrawal measures can be ensured on a bilateral basis in accordance with the agreements signed between Moldavia and Russia. The essential information on the presence of the Russian forces in Transdniestria will be transmitted in accordance with the current practice to the OSCE, through the OSCE mission in Chişinău. ”
I. WHETHER THE APPLICANTS COME WITHIN THE JURISDICTION OF THE REPUBLIC OF MOLDOVA
A. Arguments submitted to the Court
300. The Moldovan Government submitted that the applicants did not at the material time and still do not come within the de facto jurisdiction of Moldova; the application was therefore incompatible ratione personae with the provisions of the Convention.
Under Article 1 of the Convention, the High Contracting Parties had agreed to secure to everyone within their jurisdiction the rights and freedoms set forth therein. In international law, a State's territorial jurisdiction, which had to be exclusive and total, was called territorial sovereignty. That sovereignty enabled it to exercise in a circumscribed area its State functions, made up of legislative, administrative and judicial acts. But a State not in effective control of part of its territory could not really exercise territorial jurisdiction and sovereignty. In such a case, the concepts of “jurisdiction” and “territory” were not interchangeable. For the Convention to be applicable, it had to be possible for the State to confer and secure the rights set forth in the Convention. Accordingly, the question whether a person came within the jurisdiction of a State was a question of fact; it was necessary to determine whether, at the time of the conduct complained of, the State authorities did or did not exercise effective control over the alleged victims.
301. In the present case, the areas on the left bank of the Dniester had not been under the control of the constitutional organs of the Republic of Moldova since at least the end of 1991. The “ Moldavian Republic of Transdniestria” had been set up in that territory and had its own institutions, including armed forces, a police force and customs officers. That was why, when Moldova ratified the Convention, it had made a declaration seeking to exclude its responsibility with regard to acts committed in Transdniestrian territory, which it did not control.
The Moldovan Government pointed out that Moldova's lack of control over the territory under the authority of the Transdniestrian regime had been confirmed by all the witnesses heard by the Court.
302. They submitted that the situation arising from the fact that it was impossible for them to exercise effective control over Transdniestrian territory was similar to that described by the Court in Cyprus v. Turkey ([GC], no. 257 81/94, § 78, ECHR 2001-IV), in which it had held that the Cypriot Government were unable to exercise effective control over the territory of the “TRNC”, which the latter controlled de facto.
303. They rejected any allegation of cooperation on their part with the Transdniestrian authorities and asserted that certain measures had been taken in the context of negotiations to calm the Transdniestrian conflict, some of these with the approval and in the presence of OSCE mediators, and others in the interests of the Moldovan population inside the territory controlled by the Transdniestrian regime.
304. The Moldovan Government considered that they had discharged their positive obligations, both general, in terms of finding a solution to the conflict and re-establishing their control over Transdniestrian territory, and specific, in terms of securing the applicants'Convention rights.
In that connection, they referred to the numerous attempts made to settle the conflict, confirmed by the evidence of the witnesses heard in Chişinău, to the declarations and interventions of Moldovan political leaders – including those made during negotiations to settle the conflict – and other condemnations of the illegality of the applicants'detention and conviction, chief among which was the Moldovan Supreme Court's judgment of 3 February 1994, to the judicial measures taken against the persons responsible for their detention and conviction and to the economic and other measures taken to reaffirm Moldovan sovereignty throughout Moldovan territory, including the Transdniestrian part.
However, these measures had come to nothing, given that the “ MRT ” was an entity capable of functioning autonomously in relation to Moldova and that the Transdniestrian authorities had had recourse to reprisals in response to some of the measures concerned.
Consequently, the Moldovan Government submitted that they had no other means at their disposal to enforce respect for the applicants'rights under the Convention without at the same time endangering Moldova's economic and political situation.
2. The Government of the Russian Federation
305. The Russian Government merely observed that the Moldovan Government was the only legitimate government of Moldova. As Transdniestrian territory was an integral part of the Republic of Moldova, only the latter could be held responsible for acts committed in that territory.
306. The applicants submitted that Moldova had to be held responsible for the violations of the Convention they alleged to have been committed in Transdniestrian territory in that, since Transdniestria was part of its national territory, and notwithstanding its lack of effective control, the Moldovan Government were under an obligation to take sufficient measures to ensure respect for the rights guaranteed by the Convention throughout its territory. However, they had not done so. The applicants contended that the positive steps taken by the Moldovan authorities had been limited and insufficient, regard being had to the political and economic means at their disposal.
Not only had the Moldovan Government not discharged their positive obligations under the Convention, they had even gone so far as to take measures amounting to de facto recognition of the Tiraspol regime or at least tacit acceptance of the situation, such as the release of Lieutenant ‑ General Iakovlev (see paragraph 50 above), the transfer of Mr Ilaşcu to the Moldovan authorities on 5 May 2001 (see paragraph 279 above), the agreements of 16 May 2001 (see paragraph 174 above) and cooperation, particularly in customs and police matters (see paragraphs 176 - 77 above).
The applicants asserted that the speech in which President Voronin accused Mr Ilaşcu, after his release, of being responsible for the detention of the other applicants, had been an act capable of engaging Moldova's responsibility under the Convention.
307. Lastly, the applicants submitted that the Moldovan authorities should have entered into long-term negotiations with the Russian authorities, the only ones capable of controlling the Transdniestrian regime, with a view to securing their release.
4. The Romanian Government, third-party intervener
308. In their third-party intervention, the Romanian Government observed at the outset that they did not wish to express a view on Moldova's responsibility in the case. Their intention was to supply clarifications of the facts and legal reasoning in support of the case of the applicants who were its nationals.
309. They considered that a State party to the Convention could not limit the scope of the undertakings it had given when ratifying the Convention by pleading that it did not have jurisdiction within the meaning of Article 1. Contracting States had to secure the rights guaranteed by the Convention to the persons resident in their territory and were required to take the steps which the positive obligations established by the Court's case-law made necessary.
Although the existence of such positive obligations should not be interpreted in such a way as to impose on the authorities an unbearable or excessive burden, States were nevertheless required to display reasonable diligence.
The Romanian Government submitted that in the present case the Moldovan authorities had failed to prove that they had made every effort to secure their sovereignty over Transdniestrian territory. In particular, they criticised the Moldovan authorities for not taking any effective steps to enforce the Supreme Court of Moldova's judgment of 3 February 1994 and for authorising the customs services of the “ MRT ” to use the stamps and seals of the Republic of Moldova so that goods from the Transdniestrian region could be exported.
(a) The concept of “ jurisdiction ”
310. Article 1 of the Convention provides:
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”
311. It follows from Article 1 that member States must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their “jurisdiction”.
The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention.
312. The Court refers to its case-law to the effect that the concept of “jurisdiction” for the purposes of Article 1 of the Convention must be considered to reflect the term's meaning in public international law (see Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, § 20, judgment of 14 May 2002; Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, §§ 59-61, ECHR 2001-XII; and Assanidze v. Georgia [GC], no. 71503/01, § 137, ECHR 2004-II ).
From the standpoint of public international law, the words “within their jurisdiction” in Article 1 of the Convention must be understood to mean that a State's jurisdictional competence is primarily territorial (see Banković and Others, cited above, § 59 ), but also that jurisdiction is presumed to be exercised normally throughout the State's territory.
This presumption may be limited in exceptional circumstances, particularly where a State is prevented from exercising its authority in part of its territory. That may be as a result of military occupation by the armed forces of another State which effectively controls the territory concerned (see Loizidou v. Turkey ( preliminary objections ), judgment of 23 March 1995, Series A no. 310, and Cyprus v. Turkey, §§ 76-80, cited above, and also cited in the above-mentioned Banković and Others decision, §§ 70-71), acts of war or rebellion, or the acts of a foreign State supporting the installation of a separatist State within the territory of the State concerned.
313. In order to be able to conclude that such an exceptional situation exists, the Court must examine on the one hand all the objective facts capable of limiting the effective exercise of a State's authority over its territory, and on the other the State's own conduct. The undertakings given by a Contracting State under Article 1 of the Convention include, in addition to the duty to refrain from interfering with the enjoyment of the rights and freedoms guaranteed, positive obligations to take appropriate steps to ensure respect for those rights and freedoms within its territory (see, among other authorities, Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V).
Those obligations remain even where the exercise of the State's authority is limited in part of its territory, so that it has a duty to take all the appropriate measures which it is still within its power to take.
314. Moreover, the Court observes that, although in Banković and Others (cited above, § 80) it emphasised the preponderance of the territorial principle in the application of the Convention, it has also acknowledged that the concept of “jurisdiction” within the meaning of Article 1 of the Convention is not necessarily restricted to the national territory of the High Contracting Parties (see Loizidou v. Turkey ( merits ), judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2234-35, § 52).
The Court has accepted that in exceptional circumstances the acts of Contracting States performed outside their territory, or which produce effects there, may amount to exercise by them of their jurisdiction within the meaning of Article 1 of the Convention.
According to the relevant principles of international law, a State's responsibility may be engaged where, as a consequence of military action – whether lawful or unlawful – it exercises in practice effective control of an area situated outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control, whether it be exercised directly, through its armed forces, or through a subordinate local administration ( ibid. ).
315. It is not necessary to determine whether a Contracting Party actually exercises detailed control over the policies and actions of the authorities in the area situated outside its national territory, since even overall control of the area may engage the responsibility of the Contracting Party concerned ( see Loizidou (merits), cited above, pp. 223 5 -36, § 56).
316. Where a Contracting State exercises overall control over an area outside its national territory, its responsibility is not confined to the acts of its soldiers or officials in that area but also extends to acts of the local administration which survives there by virtue of its military and other support ( see Cyprus v. Turkey, cited above, § 77).
317. A State's responsibility may also be engaged on account of acts which have sufficiently proximate repercussions on rights guaranteed by the Convention, even if those repercussions occur outside its jurisdiction. Thus, with reference to extradition to a non-Contracting State, the Court has held that a Contracting State would be acting in a manner incompatible with the underlying values of the Convention, “that common heritage of political traditions, ideals, freedom and the rule of law” to which the Preamble refers, if it were knowingly to hand over a fugitive to another State where there are substantial grounds for believing that the person concerned faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment ( see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 35, §§ 88-91).
318. In addition, the acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may engage the State's responsibility under the Convention ( see Cyprus v. Turkey, cited above, § 81). That is particularly true in the case of recognition by the State in question of the acts of self-proclaimed authorities which are not recognised by the international community.
319. A State may also be held responsible even where its agents are acting ultra vires or contrary to instructions. Under the Convention, a State's authorities are strictly liable for the conduct of their subordinates; they are under a duty to impose their will and cannot shelter behind their inability to ensure that it is respected ( see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 64, § 159; see also Article 7 of the International Law Commission's draft articles on the responsibility of States for internationally wrongful acts (“the work of the ILC”), p. 104, and the Cairo case heard by the General Claims Commission, ( 1929 ) Reports of International Arbitral Awards 5 (RIAA ), p. 516).
( b ) State responsibility for a wrongful act
320. Another recognised principle of international law is that of State responsibility for the breach of an international obligation, as evidenced by the work of the ILC.
