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THE CASE OF ILASCU AND OTHERS v. MOLDOVA AND
RUSSIA
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EUROPEAN COURT OF HUMAN RIGHTS
CASE OF ILASCU AND OTHERS v. MOLDOVA AND RUSSIA
(Application no. 48787/99)
JUDGMENT
STRASBOURG
8 July 2004
This judgment is final but may be subject to editorial revision.
TABLE OF CONTENTS
ANNEX
In the case of Ilascu 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. B?rsan,
Mr J. Casadevall,
Mr B. Zupancic,
Mr J. Hedigan,
Mrs W. Thomassen,
Mr T. Pant?ru,
Mr E. Levits,
Mr A. Kovler,
Mrs E. Fura-Sandstr?m, 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:
INTRODUCTION
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 Ilascu, Mr Alexandru Lesco, Mr Andrei Ivantoc 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 Ilascu alleged of 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.
PROCEDURE
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 the 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 of the Rules of Court).
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. Zupancic, 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 written 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 12 to 15
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 Ivantoc, 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 Ivantoc’s representative, Mr 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
Ivantoc under Rule 39 to call off his hunger strike. On 24 January 2004
Mr Ivantoc’s representative informed the Court that his client had ended
his hunger strike on 15 January 2004.
(b) The witness hearings
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 Chisinau
and Tiraspol from 10 to 15 March 2003. In Chisinau 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 no. 3 Prison, 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 43 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 Capatina, who had
been admitted to hospital just before the hearings, after being assaulted;
Vladimir Gorbov and Mikha?l Bergman, whom the respondent Governments said
they had been unable to contact; Petru Godiac, whose absence has not been
explained; Valeriu Pasat, who was not present in Moldovan territory; and
lastly Valeriu Muravschi and Petru Tabuica, who have not given reasons
for their absence.
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.
(c) The documentary evidence
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 Ilascu; statements and letters from
Mr Andrei Ivantoc; documents from the Moldovan authorities concerning the
investigations into the applicants’ arrest and detention; written statements
by witnesses, including Olga Capatina and Petru Godiac; documents concerning
the applicants’ trial in the “Supreme Court of the MRT” and the “pardon”
granted to Mr Ilascu; 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 Chisinau,
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
(“the 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.
THE FACTS
I. THE APPLICANTS
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 the applicants were detained
in the Transdniestrian part of Moldova.
20. Although detained, Mr Ilascu 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 Ilascu 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 Lesco and Mr Ivantoc acquired Romanian nationality
in 2001.
22. Mr Ilascu was released on 5 May 2001; since then he
has lived in Bucharest (Romania). The second and third applicants’ homes
are in Chisinau (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 Ilascu, Mrs Tatiana Lesco and Mrs Eudochia
Ivantoc, and by the fourth applicant’s sister, Mrs Raisa Petrov-Popa.
24. The second applicant was represented before the Court
by Mr Alexandru Tanase, of the Chisinau Bar. The other applicants were
represented by Mr Corneliu Dinu, of the Bucharest Bar, until his death
in December 2002. Since January 2003 they have been represented by Mr Vladislav
Gribincea, of the Chisinau Bar.
II. ESTABLISHMENT OF THE FACTS
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 Chisinau 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.
21986/93, § 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 51 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 Lesco and Mrs Eudochia
Ivantoc, the wives of the second and third applicants; Mrs Raisa Petrov-Popa,
the sister of the fourth applicant; Mr Stefan Ur?tu, detained in 1992 with
the applicants; Mr Constantin T?b?rna, a doctor who examined the applicants
in 1995-1998 while they were detained in Tiraspol and Hlinaia; Mr Nicolae
Lesanu, a doctor who examined the applicants in 1995-1997 while they were
detained in Tiraspol and Hlinaia; Mr Vladimir Golovachev, the governor
of Tiraspol no. 2 Prison; 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 Catana, 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 Mosanu, 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 1991-1992; Mr Nicolai Petrica,
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 Costas, Minister of Defence in 1991-1992 ; Mr Valentin
Sereda, Director of the Moldovan Prisons Service; Mr Victor Berlinschi,
member of the Moldovan Parliament from 1990 to 1994 ; Mr Constantin Obroc,
Deputy Prime Minister in 1991-1992 and adviser to the President of Moldova
from 1993 to 1996; Mr Mikhail Sidorov, member of the Moldovan Parliament;
and Mr Pavel Creanga, 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 Vasiliy Timoshenko, former
military prosecutor attached to the Fourteenth Army and the ROG.
III. THE 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 [Note: Extracts from an
information document of 10 June 1994 produced by the OSCE Conflict Prevention
Centre on the subject of the Transdniestrian conflict. The document concerned,
published in English on the Internet portal of the OSCE mission to Moldova,
is entitled “Transdniestrian conflict: origins and main issues”.].
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 (extracts from the OSCE 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 Fourteenth Army of the military district of Odessa of the
Ministry of Defence of the USSR (“the Fourteenth Army”), whose headquarters
had been in Chisinau 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 Fourteenth 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 Fourteenth Army,
DOSAAF, “The Voluntary Association for Assistance to the Army, Air Force
and Navy” (DOSAAF – Dobrovol’noe Obshchestvo Sodeistviia Armii Aviatsii
i Flotu), situated in Moldovan territory, a State organisation 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 (“the CIS”
– see paragraph 290 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 USSR’s place on 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 Co-operation 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 293).
2. The armed conflict (1991 to 1992)
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 Ur?tu, §§ 64-66 and 69-71, X.,
§§ 218 and 220, Mr Snegur, §§ 230 and 238, Mr Mosanu, §§ 243-245, Y., §
254, Z., §§ 271 and 277-281, General Petrica, §§ 296-297 and 299, Mr Costas,
§§ 401, 405-407 and 409, and Mr Creanga, §§ 457-460); 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 50, 57, 60, 62 and 63 below).
43. From 1989 onwards movements of resistance to Moldovan
independence began to organise in southern Moldova (Gagauzia) and the east
of the country (Transdniestria).
44. Armed clashes on a limited scale broke out between
the Transdniestrian separatists and the Moldovan police as early as November
1990 in eastern Moldova, at Dubasari, on the left bank of the Dniester.
45. During the following months 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 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 Fourteenth Army, General
Netkachev, to call up reservists to make up the complement of the Fourteenth
Army troops deployed in Transdniestria and to put these troops and their
military equipment on a 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, attached for the most part to the Odessa military
district, deployed in the Moldavian Republic of Transdniestria under the
command of the Head of the National Defence and Security Department of
the Republic of Transdniestria”. The Head of that Department, Mr Gennady
I. Iakovlev, who was also the commander of the Fourteenth Army (see paragraph
53 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 Fourteenth 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 Chisinau for that precise purpose.
The Moldovan Government did not comment on this point.
Although several witnesses made the assertion (see Annex, Mr
Ur?tu, § 66, Mr Postovan, § 182, Z., § 272, and Mr Plugaru, § 286), the
Court cannot accept that it has been established beyond a reasonable doubt
that General Iakovlev was released in exchange for a number of a Moldovan
police officers held prisoner by the Transdniestrian forces. It has heard
different accounts of the exact reasons for 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 Chisinau to obtain 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 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 Mosanu, and the Prime Minister, Valeriu Muravschi, protested
against the occupation, on 3 December 1991, of the Moldovan towns of Grigoriopol,
Dubasari, Slobozia, Tiraspol and Ribnita, situated on the left bank of
the Dniester, by the Fourteenth 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 Fourteenth
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 Fourteenth 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 Fourteenth 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 Fourteenth Army had
armed the separatists in two ways: firstly, ammunition stores belonging
to the Fourteenth Army had been opened up to the separatists; secondly,
Fourteenth 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 former Fourteenth Army stationed
in Transdniestria. The Fourteenth 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
Ur?tu, § 65, Mr Petrov-Popa, § 130, Mr Postovan, §§ 182 and 201, Mr Costas,
§ 407 and Mr Creanga, § 457).
58. The applicants asserted that Fourteenth Army troops
had joined the separatist side with the evident approval of their superiors.
59. The Fourteenth Army’s Parcani sapper battalion, under
the orders of General Butkevich, had gone over to the separatist side.
That information had 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 Dubasari, Gura B?cului-B?cioc and Cosnita.
The applicants further asserted that on 20 July 1992 armoured
combat vehicles, mine-throwers, battle tanks and armoured transport vehicles
were transferred from Fourteenth Army units to the separatists. In addition,
during the fighting, eight Fourteenth Army helicopters had taken part in
transporting ammunition and wounded on the separatist side.
In a written statement sent to the Court by Mr Lesco’s representative
on 19 November 2001, Mrs Olga Capat?na, 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 Fourteenth 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 Fourteenth 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, Fourteenth
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 Fourteenth 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 Fourteenth Army at Chitcani on
30 June 1992 and the shelling by the Fourteenth Army of several Moldovan
positions at Cosnita, Dubasari, Slobozia and H?rbovat 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 Fourteenth 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 Costas, § 406). That information was
not disputed by the other parties.
Taking account of the witness’s credibility also, 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 Fourteenth Army personnel,
but merely contended that logically work of such a technical level could
only have been carried out by professionals, that is by Fourteenth Army
troops. It likewise notes that this witness asserted that the separatists
had seized possession of anti-personnel mines previously held in the Fourteenth
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 Fourteenth 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 Fourteenth 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 Fourteenth 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 Fourteenth Army
and with the Fourteenth 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 Fourteenth Army’s stores. Moreover, not
a single Russian soldier had subsequently been disciplined for negligence
or complicity in the seizure of equipment from the Fourteenth Army’s stores.
64. The Russian Government argued that the former Fourteenth
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 former Fourteenth
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 former Fourteenth 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 Fourteenth 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 Fourteenth Army and the transfer of a large
number of Fourteenth Army troops to the reserve so that they could fight
alongside the Transdniestrians or train them (see Annex, Mr Costas, § 406,
Mr Creanga, § 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 Mosanu, § 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 Fourteenth Army to the separatist forces and the massive
transfer of arms and ammunition from the Fourteenth Army’s stores to the
separatists, it is certain that the Moldovan army was in a position of
inferiority which prevented it from regaining control of Transdniestria
(see Annex, Z., § 271, Mr Costas, § 401).
66. On 5 March 1992 the Moldovan Parliament protested against
the silence of the Russian authorities, amounting to complicity in Parliament’s
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 of 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 Chisinau 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 had 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 Fourteenth 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 former USSR
stationed in Moldovan territory, including those on the left bank of the
Dniester, under the jurisdiction of the Russian Federation, so that the
Fourteenth Army became the Russian Operational Group in the Transdniestrian
region of the Republic of Moldova (“the ROG” or “the former Fourteenth
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 former Fourteenth 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 Fourteenth 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 the commander
of the Fourteenth Army, drawing their attention to the fact that the Fourteenth
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 Fourteenth
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 Fourteenth 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 former Fourteenth 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 Fourteenth Army
decided to join the new army of the Republic of Moldova. These were a unit
at Floresti (ammunition store no. 5381), the 4th artillery regiment at
Ungheni and the 803rd rocket artillery regiment at Ungheni.
The soldiers of the 115th independent battalion of sappers and
firemen of the former Fourteenth 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 former USSR and their
legal successors” and that the former Fourteenth 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 Fourteenth Army of arming the
Transdniestrian units in December 1991 and complained of the attitude of
the 6th 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 former Fourteenth 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 former Fourteenth 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 which had been set in motion.
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 UN Security Council of the “assault on the
town [of Tighina] by the Fourteenth 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 1992 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 joint
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 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 292 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 former Fourteenth 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.
Among its other provisions it states that Moldova is neutral, prohibits
the stationing in its territory of troops belonging to other States and
holds out the possibility of a form of autonomy for 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 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 did not maintain 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-?-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 Fourteenth
Army to the unconstitutional authorities in Tiraspol; training of “MRT”
troops by the Russian army; and transfers of military units from the Fourteenth
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 Fourteenth 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 said that the examples of an alleged lack of impartiality
on the part of Fourteenth 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 establish and maintain unilaterally international contacts
in the 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’
joint 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 about 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. These 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 Benderi/Tighina, 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
its 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 Anatoliy Zverev, § 367), no soldier of the former Fourteenth
Army or the ROG has been employed in the Russian peacekeeping forces.