321. A wrongful act may be described as continuing if it extends over the entire period during which the relevant conduct continues and remains at variance with the international obligation ( see the commentary on draft Article 14 § 2, p. 139 of the work of the ILC ).
In addition, the Court considers that, in the case of a series of wrongful acts or omissions, the breach extends over the entire period starting with the first of the acts and continuing for as long as the acts or omissions are repeated and remain at variance with the international obligation concerned ( see also draft Article 15 § 2 of the work of the ILC ).
2. Application of the above principles
322. The Court must therefore ascertain whether Moldova's responsibility is engaged on account of either its duty to refrain from wrongful conduct or its positive obligations under the Convention.
323. The Court notes in the first place that Moldova asserted that it was not in control of part of its national territory, namely the region of Transdniestria.
324. The Court observes that, in its decision on admissibility, it held that the declaration made by Moldova in its instrument of ratification of the Convention concerning the legitimate Moldovan authorities'lack of control over Transdniestrian territory was not a valid reservation within the meaning of Article 57 of the Convention.
The question which arises is therefore whether, despite the above-mentioned finding, the factual situation to which Moldova's declaration and the subsequent observations submitted by the Moldovan Government refer affects the legal position as regards Moldova's responsibility under the Convention.
325. In the present case, the Court notes that, having been proclaimed sovereign by its parliament on 23 June 1990, and having become independent on 27 August 1991 and been subsequently recognised as such by the international community, the Republic of Moldova was immediately confronted with a secessionist movement in the region of Transdniestria. That movement grew stronger in December 1991 with the organisation of local elections, which were declared illegal by the Moldovan authorities ( see paragraph 47 above ). At the end of 1991, a civil war broke out between the forces of the Republic of Moldova and the Transdniestrian separatists, actively supported by at least some of the soldiers of the 14 th Army. In March 1992, in view of the seriousness of the situation, a state of emergency was declared ( see paragraph 6 9 above ).
During the armed conflict, the Moldovan authorities made a series of appeals to the international community, including one to the United Nations Security Council on 23 June 1992 ( see paragraph 8 3 above ), asking the Security Council to support them in their struggle for independence. Accusing the Russian Federation of supporting the Transdniestrian separatists, they repeatedly asked Russia to halt the “aggression ” against them ( see paragraphs 78 -79 and 8 2- 8 3 above ).
326. On 21 July 1992 a ceasefire agreement was signed on the basis of the status quo and providing for the establishment of a security zone to preserve it ( see paragraphs 87 - 8 9 above ).
On 29 July 1994 the new Constitution of the Republic of Moldova was adopted. Article 111 provided for the possibility of granting a form of autonomy to areas which included places on the left bank of the Dniester. Article 11 prohibited the stationing of foreign troops in its territory ( see paragraph 29 4 above ).
327. Subsequently, when it ratified the Convention on 12 September 1997, Moldova deposited with its instrument of ratification a declaration stating that it was unable to ensure compliance with the Convention's provisions in that part of its territory under the effective control of the organs of the “self-proclaimed Trans-Dniester republic” until the conflict was finally settled (see paragraph 29 8 above).
328. The ceasefire agreement of 21 July 1992 ended the first phase of Moldova's efforts to exercise its authority throughout its territory.
329. The Court notes that after this period Moldova tended to adopt an acquiescent attitude, maintaining over the region of Transdniestria a control limited to such matters as the issue of identity cards and customs stamps (see paragraphs 17 9 - 80 above).
The Court accordingly sees in the declaration attached to the instrument of Moldova's ratification of the Convention a reference to this de facto situation.
330. On the basis of all the material in its possession, the Court considers that the Moldovan Government, the only legitimate government of the Republic of Moldova under international law, does not exercise authority over part of its territory, namely that part which is under the effective control of the “ MRT ”.
Moreover, that point is not disputed by any of the parties or by the Romanian Government.
331. However, even in the absence of effective control over the Transdniestrian region, Moldova still has a positive obligation under Article 1 of the Convention to take the diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention.
3. The concept of positive obligations
332. In determining the scope of a State's positive obligations, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, the diversity of situations obtaining in Contracting States and the choices which must be made in terms of priorities and resources. Nor must these obligations be interpreted in such a way as to impose an impossible or disproportionate burden (see Özgür Gündem v. Turkey, no. 23144/93, § 43, ECHR 2000-III).
333. The Court considers that where a Contracting State is prevented from exercising its authority over the whole of its territory by a constraining de facto situation, such as obtains when a separatist regime is set up, whether or not this is accompanied by military occupation by another State, it does not thereby cease to have jurisdiction within the meaning of Article 1 of the Convention over that part of its territory temporarily subject to a local authority sustained by rebel forces or by another State.
Nevertheless, such a factual situation reduces the scope of that jurisdiction in that the undertaking given by the State under Article 1 must be considered by the Court only in the light of the Contracting State's positive obligations towards persons within its territory. The State in question must endeavour, with all the legal and diplomatic means available to it vis-à-vis foreign States and international organisations, to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention.
334. Although it is not for the Court to indicate which measures the authorities should take in order to comply with their obligations most effectively, it must 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 is to determine to what extent a minimum effort was nevertheless possible and whether it should have been made. Determining that question is especially necessary in cases concerning an alleged infringement of absolute rights such as those guaranteed by Articles 2 and 3 of the Convention.
335. Consequently, the Court concludes that the applicants are within the jurisdiction of the Republic of Moldova for the purposes of Article 1 of the Convention, but that its responsibility for the acts complained of, committed in the territory of the “ MRT ”, over which it exercises no effective authority, is to be assessed in the light of its positive obligations under the Convention.
4. Whether Moldova discharged its positive obligations
336. The Court must determine whether the Moldovan authorities discharged their positive obligations to secure the rights guaranteed by the Convention, or whether, as the applicants and the Romanian Government submitted, the Moldovan Government did not take enough measures to secure those rights.
337. In the present case, in view of the complexity of the factual situation, the Court considers in the first place that the question whether Moldova discharged its positive obligations is closely bound up both with relations between Moldova and the Russian Federation and with relations between Transdniestria and the Russian Federation. In addition, account has to be taken of the influence Moldova could exert through the Russian authorities to improve the applicants'situation in the Moldovan territory in Transdniestria.
338. The Court observes that it does not have jurisdiction to consider whether events prior to Moldova's ratification of the Convention were compatible with its provisions. It can, however, have regard to acts committed before the date of ratification when considering Moldova's positive obligations and use them for comparative purposes when assessing the efforts made by Moldova after 12 September 1997.
339. Moldova's positive obligations relate both to the measures needed to re-establish its control over Transdniestrian territory, as an expression of its jurisdiction, and to measures to ensure respect for the applicants'rights, including attempts to secure their release.
340. The obligation to re-establish control over Transdniestria required Moldova, firstly, to refrain from supporting the separatist regime of the “ MRT ”, and secondly to act by taking all the political, judicial and other measures at its disposal to re-establish its control over that territory.
It is not for the Court to indicate the most appropriate measures Moldova should have taken or should take to that end, or whether such measures were sufficient. It must only verify Moldova's will, expressed through specific acts or measures, to re-establish its control over the territory of the “ MRT ”.
341. In the present case, from the onset of hostilities in 1991-92, the Moldovan authorities never ceased complaining of the aggression they considered they had suffered and rejected the “ MRT ”'s declaration of independence.
In the Court's opinion, when confronted with a regime sustained militarily, politically and economically by a power such as the Russian Federation (see paragraphs 111 - 61 above), there was little Moldova could do to re-establish its authority over Transdniestrian territory. That was evidenced by the outcome of the military conflict, which showed that the Moldovan authorities did not have the means to gain the upper hand in Transdniestrian territory against the rebel forces supported by 14 th Army personnel.
342. The Moldovan authorities continued after the end of the hostilities in July 1992 to take steps to re-establish control over Transdniestria. From 1993 onwards, for example, they began to bring criminal proceedings against certain Transdniestrian officials accused of usurping titles corresponding to State offices (see paragraphs 167 and 229 - 30 above).
343. Moldova's efforts to re-establish its authority over the Transdniestrian region continued after 1994, its authorities having continued to assert their sovereignty over the territory controlled by the “ MRT ”, both internally and internationally (see paragraphs 31, 53, 6 6, 6 8, 6 9 and 7 7 - 8 3 above). In 1994 it adopted a new Constitution which provided, inter alia, for the possibility of granting a certain amount of autonomy to Transdniestria. In the same year, it signed with the Russian Federation an agreement for the withdrawal of Russian troops from Transdniestria within three years.
On 12 September 1997 it ratified the Convention and confirmed in its reservations to the Convention its intention to re-establish control over the region of Transdniestria.
344. These efforts continued after 1997, despite a reduction in the number of judicial measures intended to assert Moldovan authority in Transdniestria. The prosecutions of Transdniestrian officials were not followed up and were even discontinued in 2000, and a former dignitary of the Transdniestrian regime was permitted, after his return to Moldova, to hold high State office (see paragraph 16 8 above).
On the other hand, the efforts of the Moldovan authorities were directed more towards diplomatic activity. In March 1998 Moldova, the Russian Federation, Ukraine and the region of Transdniestria signed a number of instruments with a view to settling the Transdniestrian conflict. Meetings and negotiations took place between representatives of Moldova and the Transdniestrian regime. Lastly, from 2002 to the present, a number of proposals for the settlement of the conflict have been put forward and discussed by the President of Moldova, the OSCE and the Russian Federation (see paragraphs 10 7- 10 above).
The Court does not see in the reduction of the number of measures taken a renunciation on Moldova's part of attempts to exercise its jurisdiction in the region, regard being had to the fact that several of the measures previously tried by the Moldovan authorities had been blocked by “ MRT ” reprisals (see paragraphs 181 - 84 above).
The Court further notes that the Moldovan Government argued that their change of negotiating strategy towards diplomatic approaches aimed at preparing Transdniestria's return within the Moldovan legal order had been a response to demands expressed by the separatists during discussions on the settlement of the situation in Transdniestria and the applicants'release. They had accordingly abandoned the measures they had previously adopted, particularly in the legal sphere. The Court notes the witness evidence to that effect given by Mr Sturza (see Annex, §§ 309-14 ) and Mr Sidorov (see Annex, § 446).
345. In parallel with that change of strategy, relations were established between the Moldovan authorities and the Transdniestrian separatists. Economic cooperation agreements were concluded, relations were established between the Moldovan parliament and the “ parliament of the MRT ”, for several years there has been cooperation in police and security matters and there are forms of cooperation in other fields such as air traffic control, telephone links and sport (see paragraphs 114, 178 and 185 above).
The Moldovan Government explained that these cooperation measures had been taken by the Moldovan authorities out of a concern to improve the everyday lives of the people of Transdniestria and allow them to lead as nearly normal lives as possible. The Court, like the Moldovan Government, takes the view that, given their nature and limited character, these acts cannot be regarded as support for the Transdniestrian regime. On the contrary, they represent affirmation by Moldova of its desire to re-establish control over the region of Transdniestria.