104. Contacts 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 Vasile 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 93 above), and Moldova accepted that proposal,
which it considered counterproductive, on Russia’s insistence and only
after persuading Russia to declare itself in favour of the speedy release
of the members of the Ilascu 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 in common 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 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
to 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
of 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. To date, it has still not entered into force.
The second agreement was approved only by the Moldovan Government,
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 entered 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), “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 1996 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 Fourteenth 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 tons 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 former Fourteenth 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 explosions
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 100 million US 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-in-chief
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 200,000 tonnes
of military equipment and ammunition there, mainly stored 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. Occasionally these movements occasion incidents such as 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 Transdniestrian
investigators.
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 the 1992 by the Fourteenth 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
118 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 security at the “MRT” store was provided,
at the time when his study was published in 2001, 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 belong 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
former Fourteenth Army participated in public life in Transdniestria. In
particular, soldiers of the former Fourteenth 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 Ilascu,
§ 26, Mr Ur?tu, § 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 Chisinau in which
the Moldovan authorities expressed their regret about the fact that the
authorities of the Russian Federation had opened 17 fixed polling stations
in Transdniestrian territory for the presidential elections of 17 March
2004 without the agreement of the Moldovan authorities and that in acting
thus the Russian authorities had placed them before a fait accompli, creating
an undesirable precedent. The note went on to say that the only places
where the opening of polling stations was desirable were the ROG headquarters
in Tiraspol, the headquarters of the peacekeeping forces in Bender/Tighina,
the Russian Embassy in Chisinau 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 eminent 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 Chisinau.
The other parties did not contest these facts.
146. On 19 May 1994 Lieutenant-General Iakovlev, the former
commander of the Fourteenth Army and former head of the “Defence and Security
Department of the MRT”, became a citizen of the Russian Federation.
147. In 1997 Mr Maracuta, 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 and in 1999 according to the applicants.
150. According to the applicants, 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 118 above),
from 1993 onwards Transdniestrian arms firms began to specialise in the
production of high-tech weapons, using funds and orders from various Russian
companies, including the Russian arms producer and trader “POCBOOPUZhEHIE”.
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 from the Russian Federation
the components for the silenced pistols it produces 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 R?bnita
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 R?bnita 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, Mr 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
Maracuta, Mr Caraman and Mr Antiufeyev, to the Duma of the Russian Federation.
In addition, between 28 August and 2 September 2001, members
of the Duma took part in the celebrations to mark the 10th 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 by its
State organs with every honour. 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” in relation to 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 concern 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 R?bnita 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 Chisinau 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 destinations
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.
These contacts were established and maintained mainly through
the 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 Ur?tu, § 66, Mr Postovan, § 182, Z., § 272, Mr
Plugaru, § 286, and Mr Obroc, § 430), the first contacts 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 Ur?tu, § 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 T?b?rna, § 84, and Mr Lesanu, § 85).
167. From 1993 onwards the Moldovan authorities began to
bring criminal proceedings against certain Transdniestrian officials accused
of falsely claiming the status of State officers (see paragraphs 221 and
230 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, §§ 437-438).
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 totally discretionary way. 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 excluding Igor Smirnov and 16 other
Transdniestrian leaders from 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 of Foreign Affairs, personae non
gratae.
171. The applicants alleged that Transdniestrian leaders,
including Mr Smirnov, Mr Maracuta 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 Maracuta 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 Maracuta, 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 Ilascu 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, 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, there are
contacts between the Transdniestrian Ministry of Justice, particularly
the prisons service, and the Moldovan Ministry of Justice (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 Catana, § 206).
178. There is a single telephone system for the whole of
Moldova, including Transdniestria. A telephone call between Chisinau 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 former Fourteenth 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
1. The applicants’ arrest
188. It appears from the evidence given by the applicants,
their wives and Mr Ur?tu, 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 Fourteenth Army of the former USSR, while others wore camouflage
suits without distinguishing marks.
The details of their arrest were as follows.
189. The second applicant, Alexandru Lesco, was arrested
on 2 June 1992 at 2.45 a.m. The next day his home was searched in the presence
of his neigbours.
190. The first applicant, Ilie Ilascu, 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 10
to 12 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 was dangerous for the stability of the “MRT”, which was at war
with Moldova.
191. The third applicant, Andrei Ivantoc, 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
named Gusar and Ostapenko (see also paragraph 225 and below).
194. As evidenced by the concordant statements of the applicants
and other witnesses (see Annex, Mr Ur?tu, §§ 55-56 and 60-61, Mrs Lesco,
§§ 30-31, and Mrs Ivantoc, §§ 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 Fourteenth 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 refused to go along with that proposal, he was told
that his only alternative was the cemetery.
2. Detention of the first three applicants on the premises of
the former Fourteenth Army
196. A few days after their arrest the first three applicants
were taken separately to the Fourteenth 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 Fourteenth 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 Fourteenth 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 Fourteenth 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 Fourteenth 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 Fourteenth 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 270 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 Fourteenth Army garrison
headquarters. (see Annex, Mr Ilascu, §§ 2, 4 and 11, Mr Ur?tu, §§ 55-56,
Mr Ivantoc, §§ 94-95, Mr Lesco, §§ 114 and 117, Mr Petrov-Popa, § 124,
Mrs Lesco, §§ 33-34, Mrs Ivantoc, § 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 Fourteenth 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 Fourteenth 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 Fourteenth 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 Fourteenth Army uniforms. Transdniestrian police officers sometimes
participated in inflicting ill-treatment on the applicants.
Ilie Ilascu 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
Ivantoc § 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 15 minutes per day for outdoor exercise,
in an enclosed area. During their detention at the Fourteenth Army’s 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 45 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 Ivantoc, § 95, Mr Lesco,
§ 115, Mrs Lesco, § 33, and Mrs Ivantoc, § 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 Fourteenth Army, the persons detained at the headquarters of the
army’s Tiraspol garrison, including the three applicants, were transferred
to the Tiraspol police headquarters. The transfer was carried out by soldiers
of the Fourteenth Army in Fourteenth Army vehicles (see Annex, Mr Ilascu,
§ 11, Mr Ur?tu, § 55, and Mrs Ivantoc, § 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 Ur?tu, §§
56 and 60-61, Mrs Ivantoc, § 41, and Mrs Lesco, §§ 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 Fourteenth
Army’s 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
Fourteenth Army’s garrison headquarters. He was then confined in a psychiatric
hospital, where he remained for nearly a month. On his return from hospital
he was taken back to the Fourteenth Army’s 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
Fourteenth 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 Ivantoc 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 Ilascu 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 with a view to 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. Mr Ivantoc and Mr Petrov-Popa were treated with psychotropic
substances and as a result Mr Ivantoc experienced mental disorders.
4. The applicants’ trial and conviction
212. The applicants were taken 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
weree 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!” (Terpopictov – k otvetu !).
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 Fourteenth 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).
The court 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 12 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 et 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 15 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), illegal use of 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 15 years’ imprisonment and confiscation
of his property.
B. Events subsequent to the applicants’ conviction; Mr Ilascu’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 Chisinau
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 pending trial,
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 Ilascu group”).
228. The first applicant, although 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 “RMT” “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
when the relevant measure was taken by judges or prosecutors appointed
in accordance with the legislation of the Republic of Moldova, which was
not the position 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 Chisinau 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 Ilascu’s request, the Romanian
authorities granted him Romanian nationality by virtue of Law no. 21/1991.
232. On 26 November 2000 Mr Ilascu 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 Ivantoc and Mr Lesco
were likewise granted Romanian nationality.
234. On 5 May 2001 Mr Ilascu was released. The circumstances
of his release, which are disputed, are summarised below (see paragraphs
279 to 282).
C. The applicants’ detention after conviction
235. The first applicant was detained in Tiraspol no. 2
Prison 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 no. 2
Prison. He stayed there until his release in May 2001.
236. Mr Lesco was transferred after his trial to Tiraspol
no. 2 Prison, where he is still detained.
237. Mr Ivantoc 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
no. 2 Prison, where he still is.
238. Mr Petrov-Popa was transferred shortly before the
beginning of his trial to Tiraspol no. 2 Prison. At some time after Mr
Ilascu’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 no. 3 Prison “in order to facilitate his contacts 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 Mosanu, § 248, and Mr Sangheli, § 267).
1. The conditions of detention
240. The applicants were detained, except during a few
very short periods, alone, each in his own cell, except for Mr Lesco, who
was held in solitary confinement only during the first few years.
Mr Ilascu 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 Ilascu 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 Ilascu 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 Ilascu’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 of 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 Ilascu 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 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 Ilascu was allowed visits by Mrs Josette
Durrieu of the Parliamentary Assembly of the Council of Europe and by Mr
Vasile Sturza, the chairman of the commission for negotiations with the
Transdniestrians.
249. In a letter sent in March 1999 to the Moldovan Parliament
about the governmental crisis facing Moldova, Mr Ilascu 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 Sturza as Prime
Minister.
In 1999, following his vote for the Sturza Government and during
the nine months that Government lasted, Mr Ilascu was not allowed any visits
from his family or any parcels. The other applicants, particularly Mr Ivantoc,
suffered similar restrictions.
250. In a letter to the Court dated 14 May 1999 Mr Ivantoc
wrote that since Mr Ilascu’s letter to the Moldovan Parliament the applicants’
conditions of detention, and those of Mr Ilascu in particular, had deteriorated.
251. In a letter of 17 July 1999 Mr Ivantoc 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 “Ilascu group”, amounted to tacit support
for the Transdniestrian authorities.
252. In a written statement of 29 July 1999 Mr Ivantoc,
who was on the 77th day of his hunger strike, accused the leaders in Chisinau
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 Ilascu
access to a doctor and said that Mr Ilascu, 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 Ilascu
pointed out that he had not been able to consult a doctor since 1997. Doctors
who had made the journey from Chisinau 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 Ivantoc
had been refused a visit by his wife, without any explanation.
Mr Ivantoc and Mr Lesco 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 Ilascu, 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 Ivantoc 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 Tanase was able to see his client, Mr Lesco, 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. Mr Ilascu, although suffering from acute arthritis,
pancreatitis and a dental abcess, was refused permission to see a doctor.
His eyesight also deteriorated.
261. In 1995 Mr Lesco was nevertheless 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 Chisinau 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 Lesan and Mr T?b?rna.
In 1999 the visits took place from January to March, and again in November.
On one occasion Mr Ilascu was able to have an electrocardiogram;
Mr Ivantoc 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 Ilascu 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
Ilascu’s case for his disorder of the digestive tract, in Mr Ivantoc’s
case for his liver disease, in Mr Lesco’s case for the consequences of
his pancreatitis and in Mr Petrov-Popa’s case for his tuberculosis.
Mr Lesco, Mr Ivantoc 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 in Hlinaia Prison the
same cell Mr Ilascu 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.
2. Ill-treatment
267. During the first few months of his detention in Hlinaia
Mr Ilascu was ill-treated several times.
On the slightest pretext Mr Ilascu was removed to a disciplinary
cell.
268. After his transfer to Tiraspol no. 2 Prison Mr Ilascu’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 appearance in the press of an article
about the applicants prison warders entered the cells of Mr Ilascu and
Mr Ivantoc and confiscated or destroyed all the objects they found there.
They beat the applicants severely and placed them in disciplinary cells
for 24 hours.
269. The cells of Mr Ilascu and Mr Ivantoc were smashed
up after Mr Ilascu 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 Ilascu 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 Mr Ivantoc
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 rained punches
on him over his heart. They had then dragged him into the corridor, where
he saw a Colonel Gusarov in the act of banging Mr Ilascu’s head against
a wall and kicking him. Mr Gusarov had then put a pistol into Mr Ilascu’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 Mr Ivantoc 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 Lesco’s representative, the applicants
were denied food for two days and light for three days.