346. As regards the applicants'situation, the Court notes that before ratification of the Convention in 1997 the Moldovan authorities took a number of judicial, political and administrative measures. These included:
– the Supreme Court's judgment of 3 February 1994 quashing the applicants'conviction of 9 December 1993 and setting aside the warrant for their detention (see paragraphs 22 2 - 2 3 above);
– the criminal proceedings brought on 28 December 1993 against the “judges” of the “Supreme Court of Transdniestria” (see paragraph 22 3 above);
– the amnesty declared by the President of Moldova on 4 August 1995 (see paragraph 22 6 above) and the Moldovan parliament's request of 3 October 1995 (see paragraph 22 7 above);
– the sending of doctors from Moldova to examine the applicants detained in Transdniestria (see paragraphs 23 9 and 26 3 above); and
– the financial assistance given to the applicants'families and the help they were given in arranging visits to the applicants (see paragraph 23 9 above).
During that period, as appears from the witness evidence, in discussions with the Transdniestrian leaders the Moldovan authorities also systematically raised the question of the applicants'release and respect for their Convention rights (see paragraphs 17 2 and 27 4 - 7 7 above). In particular, the Court notes the efforts made by the judicial authorities; for example, the Minister of Justice, Mr Sturza, made numerous visits to Transdniestria to negotiate with the Transdniestrian authorities for the applicants'release.
347. Even after 1997, measures were taken by Moldova to secure the applicants'rights : doctors were sent to Transdniestria to examine them (the last examination by doctors from Chişinău took place in 1999), their families continued to receive financial assistance from the authorities and Mr Sturza, the former Minister of Justice and Chairman of the Committee for Negotiations with Transdniestria, continued to raise the question of the applicants'release with the Transdniestrian authorities. In that connection, the Court notes that, according to the evidence of certain witnesses, Mr Ilaşcu's release was the result of lengthy negotiations with the “ MRT ” authorities. Moreover, it was following those negotiations that Mr Sturza went to Transdniestria in April 2001 to bring the four applicants back to Chişinău (see paragraph 274 above; Annex : Mr Sturza, § § 3 10- 12 ).
It is true that the Moldovan authorities did not pursue certain measures taken previously, particularly investigations in respect of persons involved in the applicants'conviction and detention. However, the Court considers that in the absence of control over Transdniestrian territory by the Moldovan authorities any judicial investigation in respect of persons living in Transdniestria or linked to offences committed in Transdniestria would be ineffectual. This is confirmed by the witness evidence on that point (see Annex : Mr Postovan, § 184; Mr Catană, § 208; and Mr Rusu, § 302 ).
Lastly, the Moldovan authorities have applied not only to the “ MRT ” regime but also to other States and international organisations for their assistance in obtaining the applicants'release (see Annex : Mr Moşanu, § 249).
348. The Court does not have any evidence that since Mr Ilaşcu's release in May 2001 effective measures have been taken by the authorities to put an end to the continuing infringements of their Convention rights complained of by the other three applicants. At least, apart from Mr Sturza's evidence to the effect that the question of the applicants'situation continues to be raised regularly by the Moldovan authorities in their dealings with the “ MRT ” regime, the Court has no other information capable of justifying the conclusion that the Moldovan Government have been diligent with regard to the applicants.
In their negotiations with the separatists, the Moldovan authorities have restricted themselves to raising the question of the applicants'situation orally, without trying to reach an agreement guaranteeing respect for their Convention rights (see Annex : Mr Sturza, §§ 310- 13).
Similarly, although the applicants have been deprived of their liberty for nearly twelve years, no overall plan for the settlement of the Transdniestrian conflict brought to the Court's attention deals with their situation, and the Moldovan Government did not claim that such a document existed or that negotiations on the subject were in progress.
349. Nor have the Moldovan authorities been any more attentive to the applicants'fate in their bilateral relations with the Russian Federation.
In the Court's opinion, the fact that at the hearing on 6 July 2001 the Moldovan Government refrained from arguing that the Russian Federation was responsible for the alleged violations on account of the presence of its army in Transdniestria, so as not to hinder the process “ aimed at ending ... the detention of the ... applicants ” (see paragraph 3 60 below ), amounted to an admission on their part of the influence the Russian authorities might have over the Transdniestrian regime if they were to urge it to release the applicants. Contrary to the position prior to May 2001, when the Moldovan authorities raised the question of the applicants'release with the Russian authorities, interventions to that end also seem to have ceased after that date.
In any event, the Court has not been informed of any approach by the Moldovan authorities to the Russian authorities after May 2001 aimed at obtaining the remaining applicants'release.
350. In short, the Court notes that the negotiations for a settlement of the situation in Transdniestria, in which the Russian Federation is acting as a guarantor State, have been ongoing since 2001 without any mention of the applicants and without any measure being taken or considered by the Moldovan authorities to secure to the applicants their Convention rights.
351. Having regard to all the material in its possession, the Court considers 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.
352. The Court accordingly concludes that Moldova's responsibility could be 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.
In order to determine whether Moldova's responsibility is indeed engaged under the Convention, the Court will therefore need to examine each of the complaints raised by the applicants.
II. WHETHER THE APPLICANTS COME WITHIN THE JURISDICTION OF THE RUSSIAN FEDERATION
A. Arguments submitted to the Court
1. The Government of the Russian Federation
353. The Russian Government submitted that the acts complained of did not come within the “jurisdiction” of the Russian Federation within the meaning of Article 1 of the Convention.
354. The Russian Federation had not exercised and did not exercise jurisdiction over the region of Transdniestria, which was a territory belonging to the Republic of Moldova. In particular, the Russian Federation had never occupied part of the Republic of Moldova and the armed forces stationed there were there with Moldova's agreement. The units of the 14 th Army had not interfered in the armed conflict between Moldova and Transdniestria, but by virtue of agreements between Moldova and the Russian Federation they had taken on peacekeeping duties and had thus prevented an aggravation of the conflict and an increase in the number of victims among the civilian population. Of course, when illegal armed actions, both by Transdniestria and by Moldova, had been committed against soldiers of the 14 th Army, they had been obliged to defend themselves.
It had not been possible to honour the undertaking given by the Russian Federation in 1994 to withdraw its military forces from the territory of the Republic of Moldova within three years from signature of the agreement, since this withdrawal did not depend on the Russian Federation alone. Firstly, the authorities of the “ MRT ” were opposed to it; secondly, technical considerations relating to the removal of military stores had to be taken into account. At the OSCE summit in Istanbul, the deadline had been put back to 31 December 2002, and the Russian Federation intended to honour the agreements reached at the summit.
355. The Russian Government submitted that the stationing of Russian troops in Transdniestria was not comparable with the presence of Turkish troops in the northern part of Cyprus, which the Court had dealt with in Loizidou and Cyprus v. Turkey ( both cited above ). The main difference lay in the number of troops, as the ROG had only 2,000 soldiers, whereas the Turkish forces had more than 30, 000 soldiers in northern Cyprus.
The ROG troops did not act together with or on behalf of the “ MRT ”, but had a peacekeeping mission, the objective of its commander being to preserve peace and stability in the region and guard the enormous quantity of weapons still stockpiled there. The peacekeeping forces observed the neutrality required by the agreement of 21 July 1992.
In short, the Russian military presence in the territory of the Republic of Moldova, with Moldova's consent, with the aim of preserving the peace there, could not engage the Russian Federation's responsibility for the purposes of Article 1 of the Convention.
356. The Russian Government categorically denied that they exercised, or had exercised in the past, any control whatsoever over Transdniestrian territory and pointed out that the “ MRT ” had set up its own power structures, including a parliament and a judiciary.
The Russian Federation did not exercise any economic control over the region of Transdniestria, which conducted its own independent economic policy within the Republic of Moldova, for example by exporting foodstuffs and alcohol with its own labels, but as products of the Republic of Moldova and following the rules applicable to each field of activity. Consequently, unlike the situation in northern Cyprus, the Transdniestrian regime was far from owing its survival to the Russian Federation. In the event of the total withdrawal of Russian troops, the Transdniestrian local authorities would have no difficulty in continuing to carry on their activities freely.
357. The Russian Federation had never given the authorities of Transdniestria the slightest military, financial or other support. It had never recognised and still did not recognise the “ MRT ”, as the region called itself. The Transdniestrian region was an integral part of the territory of the Republic of Moldova, just like Gagauzia.
The Government rejected the applicants'allegation that the Russian Federation had opened a consulate in Transdniestrian territory, but admitted that the subject had been on the agenda of discussions with the Republic of Moldova for a long time.
The agreement of 20 March 1998 on questions relating to the property of the 14 th Army ( see paragraph 29 9 above ) and other agreements on economic cooperation with the “ MRT ” were private-law contracts between two private parties and were not governed by international law. It could not be concluded on the strength of those agreements that the Russian Federation recognised the “ MRT ”.
Similarly, no conclusion could be drawn from Articles 7 and 13 of the agreement of 21 October 1994 between Moldova and the Russian Federation ( see paragraph 29 6 above ), which provided for joint use of Tiraspol military airport by the military aviation of the Russian Federation and the “civil aviation of the Transdniestrian region of the Republic of Moldova”, and the transfer “to the organs of the local public administrative authorities of the Republic of Moldova” of premises vacated or machine tools left behind as a result of the withdrawal of the Russian Federation's military formations. According to the Russian Government, the “Dniestrian region” was regarded in that case as a “business entity” carrying on its own activities inside a specific territory.
358. In the light of the statements made by the witnesses in Moldova, in particular the evidence of the former military prosecutor, Mr Timoshenko, the Russian Government admitted that the applicants had been detained in the premises of the 14 th Army, but asserted that this detention had been in breach of the ROG's disciplinary regulations and that it had been of very short duration, since Mr Timoshenko had immediately put a stop to the illegal situation. Consequently, in any event, a possible breach of legal provisions had been remedied and the applicants could not consider themselves victims.
As to the remaining allegations, the Russian Government asserted that there was no causal link between the presence of Russian military forces in the region of Transdniestria and the applicants'situation.
359. In their written observations of 24 October 2000, the Moldovan Government submitted that the responsibility of the Russian Federation could be engaged in the present case under Article 1 of the Convention, regard being had to the stationing of troops and equipment belonging to the Russian Federation in Transdniestrian territory. They relied in that connection on the Commission's decision in Cyprus v. Turkey (no. 8007/77, 10 July 1978, Decisions and Reports 13) and the Court's judgment in Loizidou ( preliminary objections ), cited above.
360. At the hearing on 6 June 2001, the Moldovan Government stated that they wished to modify the position they had previously adopted in their written observations of 24 October 2000 as regards the question whether the Russian Federation was responsible. They justified their new position with the claim that it was intended to “avert undesirable consequences, namely the halting of the process aimed at ending the Transdniestrian dispute and the detention of the other applicants”.
361. In their written observations of 1 October 2003, the Moldovan Government emphasised that the 14 th Army had taken an active part, both directly and indirectly, in the conflict of 1991- 92 on the separatists'side and had given them logistical and military support. The Moldovan Government considered that the Russian Federation was the successor State, in an international context, of the USSR and that it was therefore responsible for acts committed by organs of the USSR, in this case the 14 th Army, which had become the ROG, in particular the installation of the Transdniestrian separatist regime, and the consequences of those acts.
In addition, the Moldovan Government asserted that the responsibility of the Russian Federation had to be engaged on account of the participation of 14 th Army personnel in the arrest and interrogation of the applicants, their detention on 14 th Army premises and their transfer into the charge of the Transdniestrian separatists.
362. Consequently, the Moldovan Government considered that, in general, under Article 1 of the Convention, acts committed in the territory of Transdniestria came within the jurisdiction of the Russian Federation until the final settlement of the Transdniestrian dispute.
363. The Moldovan Government asserted that, while they were not opposed to the transfer to Transdniestria of some of the civilian equipment belonging to the ROG, they had always categorically opposed the transfer to the region of any type of armaments and military or dual-use technology (with both military and civilian applications).
As regards the meaning of the term “local public administrative authorities of the Transdniestrian region of the Republic of Moldova” found in certain agreements with the Russian Federation in which specific rights were conferred on those authorities, the Moldovan Government said that it referred to administrative bodies set up in accordance with the constitutional rules of the Republic of Moldova and subordinate to the central authorities. They categorically rejected the interpretation to the effect that the local authorities concerned in those agreements were those subordinate to the Tiraspol authorities.
364. The applicants submitted that the responsibility of the Russian Federation was engaged on account of a number of factors. These included the contribution made by the USSR and the Russian Federation to the creation of the “ MRT ”, the participation of Russian armed forces and Russian Cossacks in the armed conflict of 1991-92 between Moldova and the “ MRT ”, and the economic and political support given by the Russian Federation to the “ MRT ”.
365. In the first place, the Russian authorities had supported the Transdniestrian separatists both politically and by taking part in the armed conflict. In that connection, the applicants referred to the factual evidence of the Russian Federation's support that had been produced ( see paragraphs 1 11 - 36 above ) and the numerous appeals made in 1992 by the Moldovan authorities complaining of the 14 th Army's aggression against Moldovan territory. They also complained of public statements made by commanders of the 14 th Army and Russian leaders in the separatists'favour and of participation by those commanders in elections in Transdniestria, military parades by the Transdniestrian forces and other public events.
366. The applicants alleged that the Russian Federation had done nothing to prevent the Cossacks and other Russian mercenaries from travelling to Transdniestria to fight alongside the separatists. On the contrary, the Russian Federation had encouraged the mercenaries to do so, while the 14 th Army had armed and trained the Transdniestrian separatists.
367. The applicants submitted that the so-called organs of power of the “ MRT ” were in fact puppets of the Russian Government.
368. Moreover, they asserted that the “ MRT ” was recognised by the Russian Government. They referred in that connection to the agreement on the property of the 14 th Army concluded on 20 March 1998 between the Russian Federation and Transdniestria ( see paragraph 299 above ) and to the allegations that political parties of the Russian Federation had branches in Tiraspol, that the Ministry of Foreign Affairs of the Russian Federation had opened a consular office without the agreement of the Moldovan authorities and that the Transdniestrian leaders, including Mr Smirnov, Mr Mărăcuţă and Mr Caraman, held Russian passports.
369. Apart from its de facto recognition of the “ MRT ”, the Russian Federation supported the Tiraspol regime economically and financially, as evidenced by the above-mentioned agreement of 20 March 1998, which granted the “ MRT ” part of the income from the sale of the ROG's equipment, a reduction by the Russian authorities of Transdniestria's debt to them, economic relations between the Russian armaments manufacturer Rosvoorujenye and the Transdniestrian authorities, and the opening of accounts by the Bank of Transdniestria with the Russian Central Bank.
370. According to the applicants, such acts, combined with the de facto control exercised by the Russian Federation over Transdniestrian territory, engaged the responsibility of the Russian Federation with regard to the human rights violations committed there.
They relied on the Court's case-law in Loizidou ( preliminary objections), cited above, in support of their opinion that the Russian Federation could be held responsible for acts committed outside its territory, but in a region which it controlled.
They further relied on the case-law of the International Court of Justice, which had pointed out in its advisory opinion on the South African presence in Namibia that States were under an obligation to ensure that the acts of private individuals did not affect the inhabitants of the territory in question. They also referred to Kling, in which the General Claims Commission, set up by the United States and Mexico in 1923, had ruled that the State was responsible for rebellious conduct by its soldiers.
4. The Romanian Government, third-party intervener
371. The Romanian Government observed at the outset that the purpose of its intervention was to supply clarification of the facts and legal reasoning in support of the case of the applicants who were its nationals.
372. While accepting that the acts complained of had taken place, and were continuing, in the “ MRT ”, a part of Moldovan territory under the de facto authority of the separatist administration in Tiraspol, the Romanian Government emphasised the influence of Russian troops in the creation and continued existence of the Transdniestrian region outside the control of the Chişinău government.
They submitted that the 14 th Army had contributed to the creation of the separatist military forces. After the end of the conflict, the personnel of the 14 th Army had remained inside Moldovan territory.
373. The Romanian Government referred to the Convention institutions'case-law to the effect that a Contracting Party's responsibility can also be engaged when, as the result of military action, it exercises control in practice over an area outside its national territory ( see Cyprus v. Turkey, Commission decision, cited above; Loizidou ( preliminary objections), cited above; and Cyprus v. Turkey, Commission's report of 4 June 1999).
They submitted that the case-law concerned was wholly applicable to the facts of the present case, firstly on account of the participation of the forces of the 14 th Army in the military conflict during which Moldova had tried to re-establish its sovereign jurisdiction over the territory in question, and secondly because of the stationing of those troops in the “ MRT ”. It was of little consequence that the real number of Russian troops had been gradually reduced in proportion to the local authorities'progress in forming their own armed forces, since the element of dissuasion represented by the 14 th Army's continued presence in Moldovan territory remained.
374. Moreover, the organs of the Russian Federation exerted political influence over the secessionist authorities in Tiraspol.
375. The Romanian Government argued that a State was responsible for the acts committed by its organs, including abuses of authority, and referred on that point to certain declarations made by the Russian authorities, including President Yeltsin, and to the case of the Russian soldiers who had gone over to the separatists. In addition, they submitted that a State should also be held responsible for wrongful acts committed by private individuals where those acts were the result of a shortcoming on the part of the State's organs, whether in the form of a failure to prevent them, lack of control, or negligence.
376. The Court considers that the general principles summarised above ( see paragraphs 310 - 2 1 ) are relevant to the examination of the question whether the applicants come within the jurisdiction of the Russian Federation.
2. Application of the above principles
377. In the present case, the Court's task is to determine whether, regard being had to the principles set forth above (see, in particular, paragraphs 314 - 16), the Russian Federation can be held responsible for the alleged violations.
378. The Court notes at the outset that the Russian Federation is the successor State to the USSR under international law ( see paragraph 290 above ). It further notes that, when the CIS was set up, Moldova did not join in exercises by the CIS armed forces and later confirmed that it did not wish to take part in the military aspect of cooperation within the CIS ( see paragraphs 2 93 - 9 4 above ).
(a) Before ratification of the Convention by the Russian Federation
379. The Court notes that on 14 November 1991, when the USSR was being broken up, the young Republic of Moldova asserted a right to the equipment and weapons stocks of the USSR's 14 th Army which was stationed in its territory ( see paragraph 37 above ).
It also entered into negotiations with the Russian Federation with a view to the withdrawal of that army from its territory.
380. The Court observes that during the Moldovan conflict in 1991-92 forces of the 14 th Army (which owed allegiance to the USSR, the CIS and the Russian Federation in turn ) stationed in Transdniestria, an integral part of the territory of the Republic of Moldova, fought with and on behalf of the Transdniestrian separatist forces. Moreover, large quantities of weapons from the stores of the 14 th Army ( which later became the ROG ) were voluntarily transferred to the separatists, who were also able to seize possession of other weapons unopposed by Russian soldiers ( see paragraphs 48 - 13 6 above ).
The Court notes that from December 1991 onwards the Moldovan authorities systematically complained, to international bodies among others, of what they called “the acts of aggression” of the 14 th Army against the Republic of Moldova and accused the Russian Federation of supporting the Transdniestrian separatists.
Regard being had to the principle of States'responsibility for abuses of authority, it is of no consequence that, as the Russian Government submitted, the 14 th Army did not participate as such in the military operations between the Moldovan forces and the Transdniestrian insurgents.
381. Throughout the clashes between the Moldovan authorities and the Transdniestrian separatists, the leaders of the Russian Federation supported the separatist authorities by their political declarations ( see paragraphs 46, 7 5, 13 7 and 13 8 above ). The Russian Federation drafted the broad lines of the ceasefire agreement of 21 July 1992, and moreover signed it as a party.
382. In the light of all these circumstances, the Court considers that the Russian Federation's responsibility is engaged in respect of the unlawful acts committed by the Transdniestrian separatists, regard being had to the military and political support it gave them to help them set up the separatist regime and the participation of its military personnel in the fighting. In acting thus, the authorities of the Russian Federation contributed both militarily and politically to the creation of a separatist regime in the region of Transdniestria, which is part of the territory of the Republic of Moldova.
The Court also notes that even after the ceasefire agreement of 21 July 1992 the Russian Federation continued to provide military, political and economic support to the separatist regime ( see paragraphs 11 1 - 6 1 above ), thus enabling it to survive by strengthening itself and by acquiring a certain amount of autonomy vis-à-vis Moldova.
383. The Court further notes that in the context of the events mentioned above the applicants were arrested in June 1992 with the participation of soldiers of the 14 th Army ( subsequently the ROG ). The first three applicants were then detained on 14 th Army premises and guarded by 14 th Army troops. During their detention, these three applicants were interrogated and subjected to treatment which could be considered contrary to Article 3 of the Convention. They were then handed over into the charge of the Transdniestrian police.
Similarly, after his arrest by soldiers of the 14 th Army, the fourth applicant was handed over to the Transdniestrian separatist police, then detained, interrogated and subjected on police premises to treatment which could be considered contrary to Article 3 of the Convention.
384. The Court considers that on account of the above events the applicants came within the jurisdiction of the Russian Federation within the meaning of Article 1 of the Convention, although at the time when they occurred the Convention was not in force with regard to the Russian Federation.
This is because the events which gave rise to the responsibility of the Russian Federation must be considered to include not only the acts in which the agents of that State participated, like the applicants'arrest and detention, but also their transfer into the hands of the Transdniestrian police and regime, and the subsequent ill-treatment inflicted on them by those police, since in acting in that way the agents of the Russian Federation were fully aware that they were handing them over to an illegal and unconstitutional regime.
In addition, regard being had to the acts the applicants were accused of, the agents of the Russian Government knew, or at least should have known, the fate which awaited them.
385. In the Court's opinion, all of the acts committed by Russian soldiers with regard to the applicants, including their transfer into the charge of the separatist regime, in the context of the Russian authorities'collaboration with that illegal regime, are capable of engaging responsibility for the acts of that regime.