272. Mr Ivantoc’s cell in Tiraspol Prison was smashed up
on other occasions, in November 2002 and on or about 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, in 1996
even meeting Mr Ilascu in Hlinaia Prison.
Mr Sturza went one last time to Tiraspol on 16 April 2001 in
order to bring the applicants back to Chisinau, but without success. It
was only on 5 May 2001 that Mr Ilascu was released (see paragraph 279 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 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 “Ilascu 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 Ilascu’s release on 5 May 2001
279. Mr Ilascu 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 Chisinau and there, about 100 metres away from the presidential
palace, he was handed over to the head of the Moldovan secret service,
Mr Pasat. The applicant asserted that Mr Chevtsov had read out in front
of Mr P*sat his instrument of transfer, worded as follows: “The prisoner
Ilascu, 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 Ilascu 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 Ilascu’s release from a letter sent to him by Mr Smirnov on 5 May
2001. In that letter, Mr Smirnov requested that in consideration for the
favourable gesture of the Transdniestrian authorities 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 “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 Ilascu 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
Ilascu’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 Ilascu to one of life imprisonment.
Mr Ilascu 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 Ilascu, 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 Ilascu’s release.
F. Steps taken after May 2001 to secure the other applicants’
release
283. After Mr Ilascu’s release the representative of Mr
Lesco 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
of Foreign Affairs, Mr Nicolae Chernomaz, had stated: “Ilie Ilascu was
released following the intervention of the Russian Minister of Foreign
Affairs, Igor Ivanov, who, at the request of Moldova’s President Voronin,
spoke to the Tiraspol authorities about this subject on 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 Ilascu 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 Ilascu’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 Ilascu’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 Ilascu is the person who is keeping
his comrades detained in Tiraspol.” He pointed out in that connection that
he had suggested to Mr Ilascu 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
Ilascu had refused to do so. According to the Moldovan press agency Basa-press,
Mr Voronin also suggested that if Mr Ilascu 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 Ilascu 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
(“the 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 Ilascu 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 unjustifiable. The CPT asked the Transdniestrian authorities to attenuate
the conditions of detention of the three members of the Ilascu 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 Ilascu. 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 Ilascu 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 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 Corporation in Europe;
Undertaking to abide by the universally recognised international
norms relating to human and peoples’ rights,
We have agreed as follows:
Article 1
The High Contracting Parties hereby establish the Commonwealth
of Independent States.
...
Article 6
1. The States members 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 States members 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...
Article 12
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;
Whereas on 3 July 1992 the President of the Republic of Moldova
and the President of the Russian Federation reached agreement on principles,
Have agreed upon what follows:
Article 1
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.
Article 2
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.
Article 3
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.
Article 4
The Russian Federation’s Fourteenth 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 Fourteenth Army’s property, its personnel or their families.
All questions relating to the Fourteenth 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.
Article 5
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-struck 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-struck
region.
Article 6
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.
Article 7
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.
Article 8
The present agreement will enter 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 with
the following reservations the Alma-Ata Agreement of 21 December 1991 by
which Moldova had joined the CIS:
“... 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:
Article 11
“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.”
Article 111
“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:
Article 116
“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 1 to 5 years.”
Article 207
“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 30 times the minimum monthly salary
or up to 2 years’ labour or up to 2 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
designated ‘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,
have agreed upon what follows: ...
Article 2
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.
Article 5
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.
Article 6
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.
Article 7
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.
Article 13
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.
Article 17
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.
Article 23
The present Agreement will enter 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 UN 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:
Article 1
“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 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.
Article 3
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).
Article 5
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 ordination 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 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 the General Staff of the armed
forces of the Republic of Moldova.
Article 7
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.
Article 8
The present agreement will enter 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:
all the property concerned is divided into three categories:
- the first category includes the standard-issue weapons of the
United Group of Russian forces, its ammunition and its property;
- the second includes weapons, ammunition and surplus movable
military property which must imperatively be returned to Russia;
- 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:
Russian Federation: 50%
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
on 20 March 1998 in full by offsetting them against the income from 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 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 Chisinau.”
THE LAW
I. WHETHER THE APPLICANTS COME WITHIN THE JURISDICTION OF THE
REPUBLIC OF MOLDOVA
A. Arguments submitted to the Court
1. The Moldovan Government
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
its Cyprus v. Turkey judgment ([GC], no. 25781/94, ECHR 2001-IV, § 78),
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 Chisinau, 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.
3. The applicants
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 General
Iakovlev (see paragraph 50 above), the transfer of Mr Ilascu 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 and 177 above).
The applicants asserted that the speech in which President Voronin
accused Mr Ilascu, 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 February1994 and
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.
B. The Court’s assessment
1. General principles
(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, Schaff-Benhadji and Zerouki v. France, judgment of
14 May 2002, § 20; Bankovic and Others v. Belgium and 16 other Contracting
States (dec.), no. 52207/99, §§ 59-61, ECHR 2001-XII; and Assanidze v.
Georgia, ECHR 2004 -..., § 137).
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 the Bankovic decision, 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 [GC], no. 25781/94,
ECHR 2001-IV, §§ 76-80, as cited in the above-mentioned Bankovic decision,
§§ 70-71), to acts of war or rebellion, or to 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 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. 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 the
Bankovic case it emphasised the preponderance of the territorial principle
in the application of the Convention (decision cited above, § 80), it 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. 2234-2235,
§ 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 in practice exercises 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 (ibid., pp. 2235-2236, § 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 [GC], 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, 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 International Law Commission on the Draft
Articles on the responsibility of States for internationally wrongful acts
(2001) (“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 Fourteenth Army.
In March 1992, in view of the seriousness of the situation, a State of
emergency was declared (see paragraph 69 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 83 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 82-83 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 to 89 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 294 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 298 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 179 and 180 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 ?zg?r G?ndem v. Turkey, judgment of 16 March 2000, 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-?-vis foreign States and international organisations, to continue
to guarantee the enjoyment of the rights and freedoms guaranteed by 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 to 161 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
Fourteenth Army personnel.