It remains to be determined whether that responsibility remained engaged and whether it was still engaged at the time of the ratification of the Convention by the Russian Federation.
( b) After ratification of the Convention by the Russian Federation
386. With regard to the period after ratification of the Convention on 5 May 1998, the Court notes the following.
387. The Russian army is still stationed in Moldovan territory in breach of the undertakings to withdraw it completely given by the Russian Federation at the OSCE summits in Istanbul (1999) and Porto (2001). Although the number of Russian troops stationed in Transdniestria has in fact fallen significantly since 1992 (see paragraph 131 above), the Court notes that the ROG's weapons stocks are still there.
Consequently, in view of the size of this arsenal (see paragraph 131 above), the ROG's military importance in the region and its dissuasive influence persist.
388. The Court further observes that by virtue of the agreements between the Russian Federation, on the one hand, and the Moldovan and Transdniestrian authorities respectively, on the other ( see paragraphs 11 2 - 20 and 12 3 above ), the “ MRT ” authorities were supposed to acquire the infrastructure and arsenal of the ROG at the time of its total withdrawal. It should be noted in that connection that the interpretation given by the Russian Government of the term “local administrative authorities ” of the region of Transdniestria, to be found, among other places, in the agreement of 21 October 1994 ( see paragraph 11 6 above ) is different from that put forward by the Moldovan Government, a fact which enabled the “ MRT ” regime to acquire that infrastructure.
389. As regards military relations, the Court notes that the Moldovan delegation to the Joint Control Commission constantly raised allegations of collusion between the ROG personnel and the Transdniestrian authorities regarding transfers of weapons to the latter. It notes that the ROG personnel denied those allegations in the presence of the delegates, declaring that some equipment could have found its way into the separatists'hands as a result of thefts.
Taking into account the accusations made against the ROG and the dangerous nature of its weapons stocks, the Court finds it hard to understand why the ROG troops do not have effective legal resources to prevent such transfers or thefts, as is apparent from their witness evidence to the delegates.
390. The Court attaches particular importance to the financial support enjoyed by the “ MRT ” by virtue of the following agreements it has concluded with the Russian Federation :
– the agreement signed on 20 March 1998 between the Russian Federation and the representative of the “ MRT ”, which provided for the division between the “ MRT ” and the Russian Federation of part of the income from the sale of the ROG's equipment;
– the agreement of 15 June 2001, which concerned joint work with a view to using armaments, military technology and ammunition;
– the Russian Federation's reduction by one hundred million United States dollars of the debt owed to it by the “ MRT ”; and
– the supply of Russian gas to Transdniestria on more advantageous financial terms than those given to the rest of Moldova ( see paragraph 15 6 above ).
The Court further notes the information supplied by the applicants and not denied by the Russian Government to the effect that companies and institutions of the Russian Federation normally controlled by the State, or whose policy is subject to State authorisation, operating particularly in the military field, have been able to enter into commercial relations with similar firms in the “ MRT ” ( see paragraphs 1 50 and 1 51 above ).
391. The Court also notes that, both before and after 5 May 1998, in the security zone controlled by the Russian peacekeeping forces, the “ MRT ” regime continued to deploy its troops illegally and to manufacture and sell weapons in breach of the agreement of 21 July 1992 ( see paragraphs 9 9, 100, 150 and 151 above ).
392. All of the above proves that the “ MRT ”, set up in 1991- 92 with the support of the Russian Federation, vested with organs of power and its own administration, remains under the effective authority, or at the very least under the decisive influence, of the Russian Federation, and in any event that it survives by virtue of the military, economic, financial and political support given to it by the Russian Federation.
393. That being so, the Court considers that there is 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, and after that date the Russian Federation 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.
Regard being had to the foregoing, it is of little consequence that since 5 May 1998 the agents of the Russian Federation have not participated directly in the events complained of in the present application.
394. In conclusion, the applicants therefore come within the “jurisdiction” of the Russian Federation for the purposes of Article 1 of the Convention and its responsibility is engaged with regard to the acts complained of.
III. THE COURT'S JURISDICTION RATIONE TEMPORIS
395. In their observations of 24 October 2000, the Moldovan Government submitted that the violations alleged by the applicants were continuous in nature and that the Court consequently had jurisdiction to examine them.
396. The Russian Government asserted that the acts complained of by the applicants had occurred before the Convention's entry into force with regard to Russia on 5 May 1998, and that they therefore fell outside the Court's jurisdiction ratione temporis.
397. The applicants submitted that the violations complained of were continuous in nature and that the Court accordingly had jurisdiction to examine them.
398. The Romanian Government presented no argument on the point.
399. The Court observes that the Convention came into force with regard to Moldova on 12 September 1997 and with regard to the Russian Federation on 5 May 1998. It points out that in respect of each Contracting Party the Convention applies only to events subsequent to its entry into force with regard to that Party.
A. The complaint under Article 6 of the Convention
400. The Court notes that the applicants asserted that they had not had a fair trial before the “Supreme Court of the MRT ”.
However, the proceedings before that court ended with the judgment of 9 December 1993 (see paragraph 215 above), before the dates on which the Convention was ratified by Moldova and the Russian Federation, and the trial is not a continuing situation.
Consequently, the Court does not have jurisdiction ratione temporis to examine the complaint under Article 6.
B. The complaints under Articles 3, 5 and 8 of the Convention
401. The applicants submitted that their detention was not lawful, since the judgment pursuant to which they had been detained, and in three cases still were detained, had not been given by a competent court. They alleged that while in Tiraspol Prison they had not been able to correspond freely or receive visits from their families. They also complained of their conditions of detention.
402. The Court notes that the alleged violations concern events which began with the applicants'incarceration in 1992, and are still ongoing.
403. The Court therefore has jurisdiction ratione temporis to examine the complaints made in so far as they concern events subsequent to 12 September 1997 as regards the Republic of Moldova and 5 May 1998 as regards the Russian Federation.
C. The complaint under Article 1 of Protocol No. 1
404. The applicants complained that they had been deprived of their possessions in breach of Article 1 of Protocol No. 1, since the judgment by which they had been thus deprived had been unlawful. They considered themselves victims of a continuing violation.
405. The Court notes that the applicants have not provided any details about enforcement of the confiscation decision which might enable it to determine whether the alleged violation is a continuing one. However, in view of its conclusion below ( see paragraph 474), it does not consider it necessary to determine whether it has jurisdiction ratione temporis to entertain this complaint.
D. Mr Ilaşcu's complaint under Article 2 of the Convention
406. Relying on Article 2, Mr Ilaşcu complained of the death penalty imposed on him, asserting that the sentence had not been set aside by the authorities which had imposed it and that it could be enforced at any time if he went to Transdniestria.
407. The Court observes that on 9 December 1993 the applicant was condemned to death by a court established by the Transdniestrian separatist authorities, which are not recognised by the international community. At the time when the Convention was ratified by the respondent States, the sentence had not been set aside by the authority which had passed it; it is therefore still operative.
408. Consequently, the Court has jurisdiction ratione temporis to examine this complaint.
IV. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
409. Mr Ilaşcu complained that he had been condemned to death by an unlawful court and alleged that he ran the risk of being executed at any time. The first paragraph of Article 2 of the Convention provides :
“Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”
A. Arguments submitted to the Court
410. The applicant submitted that the pardon decree signed by the “President of the MRT ” on 5 May 2001 was a forgery created with the sole purpose of deceiving the Court and that in fact the order by the “ MRT ” authorities condemning him to death remained in force.
He asserted in that connection that on 22 June 2001, after his release, the Moldovan authorities had declared that they were not in possession of any document recording the fact that he had been pardoned. It was only on 16 November 2001, in response to the additional questions raised by the Court, that the Government had supplied the Court with a copy of the pardon. The applicant said that on 5 May 2001 he had been “handed over” to the authorities of the Republic of Moldova by virtue of a transfer document given to the head of Moldovan intelligence by Mr Chevtsov, the “Minister of Security” of the “MRT”, a document which he had seen with his own eyes. In addition, Mr Chevtsov had said that the sentence remained valid and would be executed if Mr Ilaşcu returned to Transdniestria.
411. The Russian Government made no observations on the merits of the complaint.
412. The Moldovan Government did not deny that there had been a violation of the Article relied on by the applicant.
413. The Romanian Government submitted that since the Supreme Court of Moldova's judgment of 3 February 1994 setting the sentence aside had not yet been complied with, there remained a risk that Mr Ilaşcu would be executed if he went to Transdniestria.
414. The Court notes that Moldova ratified Protocol No. 6 to the Convention, abolishing the death penalty in peacetime, on 1 October 1997 and that it signed Protocol No. 13 to the Convention concerning the abolition of the death penalty in all circumstances on 3 May 2002. The Russian Federation has ratified neither Protocol No. 6 nor Protocol No. 13, but has declared a moratorium on enforcement of the death penalty.
415. The death penalty imposed on Mr Ilaşcu on 9 December 1993 by the “Supreme Court of the MRT ” was set aside by the Supreme Court of the Republic of Moldova on 3 February 1994, but to date that decision has had no effect ( see paragraph 22 2 above ).
It was only in November 2001 that the Moldovan Government submitted to the Court a copy of the decree of 5 May 2001 by the “President of the MRT ” pardoning the applicant ( see paragraph 28 1 above ). On the same occasion, the Moldovan Government informed the Court of rumours to the effect that Mr Smirnov had commuted the death penalty against Mr Ilaşcu to life imprisonment. The Court notes that the authenticity of the pardon granted by Mr Smirnov has been questioned by the applicant, who alleged that he had been simply handed over to the Moldovan authorities, that the sentence against him remained valid, and that he would therefore run the risk of being executed if he returned to Trandsniestria.
416. Regard being had to the evidence adduced before it, the Court is not in a position to establish either the exact circumstances of Mr Ilaşcu's release or whether the death penalty imposed on him has been commuted to life imprisonment (see paragraph 282 above).
Since Mr Ilaşcu has been released and is now living with his family in Romania, a country whose nationality he possesses and where he holds high office as a member of the Senate ( see paragraph 20 above ), the Court considers that the risk of enforcement of the death penalty imposed on him on 9 December 1993 is more hypothetical than real.
417. On the other hand, it is not disputed that after ratification of the Convention by the two respondent States, Mr Ilaşcu must have suffered as a consequence both of the death sentence imposed on him and of his conditions of detention while under the threat of execution of that sentence.
418. That being so, the Court considers that the facts complained of by Mr Ilaşcu do not call for a separate examination under Article 2 of the Convention, but would be more appropriately examined under Article 3 instead.
V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
419. The applicants complained of their conditions of detention and of the treatment that had been inflicted on them while they were detained. In addition, Mr Ilaşcu complained of his conditions of detention while under the threat of execution. They relied on Article 3 of the Convention, which provides :
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Arguments submitted to the Court
420. The applicants asserted that the particularly severe treatment to which they had been subjected during their detention had belittled and degraded them and had had disastrous effects on their physical and mental condition. In Mr Ilaşcu's case, account also had to be taken of the uncertainty he had had to live with regarding the possibility that the death penalty imposed on him would be enforced.
421. The Russian Government argued that the applicants'allegations had nothing to do with the Russian Federation and were in any event without foundation.
422. The Moldovan Government submitted in their observations of 24 October 2000 that the applicants'allegations about their conditions of detention were plausible.
423. In their third-party intervention, the Romanian Government submitted that the treatment undergone by the applicants during their detention could be classified as “torture” within the meaning of Article 3, in view of its deliberate and particularly vile nature and the fact that it had caused the applicants severe and cruel suffering.
424. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 of the Convention even in the event of a public emergency threatening the life of the nation ( see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V, and Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).
425. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them ( see, for example, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI).
426. In order to determine whether a particular form of ill-treatment should be qualified as torture, the Court must have regard to the distinction embodied in Article 3 between this notion and that of inhuman or degrading treatment. As it has previously found, it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering; the same distinction is drawn in Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (see Selmouni, cited above, § 97 ):
“For the purposes of this Convention, the term'torture'means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. ... ”
427. The Court has also held that the term “severe” is, like the “minimum severity” required for the application of Article 3, in the nature of things, relative ( ibid. , § 100): it, too, depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim ( see, among other authorities, Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002 ‑ VI, and Labita, cited above, § 120). Furthermore, in considering whether treatment is “degrading ” within the meaning of Article 3, the Court will have regard to whether its object was to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. Even the absence of such a purpose cannot conclusively rule out a finding of a violation of Article 3 ( see Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001-VIII).
428. The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty are usually accompanied by such suffering and humiliation. Article 3 requires the State to ensure that every prisoner is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured ( see Kudła, cited above, §§ 92-94).
429. The Court has previously held that, regard being had to developments in the criminal policy of the member States of the Council of Europe and the commonly accepted standards in that sphere, the death penalty might raise an issue under Article 3 of the Convention. Where a death sentence is passed, the personal circumstances of the condemned person, the proportionality to the gravity of the crime committed and the conditions of detention pending execution of the sentence are examples of factors capable of bringing the treatment or punishment received by the condemned person within the proscription under Article 3 ( see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 41, § 104, and Poltoratskiy v. Ukraine, no. 38812/97, § 133, ECHR 2003-V ).
430. For any prisoner condemned to death, some element of delay between imposition and execution of the sentence and the experience of severe stress in conditions necessary for strict incarceration are inevitable ( see Soering, cited above, p. 44, § 111). Nevertheless, in certain circumstances, the imposition of such a sentence might entail treatment going beyond the threshold set by Article 3, when for example a long period of time must be spent on death row in extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty ( ibid.)
431. Furthermore, the anxiety and suffering engendered by such a sentence can only be aggravated by the arbitrary nature of the proceedings which led to it, so that, considering that a human life is at stake, the sentence thus becomes a violation of the Convention.
432. Prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment. On the other hand, complete sensory isolation, coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason ( see, among other authorities, Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999-V).
433. Moreover, when assessing conditions of detention, account has to be taken of the cumulative effects of these conditions and of specific allegations made by the applicant ( see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II).
2. Application of the above principles in the present case
434. The applicant was sentenced to death on 9 December 1993 and detained until his release on 5 May 2001 (see paragraphs 215 and 234 above).
The Court reiterates that the Convention is not binding on Contracting States save in respect of events that have occurred since its entry into force, the relevant dates being 12 September 1997 for Moldova and 5 May 1998 for the Russian Federation. However, in order to assess the effect on the applicant of his conditions of detention, which remained more or less identical throughout the time he spent in prison, the Court may also take into consideration the whole of the period in question, including that part of it which preceded the Convention's entry into force with regard to each of the respondent States.
435. During the very long period he spent on death row, the applicant lived in the constant shadow of death, in fear of execution. Unable to exercise any remedy, he lived for many years, including the time after the Convention's entry into force, in conditions of detention likely to remind him of the prospect of his sentence being enforced ( see paragraphs 19 6 - 2 10 and 2 40 - 5 3 above ).
In particular, the Court notes that after sending a letter to the Moldovan parliament in March 1999 Mr Ilaşcu was savagely beaten by the warders at Tiraspol Prison, who threatened to kill him (see paragraphs 249, 250, 269 and 270 above). After that incident, he was denied food for two days and light for three (see paragraph 271 above).
As to the mock executions which took place before the Convention's entry into force (see paragraph 198 above), there is no doubt that the effect of such barbaric acts was to increase the anxiety felt by the applicant throughout his detention about the prospect of his execution.
436. The anguish and suffering he felt were aggravated by the fact that the sentence had no legal basis or legitimacy for Convention purposes. The “Supreme Court of the MRT ” which passed sentence on Mr Ilaşcu was set up by an entity which is illegal under international law and has not been recognised by the international community. That “court” belongs to a system which can hardly be said to function on a constitutional and legal basis reflecting a judicial tradition compatible with the Convention. That is evidenced by the patently arbitrary nature of the circumstances in which the applicants were tried and convicted, as they described them in an account which has not been disputed by the other parties ( see paragraphs 21 2 - 1 6 above ), and as described and analysed by the institutions of the OSCE ( see paragraph 28 6 above ).
437. The judgment of the Supreme Court of Moldova setting aside the applicant's conviction (see paragraph 222 above) confirmed the unlawful and arbitrary nature of the judgment of 9 December 1993.
438. As regards the applicant's conditions of detention while on death row, the Court notes that Mr Ilaşcu was detained for eight years, from 1993 until his release in May 2001, in very strict isolation : he had no contact with other prisoners, no news from the outside – since he was not permitted to send or receive mail – and no right to contact his lawyer or receive regular visits from his family. His cell was unheated, even in severe winter conditions, and had no natural light source or ventilation. The evidence shows that Mr Ilaşcu was also deprived of food as a punishment and that in any event, given the restrictions on receiving parcels, even the food he received from outside was often unfit for consumption. The applicant could take showers only very rarely, often having to wait several months between one and the next. On this subject the Court refers to the conclusions in the report produced by the CPT following its visit to Transdniestria in 2000 ( see paragraph 28 9 above ), in which it described isolation for so many years as indefensible.
The applicant's conditions of detention had deleterious effects on his health, which deteriorated in the course of the many years he spent in prison. Thus, he did not receive proper care, having been deprived of regular medical examinations and treatment ( see paragraphs 253, 2 58 - 60, 262 - 63 and 26 5 above ) and dietetically appropriate meals. In addition, owing to the restrictions on receiving parcels, he could not be sent medicines and food to improve his health.
439. The Court notes with concern the existence of rules granting a discretionary power in relation to correspondence and prison visits, exercisable by both prison warders and other authorities, and emphasises that such rules are arbitrary and incompatible with the appropriate and effective safeguards against abuses which any prison system in a democratic society must put in place. Moreover, in the present case, such rules made the applicant's conditions of detention even harsher.
440. The Court concludes that the death sentence imposed on the applicant coupled with the conditions he was living in and the treatment he suffered during his detention after ratification, account being taken of the state he was in after spending several years in those conditions before ratification, were particularly serious and cruel and must accordingly be considered acts of torture within the meaning of Article 3 of the Convention.
There has therefore been a failure to observe the requirements of Article 3.
441. As Mr Ilaşcu was detained at the time when the Convention came into force with regard to the Russian Federation, on 5 May 1998, the latter is responsible, for the reasons set out above ( see paragraph 393 above ) on account of his conditions of detention, the treatment inflicted on him and the suffering caused to him in prison.
Mr Ilaşcu was released in May 2001 and it is only from that date onwards that Moldova's responsibility is engaged on account of the acts complained of for failure to discharge its positive obligations ( see paragraph 35 2 above ). Consequently, there has been no violation of Article 3 of the Convention by Moldova with regard to Mr Ilaşcu.
442. In conclusion, the violation of Article 3 of the Convention with regard to Mr Ilaşcu is imputable only to the Russian Federation.
( b) The other three applicants : conditions of detention and treatment during detention
443. The Court notes at the outset that at no time in the proceedings before it have the respondent Governments denied that the alleged incidents took place.
It further considers that the descriptions given by Mr Ivanţoc are sufficiently precise and are corroborated by identical assertions repeatedly made by him to his wife and by the evidence given by other witnesses to the Court's delegates.
In the light of all the information at its disposal, the Court considers that it can take it as established that during the applicant's detention, including that part of it which followed the Convention's entry into force with regard to the respondent States, the applicant received a large number of blows and other ill-treatment, and that at times he was denied food and all forms of medical assistance in spite of his state of health, which had been weakened by these conditions of detention. In particular, the Court draws attention to the persecution and ill-treatment to which Mr Ivanţoc was subjected in May 1999 after lodging his application to the Court ( see paragraphs 25 1 - 5 2 above ), and in 2001, November 2002 and February 2003 ( see paragraphs 25 4, 25 6 and 269 - 7 2 above ).
444. In addition, Mr Ivanţoc has been detained since his conviction in 1993 in solitary confinement, without contact with other prisoners and without access to newspapers. He is not permitted to see a lawyer, his only contact with the outside world taking the form of visits and parcels from his wife, subject to authorisation by the prison authorities when they see fit to give it.
All these restrictions, which have no legal basis and are imposed at the authorities'discretion, are incompatible with a prison regime in a democratic society. They have played their part in increasing the applicant's distress and mental suffering.
445. The applicant is detained in an unheated, badly ventilated cell without natural light, and has not received the treatment required by his state of health, despite a few medical examinations authorised by the prison authorities. On that subject, the Court refers to the conclusions in the report produced by the CPT following its visit to Transdniestria in 2000 ( see paragraph 289 above ).
446. In the Court's opinion, such treatment was such as to engender pain or suffering, both physical and mental, which could only be exacerbated by the applicant's total isolation and were calculated to arouse in him feelings of fear, anxiety and vulnerability likely to humiliate and debase him and break his resistance and will.
In the Court's opinion, this treatment was inflicted on Mr Ivanţoc intentionally by persons belonging to the administrative authorities of the “ MRT ” with the aim of punishing him for the acts he had allegedly committed.
447. That being so, the Court considers that, taken as a whole and regard being had to its seriousness, its repetitive nature and its purpose, the treatment inflicted on Mr Ivanţoc has caused “severe” pain and suffering and was particularly serious and cruel. All these acts must be considered acts of torture within the meaning of Article 3 of the Convention.
448. As Mr Ivanţoc was detained at the time when the Convention came into force with regard to the Russian Federation, the latter is responsible, for the reasons set out above (see paragraph 393 ) on account of his conditions of detention, the treatment inflicted on him and the suffering caused to him in prison.
Regard being had to the conclusions the Court reached on the question of Moldova's responsibility for the acts complained of on account of its failure to discharge its positive obligations after May 2001 (see paragraph 3 52 above), Moldova is responsible for a violation of Article 3 of the Convention with regard to Mr Ivanţoc from that date onwards.
449. In conclusion, as regards Mr Ivanţoc, there has been a violation of Article 3 of the Convention by the Russian Federation from the time of its ratification of the Convention on 5 May 1998 and by Moldova from May 2001 onwards.