342. The Moldovan authorities continued after the end of
the hostilities in July 1992 to take steps to re-establish their 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 to 230 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,
66, 68, 69 and 77 to 83 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 168 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. Contacts
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
107 to 110 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 to 184 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, §§ 309-313) 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 222 and 223 above);
- the criminal proceedings brought on 28 December 1993
against the “judges” of the “Supreme Court of Transdniestria” (see paragraph
223 above);
- the amnesty declared by the President of Moldova on 4
August 1995 (see paragraph 226 above) and the Moldovan parliament’s request
of 3 October 1995 (see paragraph 227 above);
- the sending of doctors from Moldova to examine the applicants
detained in Transdniestria (see paragraphs 239 and 263 above); and
- the financial assistance given to the applicants’ families
and the help they were given in arranging visits to the applicants (see
paragraph 239 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 172 and 274 to 277 above).
In particular, the Court notes the efforts made by the judicial authorities;
for example, the Deputy Minister of Justice, Mr V. 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 Chisinau 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 Commission
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
Ilascu’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 with the expectation of bringing the
four applicants back to Chisinau (see paragraph 274 above and Annex, Mr
Sturza, §§ 310-312).
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. That is confirmed by the witness evidence on that
point (see Annex, Mr Postovan, § 184, Mr Catana, § 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 Mosanu,
§ 249).
348. The Court does not have any evidence that since Mr
Ilascu’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 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 Moldova 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, §§ 310-313).
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 intended to
“put an end to ... the applicants’ detention” (see paragraph 360 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 in the period 1992-94, when the
Moldovan authorities raised the question of the applicants’ release with
the Russian authorities, after 1994 interventions to that end also seem
to have ceased.
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 going on 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 Ilascu’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
is capable of being engaged under the Convention on account of its failure
to discharge its positive obligations with regard to the acts complained
of which occurred after May 2001.
In order to determine whether Moldova’s responsibility is indeed
engaged under the Convention, the Court must therefore 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 former
Fourteenth 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 former Fourteenth 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 the Loizidou v. Turkey and Cyprus v. Turkey judgments (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 former Fourteenth Army (see paragraph 299 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 296 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 Fourteenth Army but asserted that
this detention had been in breach of the ROG’s disclinary 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.
2. The Moldovan Government
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 of 10 July 1978 in the above-mentioned
Cyprus v. Turkey case and the Court’s judgment on the preliminary objections
in the above-mentioned Loizidou v. Turkey case.
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 Fourteenth 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 former USSR and that it was therefore responsible for acts
committed by organs of the former USSR, in this case the Fourteenth Army,
which had become the ROG, particularly 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 Fourteenth Army personnel in the arrest and interrogation of the applicants,
their detention on Fourteenth 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.
3. The applicants
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 former 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 that had been produced of the Russian Federation’s support
(see paragraphs 111 to 136 above) and the numerous appeals made in 1992
by the Moldovan authorities complaining of the former Fourteenth Army’s
aggression against Moldovan territory. They also complained of public statements
made by commanders of the former Fourteenth 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 that, while the former Fourteenth 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 former Fourteenth 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 Maracuta 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 the above-mentioned Loizidou
v. Turkey (preliminary objections) judgment 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 the Kling case, 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 clarifications 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 Chisinau government.
They submitted that the former Fourteenth Army had contributed
to the creation of the separatist military forces. After the end of the
conflict the personnel of the former Fourteenth 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 (Cyprus
v. Turkey, application no. 8007/77, Commission decision of 10 July 1978,
cited above; Loizidou v. Turkey (preliminary objections), cited above;
and Cyprus v. Turkey, application no. 25781/94, 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 former Fourteenth 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 former Fourteenth 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.
B. The Court’s assessment
1. General principles
376. The Court considers that the general principles summarised
above (see paragraphs 310 to 321) are relevant to examination of the question
whether the applicants come within the jurisdiction of the Russian Federation.
2. Application of the above-mentioned 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 to 316), 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 293 and 294 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 Fourteenth 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 former Fourteenth 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 Fourteenth 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 to 136 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 former Fourteenth 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 former Fourteenth 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, 75, 137 and 138 above). The Russian Federation drafted the
main 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 next 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 111 to 161
above), thus enabling it to survive by strengthening itself and by acquiring
a certain amount of autonomy vis-?-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 Fourteenth Army (subsequently the ROG).
The first three applicants were then detained on Fourteenth Army premises
and guarded by Fourteenth 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 Fourteenth 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 them 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 weight 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 112 to 120 and 123
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 116 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 100 million US 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
156 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 150 and 151 above).
391. The Court next 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
99, 100, 150 and 151 above).
392. All of the above proves that the “MRT”, set up in
1991-1992 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 entered 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
that 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 going on.
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 to the Convention
404. The applicants complained that they had been deprived
of their possessions in breach of Article 1 of Protocol No. 1, since the
judgment pursuant to 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 Ilascu’s complaint under Article 2 of the Convention
406. Relying on Article 2, Mr Ilascu 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 Ilascu 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 MRT’s Minister
of Security”, 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 Ilascu 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 Ilascu would
be executed if he went to Transdniestria.
B. The Court’s assessment
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 Ilascu 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 222 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 281 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 Ilascu 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 Transnistria.
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 Ilascu’s release or whether the death penalty imposed on him has
been commuted to life imprisonment (see paragraph 282 above).
Since Mr Ilascu 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 Ilascu 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 Ilascu 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 Ilascu 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 Ilascu’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 their deliberateness, their particularly vile nature and the fact that
they had caused the applicants severe and cruel suffering.
B. The Court’s assessment
1. General principles
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, Kudla 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 (see the previously cited Selmouni judgment, § 96):
“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 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 the previously cited Labita judgment,
§ 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 (Valasinas
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 Kudla v. Poland, 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).
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 v. the United Kingdom, cited above, § 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 (see Soering v. the United Kingdom, cited above, p. 44, §
111).
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 contacts 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 (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
(a) Mr Ilascu
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 apt
to remind him of the prospect of his sentence being enforced (see paragraphs
196 to 210 and 240 to 253 above).