(ii) Mr Leşco and Mr Petrov-Popa
450. The Court notes at the outset that at no time in the proceedings before it have the respondent Governments denied that the alleged incidents took place.
It further considers that the descriptions given by the witnesses heard, including the applicants and their wives, are sufficiently precise and are corroborated by other evidence in its possession.
451. Consequently, the Court considers that it can take it as established that during their detention, including that part of it which followed the Convention's entry into force with regard to the two respondent States, Mr Leşco and Mr Petrov-Popa experienced extremely harsh conditions of detention :
– visits and parcels from their families were subject to the discretionary authorisation of the prison administration;
– at times they were denied food, or given food unfit for consumption, and most of the time they were denied all forms of appropriate medical assistance despite their state of health, which had been weakened by these conditions of detention; and
– they were not given the dietetically appropriate meals prescribed by their doctors ( see paragraph 26 5 above ).
The Court emphasises also that these conditions have deteriorated since 2001 ( see paragraph 2 54 above ).
In addition, Mr Petrov-Popa has been held in solitary confinement since 1993, having no contact with other prisoners or access to newspapers in his own language (see paragraphs 240, 254 and 255 above).
Both Mr Petrov-Popa and Mr Leşco were denied access to a lawyer until June 2003 (see paragraph 257 above).
452. In the Court's opinion, such treatment is such as to engender pain or suffering, both physical and mental. Taken as a whole and regard being had to its seriousness, the treatment inflicted on Mr Leşco and Mr Petrov- Popa can be qualified as inhuman and degrading treatment within the meaning of Article 3 of the Convention.
453. As Mr Leşco and Mr Petrov-Popa were detained at the time when the Convention came into force with regard to the Russian Federation, the latter is responsible, for the reasons set out above (see paragraph 393 ) on account of their conditions of detention, the treatment inflicted on them and the suffering caused to them in prison.
Regard being had to the conclusions the Court reached on the question of Moldova's responsibility for the acts complained of on account of its failure to discharge its positive obligations after May 2001 (see paragraph 3 52 above), Moldova is responsible for the violation of Article 3 of the Convention with regard to Mr Leşco and Mr Petrov-Popa from May 2001 onwards.
454. In conclusion, as regards Mr Leşco and Mr Petrov-Popa, there has been a violation of Article 3 of the Convention by the Russian Federation from the time of its ratification of the Convention on 5 May 1998 and by Moldova from May 2001 onwards.
VI. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
455. The applicants alleged that their detention had not been lawful and that the court which had convicted them was not a competent court. They relied on Article 5 § 1 of the Convention, the relevant part of which provides :
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
456. The Russian Government submitted that the applicants'allegations had nothing to do with the Russian Federation and were in any event without foundation.
457. In their observations of 24 October 2000, the Moldovan Government emphasised that the applicants had been arrested without a warrant and that they had remained for two months in the cells of the 14 th Army headquarters building. At the hearing on 6 June 2001, they stated that they wished to modify the position they had previously adopted, but did not express an opinion on the alleged violations.
458. In their third-party intervention, the Romanian Government submitted that the applicants'detention had no legal basis, since they had been sentenced by an unlawfully constituted court. Although certain acts of the separatist authorities, such as acts relating to the registration of births, deaths and marriages, had to be recognised so as not to worsen the situation of the inhabitants ( see the ICJ's advisory opinion of 21 June 1971 on the legal consequences for States of the continued presence of South Africa in Namibia notwithstanding Security Council Resolution 276), that should not apply to all the acts of authorities not recognised by the international community, otherwise those authorities would be legitimised.
In the present case, the applicants'conviction had been the result of a flagrant denial of justice, since they had not had a fair trial before the “Supreme Court of the MRT ”.
459. The Court does not have jurisdiction ratione temporis to rule on the question whether the criminal proceedings in the course of which the applicants were convicted by the “Supreme Court of the MRT ” breached Article 6 of the Convention. In so far as the applicants'detention continued after the dates on which the Convention was ratified by the two respondent States, the Court nevertheless has jurisdiction to determine whether, thereafter, each of the applicants was detained “lawfully”, “in accordance with a procedure prescribed by law” and “after conviction by a competent court” within the meaning of Article 5 § 1 ( a) of the Convention.
460. As is well established in the Court's case-law, the word “ tribunal ” used in the French text of Article 5 (court) and other Articles of the Convention, in particular Article 6 (tribunal), refers in the first place to a body “established by law” satisfying a number of conditions which include independence, particularly vis-à-vis the executive, impartiality, the duration of its members'terms of office and guarantees of a judicial procedure ( see De Wilde, Ooms and Versyp v. Belgium, judgment of 1 8 June 1971, Series A no. 12, p. 41, § 78).
In certain circumstances, a court belonging to the judicial system of an entity not recognised under international law may be regarded as a tribunal “established by law” provided that it forms part of a judicial system operating on a “constitutional and legal basis” reflecting a judicial tradition compatible with the Convention, in order to enable individuals to enjoy the Convention guarantees ( see, mutatis mutandis, Cyprus v. Turkey, cited above, §§ 231 and 236- 37).
461. The requirement of lawfulness laid down by Article 5 § 1 ( a) ( “lawful detention” ordered “in accordance with a procedure prescribed by law” ) is not satisfied merely by compliance with the relevant domestic law; domestic law must itself be in conformity with the Convention, including the general principles expressed or implied in it, particularly the principle of the rule of law, which is expressly mentioned in the Preamble to the Convention. The notion underlying the expression “in accordance with a procedure prescribed by law” is one of fair and proper procedure, namely that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary ( see, among other authorities, Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, pp. 19-20, § 45).
In addition, as the purpose of Article 5 is to protect the individual from arbitrariness ( see, among other authorities, Stafford v. the United Kingdom [GC], no. 46295/99, § 63, ECHR 2002-IV), a “ conviction ” cannot be the result of a flagrant denial of justice ( see, mutatis mutandis, Drozd and Janousek v. France and Spain, judgment of 2 6 June 1992, Series A no. 240, pp. 34-35, § 110).
The Court also refers to its conclusions under Article 3 of the Convention regarding the nature of the proceedings in the “ Supreme Court of the MRT ” ( see paragraph 4 36 above ).
462. The Court accordingly finds that none of the applicants was convicted by a “court”, and that a sentence of imprisonment passed by a judicial body such as the “ Supreme Court of the MRT ” at the close of proceedings like those conducted in the present case cannot be regarded as “lawful detention” ordered “in accordance with a procedure prescribed by law”.
463. That being so, the deprivation of liberty suffered by the applicants during the period covered by the Court's jurisdiction ratione temporis in respect of the respondent States (namely, as regards Mr Ilaşcu, from 12 September 1997 to 5 May 2001 for Moldova, and from 5 May 1998 to 5 May 2001 for Russia and, as regards the other applicants, from the date of ratification by each of the respondent States to the present date) cannot satisfy the conditions laid down in paragraph 1 (a) of Article 5 of the Convention.
It follows that there was a violation of Article 5 § 1 of the Convention until May 2001 as regards Mr Ilaşcu, and that there has been and continues to be a violation of that provision as regards the three applicants still being detained.
464. Having regard to the fact that the applicants were detained at the time of the Convention's entry into force with regard to the Russian Federation, and taking into account its findings above (see paragraph 393 ), the Court concludes that the conduct constituting a violation of Article 5 is imputable to the Russian Federation as regards all the applicants.
Taking into account its conclusion above ( see paragraph 352 ) that the responsibility of the Republic of Moldova by virtue of its positive obligations could be engaged from May 2001, the Court finds that there has been no violation of Article 5 of the Convention by Moldova as regards Mr Ilaşcu. On the other hand, there has been a violation of that provision by Moldova as regards the other three applicants.
VII. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
465. The applicants complained that they could not correspond freely with their families and with the Court. In particular, they asserted that they had not been able to apply to the Court freely, and that in order to do so they had had to call on the assistance of their wives. They further complained that they could not receive visits from their families except with the prior agreement of the “President of the MRT ”. They relied on Article 8 of the Convention, the relevant parts of which provide :
“1. Everyone has the right to respect for his private and family life, ... and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety ..., for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
466. The Russian Government confined their observations to the assertion that the applicants'allegations had nothing to do with the Russian Federation and were in any event without foundation.
467. In their observations of 24 October 2000, the Moldovan Government said that the applicants had not had access to a lawyer, that the representatives of international organisations had been refused permission to see them and that they could not correspond freely from prison. At the hearing on 6 June 2001, they stated that they wished to modify the position they had previously adopted, but did not express an opinion on the alleged violations.
468. The Romanian Government submitted that the interference with the applicants'right to respect for their correspondence and family life was not in accordance with the law within the meaning of Article 8 § 2, firstly because the Soviet law applied in the “ MRT ” was not a valid law in Moldovan territory, and secondly because the prior agreement of the “President of the MRT ” could not be equated with a law, for lack of any safeguard against arbitrariness.
469. The Court considers that this complaint is limited to the fact that it was impossible for the applicants to write freely to their families and the Court from prison and to the difficulties they encountered in receiving visits from their families. As to the complaint relating to the impossibility of applying to the Court from prison, this falls more naturally under Article 34 of the Convention, which the Court will examine separately.
470. However, having taken these allegations into account in the context of Article 3 of the Convention ( see paragraphs 4 38, 4 39, 444 and 4 5 1 above ), the Court considers that it is not necessary to examine them separately from the standpoint of Article 8.
VIII. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
471. The applicants complained, under Article 1 of Protocol No. 1, of the confiscation of their possessions following a trial which breached Article 6 of the Convention.
472. The Russian Government submitted that the applicants'allegations had nothing to do with the Russian Federation and were in any event without foundation.
473. The Moldovan and Romanian Governments did not express an opinion.
474. Even on the supposition that it has jurisdiction ratione temporis to rule on this complaint, the Court notes that its factual basis is insufficient.
As the complaint has not been substantiated, the Court therefore considers that there has been no violation of Article 1 of Protocol No. 1.
IX. ALLEGED FAILURE TO OBSERVE ARTICLE 34 OF THE CONVENTION
475. The applicants complained of interference with their exercise of the right of individual application to the Court and relied on Article 34 of the Convention, which provides :
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
476. The applicants submitted in the first place that they had not been permitted to apply to the Court from prison so that their wives had had to do it on their behalf. They also alleged that they had been persecuted in prison because they had tried to apply to the Court.
They further submitted that the statement by the President of Moldova, Mr Voronin, that Mr Ilaşcu's refusal to withdraw his application had been the cause of the remaining applicants'continued detention ( see paragraph 28 5 above ) had been a flagrant interference with their right of individual petition.
Lastly, they submitted that the note from the Russian Ministry of Foreign Affairs ( see paragraph 27 8 above ) had been a serious interference with their right of individual petition.
477. The Moldovan Government confirmed Mr Voronin's observations, but asserted that these had been prompted by Mr Ilaşcu remarking during a discussion with Mr Voronin that he would be prepared to withdraw the part of his application directed against Moldova provided that the Moldovan authorities proved through their actions their desire to see the other three applicants released. The Moldovan Government argued that in those circumstances the accusations against Mr Voronin were intended to tarnish Moldova's image rather than to complain of interference with the applicants'right of individual petition.
478. The Russian Government said that the applicants had obtained the above-mentioned note fraudulently and that it could not therefore be relied on before the Court.
479. The Romanian Government submitted that the acts of intimidation directed against Mr Ilaşcu to punish him for lodging the present application constituted interference with the right of individual petition guaranteed by Article 34.
480. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 of the Convention that applicants and potential applicants are able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints ( see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1219, § 105, and Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2288, § 105).
The expression “any form of pressure” must be taken to cover not only direct coercion and flagrant acts of intimidation but also improper indirect acts or contact designed to dissuade or discourage applicants from pursuing a Convention remedy ( see Kurt v. Turkey, judgment of 25 May 1998, Reports 1998-III, pp. 1192 -93, § 160).
Moreover, the question whether contact between the authorities and an applicant constitutes an unacceptable practice from the standpoint of Article 34 must be determined in the light of the particular circumstances of the case. In that connection, the Court must assess the vulnerability of the complainant and the risk of his being influenced by the authorities ( see Akdivar and Others, p. 1219, § 105, and Kurt, pp. 1192- 93, § 160, both cited above ).
481. In the present case, the applicants have asserted that they had not been able to apply to the Court from their place of detention, that their application had in fact been lodged by the only lawyer who was representing them at the beginning of the proceedings, Mr Tănase, and that it had been signed by their wives.
The Court has also had regard to the threats made against the applicants by the Transdniestrian prison authorities and the deterioration in their conditions of detention after their application was lodged. It takes the view that such acts constitute an improper and unacceptable form of pressure which hindered their exercise of the right of individual petition.
In addition, the Court notes with concern the content of the diplomatic note of 19 April 2001 sent by the Russian Federation to the Moldovan authorities (see paragraph 278 above). It appears from that note that the Russian authorities requested that the Republic of Moldova withdraw the observations they had submitted to the Court on 24 October 2000 in so far as these implied responsibility for the alleged violations on the part of the Russian Federation on account of the fact that its troops were stationed in Moldovan territory, in Transdniestria.
Subsequently, at the hearing on 6 June 2001, the Moldovan Government did indeed declare that it wished to withdraw the part of its observations of 24 October 2000 concerning the Russian Federation ( see paragraph 3 60 above ).
The Court considers that such conduct on the part of the Government of the Russian Federation represented a negation of the common heritage of political traditions, ideals, freedom and the rule of law mentioned in the Preamble to the Convention and was capable of seriously hindering its examination of an application lodged in exercise of the right of individual petition and thereby interfering with the right guaranteed by Article 34 of the Convention itself.
There has therefore been a breach by the Russian Federation of Article 34 of the Convention.
482. The Court further notes that after Mr Ilaşcu's release he spoke to the Moldovan authorities about the possibility of obtaining the release of the other applicants, and that in that context Mr Voronin publicly accused Mr Ilaşcu of being the cause of his comrades'continued detention, through his refusal to withdraw his application against Moldova and the Russian Federation.
In the Court's opinion, such remarks by the highest authority of a Contracting State, making an improvement in the applicants'situation depend on withdrawal of the application lodged against that State or another Contracting State, represent direct pressure intended to hinder exercise of the right of individual petition. That conclusion holds good whatever the real or theoretical influence that authority might have on the applicants'situation.
Consequently, Mr Voronin's remarks amount to an interference by the Republic of Moldova with the applicants'exercise of their right of individual petition, in breach of Article 34 of the Convention.
X. APPLICATION OF ARTICLE 41 OF THE CONVENTION
483. Article 41 of the Convention provides :
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
484. The applicants submitted their claims for just satisfaction in November 2001.
In a letter received by the Court on 12 February 2004, Mr Tănase submitted the new claims of his client, Mr Leşco, updated in order to take account of the period since 2001.
Mr Gribincea did likewise for the other applicants in a letter received by the Court on 24 February 2004.
485. The applicants contended that their conviction and detention had caused them to lose their jobs. Similarly, on account of the persecution to which their husbands had been subjected, Mrs Ilaşcu and Mrs Ivanţoc had had to resign from their jobs in Tiraspol and move to Chişinău. In addition, Mr Leşco's family had had to leave their home in Tiraspol and look for new accommodation. The applicants claimed reimbursement of all the sums their wives and families had spent in order to visit them in prison and send them parcels. Lastly, in view of the deterioration of their physical health, the applicants had had large medical bills.
In particular, the applicants claimed the following sums.
Mr Ilaşcu claimed 1, 861 euros (EUR) for loss of salary and other allowances on account of his detention from June 1992 until 28 February 1994, the date on which he was elected to the Moldovan parliament. He said that the allowances he was entitled to as a member of parliament had been paid to his family by the Moldovan Government. Mr Ivanţoc claimed EUR 9,560 for loss of earnings and allowances from his arrest to date. Mr Petrov-Popa claimed EUR 21,510 for loss of income from his arrest to date. Mr Leşco claimed EUR 30,000, that being the value of the flat he had owned in Tiraspol which he had lost following his conviction and his family's departure from Transdniestria.
Mr Ilaşcu, Mr Ivanţoc and Mr Petrov-Popa argued that, as only the Russian Federation controlled Transdniestrian territory, the Russian Federation alone should compensate them for pecuniary damage.
Taking into account the seriousness of the violations complained of, the circumstances of the case, the attitude of the respondent Governments, the lasting effects on their health and the trauma they had suffered, the applicants claimed the following sums for non-pecuniary damage: Mr Ilaşcu, EUR 7,395,000; Mr Ivanţoc, EUR 7,842,000; Mr Petrov-Popa, EUR 7,441,000; and Mr Leşco, EUR 7,800,000.
With regard to the sums claimed for non-pecuniary damage, Mr Ilaşcu, Mr Ivanţoc and Mr Petrov-Popa said that they would be satisfied if the Moldovan Government paid each of them EUR 1,000 and the Russian Federation paid them the remainder.
In short, taking all the heads of pecuniary and non-pecuniary damage together, the applicants claimed the following sums: Mr Ilaşcu, EUR 7,396,861; Mr Ivanţoc, EUR 7,851,560; Mr Petrov-Popa, EUR 7,462,510; and Mr Leşco, EUR 7,830,000.
486. The Moldovan Government said that they were not opposed to the claims made by Mr Ilaşcu, Mr Ivanţoc and Mr Petrov-Popa, in so far as it appeared therefrom that they would have to pay EUR 1,000 to each of them. On the other hand, it found the sums claimed by Mr Leşco excessive and unsubstantiated.
The Russian Government said that they could not be held responsible for the alleged violations. Moreover, they contended that the facts the applicants complained of fell outside the Court's jurisdiction ratione temporis.
In any event, they considered the sums claimed excessive and unsubstantiated.
487. The Court reiterates that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which it finds a breach imposes on the respondent State a legal obligation under that provision to put an end to the breach and to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. If, on the other hand, national law does not allow – or allows only partial – reparation to be made for the consequences of the breach, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate. It follows, inter alia, that a judgment in which the Court finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and make all feasible reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Assanidze v. Georgia [GC], no. 71503/01, § 198, ECHR 2004 -II; Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004 -I; Menteş and Others v. Turkey (Article 50), judgment of 24 July 1998, Reports 1998-IV, p. 1695, § 24; and Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII).
488. The Court reiterates that it has found violations of several Convention provisions by the Russian Federation and Moldova, the latter only since May 2001.
It has found that Mr Ilaşcu and Mr Ivanţoc were subjected to treatment which it qualified as torture within the meaning of Article 3 of the Convention, that the other two applicants were subjected to inhuman and degrading treatment contrary to Article 3, that all the applicants were detained arbitrarily contrary to Article 5 and that Mr Ivanţoc, Mr Leşco and Mr Petrov-Popa are still detained in breach of Article 5.
The Court has also found that Article 34 of the Convention was breached by both the Russian Federation and Moldova.
489. The Court does not consider the alleged pecuniary damage to have been substantiated, but it does not find it unreasonable to suppose that the applicants suffered a loss of income and certainly incurred costs which were directly due to the violations found. It also takes the view that as a result of the violations found the applicants undeniably suffered non-pecuniary damage which cannot be made good merely by the finding of a violation.
Consequently, regard being had to the extreme seriousness of the violations of the Convention of which the applicants were victims, and ruling on an equitable basis, as required by Article 41 of the Convention, the Court awards them the following sums, plus any amount that may be chargeable in tax:
(a) to each applicant, EUR 1 80 ,000 for pecuniary and non-pecuniary damage arising from the violations of Articles 3 and 5 of the Convention;
(b) to each applicant, EUR 10,000 for non-pecuniary damage arising from the breach of Article 34 by the Russian Federation and Moldova.
490. The Court further considers that any continuation of the unlawful and arbitrary detention of the three applicants would necessarily entail a serious prolongation of the violation of Article 5 found by the Court and a breach of the respondent States'obligation under Article 46 § 1 of the Convention to abide by the Court's judgment.
Regard being had to the grounds on which they have been found by the Court to be in violation of the Convention (see paragraphs 352 and 393 above), 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.
491. For their lawyers'fees, Mr Ilaşcu claimed EUR 8,000 and Mr Ivanţoc and Mr Petrov-Popa EUR 8,500 each. They also asked for EUR 2,500 in respect of various costs.
As appears from the contract between Mr Leşco's wife and his lawyer, Mr Leşco claimed in addition EUR 200 per month for work by his counsel, making a total of EUR 11, 800. That sum represents his counsel's work and expenses since June 1999, when the application was lodged, a period of fifty-nine months, the main items being drafting the application, documentary searches, drafting observations requested by the Court, preparation for the Court's fact-finding mission, studying the records of the hearings before the Court's delegates, communication costs ( faxes, telephone bills, normal and urgent mail ), translation costs and expenses for visits to the applicants in prison.
492. The Moldovan Government opposed the award of the sums claimed for costs and expenses on the ground that they had not been substantiated.
493. The Court reiterates that, in order for costs and expenses to be included in an award under Article 41, it must be established that they were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and are reasonable as to quantum (see, for example, Kalashnikov, cited above, § 146).
The Court notes that the present case gave rise to several series of written observations, an adversarial hearing and the hearing to take witness evidence on the spot, which lasted seven days.
The evidence submitted to the Court shows that the applicants'representatives, Mr Dinu, Mr Tănase and Mr Gribincea, incurred costs and expenses relating to the matters found to constitute the violations.
Ruling on an equitable basis and taking account of the work reasonably necessary to produce the large volume of documents and observations filed on the applicants'behalf, the Court awards the applicants the overall sum of EUR 2 1, 000, less the EUR 3, 964 already paid in legal aid by the Council of Europe. This amounts to EUR 4,363 for Mr Dinu's fees and secretarial costs, EUR 3,960 for Mr Gribincea's fees and costs, and EUR 8, 7 13 for Mr Tănase's fees and costs.
494. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
1. Holds by eleven votes to six that the applicants come within the jurisdiction of the Republic of Moldova within the meaning of Article 1 of the Convention as regards its positive obligations;