In particular, the Court notes that after sending a letter to
the Moldovan Parliament in March 1999 Mr Ilascu 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 Ilascu
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
212 to 216 above), and as described and analysed by the institutions of
the OSCE (see paragraph 286 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 Ilascu 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 Ilascu 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 289 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 258 to 260,
262, 263, and 265 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 Ilascu 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 411
above) on account of his conditions of detention, the treatment inflicted
on him and the suffering caused to him in prison.
Mr Ilascu was released in May 2001 and it is only from that date
on that Moldova’s responsibility is engaged on account of the acts complained
of for failure to discharge its positive obligations (see paragraph 352
above). Consequently, there has been no violation of Article 3 of the Convention
by Moldova with regard to Mr Ilascu.
442. In conclusion, the violation of Article 3 of the Convention
with regard to Mr Ilascu is imputable only to the Russian Federation.
(b) The other three applicants: conditions of detention and treatment
during detention
(i) Mr Ivantoc
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 Ivantoc
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 Ivantoc was subjected in May 1999 after lodging his application to the
Court (see paragraphs 251 and 252 above), and in 2001, November 2002 and
February 2003 (see paragraphs 254, 256 and 269 to 272 above).
444. In addition, Mr Ivantoc 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 contacts 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 left
to 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 apt 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 Ivantoc
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 Ivantoc 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 Ivantoc 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 352 above), Moldova is responsible for a violation of Article
3 of the Convention with regard to Mr Ivantoc from that date onwards.
449. In conclusion, as regards Mr Ivantoc, 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 Lesco 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 Lesco 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 265 above).
The Court emphasises also that these conditions have deteriorated
since 2001 (see paragraph 254 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 Lesco were denied access to a lawyer
until June 2003 (see paragraph 257 above).
452. In the Court’s opinion, such treatment is apt 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 Lesco and Mr
Petrov-Popa can be qualified as inhuman and degrading treatment within
the meaning of Article 3 of the Convention.
453. As Mr Lesco 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 352 above), Moldova is responsible for the violation of Article
3 of the Convention with regard to Mr Lesco and Mr Petrov-Popa from May
2001 onwards.
454. In conclusion, as regards Mr Lesco 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 Fourteenth
Army’s 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-?-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 28 May 1970, 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 to the Convention, in order to enable individuals
to enjoy the Convention guarantees (see, mutatis mutandis, Cyprus v. Turkey,
cited above, §§ 231 and 236-237).
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, § 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 26 June 1992, Series A no.
240, § 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 436 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 Ilascu, 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 Ilascu, and that there has been
and continues to be a violation of that provision as regards the three
applicants still 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 is engaged from May 2001, the Court concludes that there has
been no violation of Article 5 by Moldova as regards Mr Ilascu. 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, which the Court will examine separately.
470. However, having taken these allegations into account
in the context of Article 3 (see paragraphs 438, 439, 444 and 451 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 TO THE CONVENTION
471. The applicants complained, under Article 1 of Protocol
No. 1 to the Convention, 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 to the Convention.
IX. ALLEGED BREACH OF 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 that 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 Ilascu’s refusal to withdraw his application
had been the cause of the remaining applicants’ continued detention (see
paragraph 285 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 278 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 when Mr Ilascu remarked 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 therefore
not be relied on before the Court.
479. The Romanian Government submitted that the acts of
intimidation directed against Mr Ilascu 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
of Judgments and Decisions 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 contacts designed to dissuade or discourage applicants
from pursuing a Convention remedy (see Kurt v. Turkey, judgment of 25 May
1998, Reports 1998-III, p. 1192, § 160).
Moreover, the question whether contacts between the authorities
and an applicant constitute unacceptable practices 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. 1192-1193, § 160,
both previously cited).
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 Tanase, 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 the Republic of Moldova to 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 360
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 were 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 Ilascu’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 Ilascu 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.
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.”
A. Damage
484. The applicants submitted their claims for just satisfaction
in November 2001.
In a letter received by the Court on 12 February 2004, Mr T*nase
submitted the new claims of his client, Mr Lesco, 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 Ilascu
and Mrs Ivantoc had had to resign from their jobs in Tiraspol and move
to Chisinau. In addition, Mr Lesco’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 Ilascu 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 Ivantoc 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 Lesco
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 Ilascu, Mr Ivantoc 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 Ilascu,
EUR 7,395,000; Mr Ivantoc, EUR 7,842,000; Mr Petrov-Popa, EUR 7,441,000;
and Mr Lesco, EUR 7,800,000.
With regard to the sums claimed for non-pecuniary damage, Mr
Ilascu, Mr Ivantoc 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 Ilascu,
EUR 7,396,861; Mr Ivantoc, EUR 7,851,560; Mr Petrov-Popa, EUR 7,462,510;
and Mr Lesco, EUR 7,830,000.
486. The Moldovan Government said that they were not opposed
to the claims made by the applicants Ilascu, Ivantoc, and Petrov-Popa,
in so far as it appeared therefrom that they would have to pay EUR 1,000
to each of the them. On the other hand, it found the sums claimed by Mr
Lesco 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, 8 April 2004;
Maestri v. Italy [GC], no. 39748/98, § 47, 17 February 2004; Mentes 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 Ilascu and Mr Ivantoc 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 Ivantoc, Mr
Lesco 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 180,000 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.
B. Costs and expenses
491. For their lawyers’ fees Mr Ilascu claimed EUR 8,000
and Mr Ivantoc 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 Lesco’s wife and his
lawyer, Mr Lesco 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 59 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 were reasonable as to quantum (see, for example, Kalashnikov v. Russia,
no. 47095/99, ECHR 2002-VI, § 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 T*nase 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 21,000, 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 8,713 for Mr
T*nase’s fees and costs.
C. Default interest
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.
FOR THESE REASONS, THE COURT
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;
2. Holds by sixteen votes to one that the applicants come within
the jurisdiction of the Russian Federation within the meaning of Article
1 of the Convention;
3. Holds unanimously that the Court does not have jurisdiction
ratione temporis to examine the complaint under Article 6 of the Convention;
4. Holds by sixteen votes to one that the Court has jurisdiction
ratione temporis to examine the complaints under Articles 2, 3, 5 and 8
of the Convention in so far as they concern events subsequent to 12 September
1997 in the case of the Republic of Moldova and 5 May 1998 in the case
of the Russian Federation;
5. Holds by fifteen votes to two that the Court is not required
to determine whether it has jurisdiction ratione temporis to examine the
complaint under Article 1 of Protocol No. 1 to the Convention;
6. Holds unanimously that the complaint of a violation of Article
2 of the Convention on account of the fact that Mr Ilascu was sentenced
to death by the “Supreme Court of the MRT” does not call for a separate
examination;
7. Holds by eleven votes to six that there has been no violation
of Article 3 of the Convention by Moldova on account of the ill-treatment
inflicted on Mr Ilascu and the conditions in which he was detained while
under the threat of execution;
8. Holds by sixteen votes to one that there has been a violation
of Article 3 of the Convention by the Russian Federation on account of
the ill-treatment inflicted on Mr Ilascu and the conditions in which he
was detained while under the threat of execution, and that these must be
termed torture within the meaning of that provision;
9. Holds by eleven votes to six that there has been a violation
of Article 3 of the Convention by Moldova since May 2001 on account of
the ill-treatment inflicted on Mr Ivantoc and the conditions in which he
has been detained, and that these must be termed torture within the meaning
of that provision;
10. Holds by sixteen votes to one that there has been a violation
of Article 3 of the Convention by the Russian Federation on account of
the ill-treatment inflicted on Mr Ivantoc and the conditions in which he
has been detained, and that these must be termed torture within the meaning
of that provision;
11. Holds by eleven votes to six that there has been a violation
of Article 3 of the Convention by Moldova since May 2001 on account of
the ill-treatment inflicted on Mr Lesco and Mr Petrov-Popa and the conditions
in which they have been detained, and that these must be termed inhuman
and degrading treatment within the meaning of that provision;
12. Holds by sixteen votes to one that there has been a violation
of Article 3 of the Convention by the Russian Federation on account of
the ill-treatment inflicted on Mr Lesco and Mr Petrov-Popa and the conditions
in which they have been detained, and that these must be termed inhuman
and degrading treatment within the meaning of that provision;
13. Holds by eleven votes to six that there has been no violation
of Article 5 of the Convention by Moldova on account of the detention of
Mr Ilascu;
14. Holds by eleven votes to six that there has been and continues
to be a violation of Article 5 of the Convention by Moldova on account
of the detention of Mr Ivantoc, Mr Lesco and Mr Petrov-Popa after May 2001;
15. Holds by sixteen votes to one that there was a violation of
Article 5 of the Convention by the Russian Federation as regards Mr Ilascu
until May 2001, and that there has been and continues to be a violation
of that provision as regards Mr Ivantoc, Mr Lesco and Mr Petrov-Popa;
16. Holds unanimously that there is no cause to examine separately
the applicants’ complaint under Article 8 of the Convention;
17. Holds by fifteen votes to two that there has been no violation
of Article 1 of Protocol No. 1 to the Convention;
18. Holds by sixteen votes to one that Moldova has failed to discharge
its obligations under Article 34 of the Convention;
19. Holds by sixteen votes to one that the Russian Federation
has failed to discharge its obligations under Article 34 of the Convention;
20. Holds by ten votes to seven that Moldova is to pay the applicants,
within three months, the following sums, plus any tax that may be chargeable:
(a) to Mr Ivantoc, Mr Lesco and Mr Petrov-Popa, EUR 60,000 (sixty
thousand euros) each in respect of pecuniary and non-pecuniary damage;
(b) to each applicant, EUR 3,000 (three thousand euros) in respect
of non-pecuniary damage sustained on account of the breach of Article 34;
(c) to the applicants, the overall sum of EUR 7,000 (seven thousand
euros), less EUR 1,321.34 (one thousand three hundred and twenty-one euros
and thirty-four cents) already received in legal aid, in respect of costs
and expenses, made up of EUR 1,454.33 (one thousand four hundred and fifty-four
euros and thirty-three cents) for Mr Dinu, EUR 1,320 (one thousand three
hundred and twenty euros) for Mr Gribincea and EUR 2,904.33 (two thousand
nine hundred and four euros and thirty-three cents) for Mr Tanase;
21. Holds by sixteen votes to one that the Russian Federation
is to pay the applicants, within three months, the following sums, plus
any tax that may be chargeable:
(a) to Mr Ilascu, EUR 180,000 (one hundred and eighty thousand
euros) in respect of pecuniary and non-pecuniary damage;
(b) to each of the other applicants, EUR 120,000 (one hundred
and twenty thousand euros) in respect of pecuniary and non-pecuniary damage;
(c) to each applicant, EUR 7,000 (seven thousand euros) in respect
of non-pecuniary damage sustained on account of the breach of Article 34;
(d) to the applicants, the overall sum of EUR 14,000 (fourteen
thousand euros), less EUR 2,642.66 (two thousand six hundred and forty-two
euros and sixty-six cents) already received in legal aid, in respect of
costs and expenses, made up of EUR 2,908.67 (two thousand nine hundred
and eight euros and sixty-seven cents) for Mr Dinu, EUR 2,640 (two thousand
six hundred and forty euros) for Mr Gribincea and EUR 5,808.67 (five thousand
eight hundred and eight euros and sixty-seven cents) for Mr Tanase;
22. Holds unanimously that the respondent States are to take all
necessary measures to put an end to the arbitrary detention of the applicants
still imprisoned and secure their immediate release;
23. Holds unanimously that the amounts indicated in points 20
and 21 above are to be converted into the national currency of the country
of residence of each applicant, at the rate applicable on the date of settlement,
and that from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on them at a rate equal to the marginal
lending rate of the European Central Bank during the default period plus
three percentage points;
24. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 8 July 2004.
Luzius
Wildhaber
President
Paul Mahoney
Registrar
In accordance with Article 45 § 2 of the Convention and Rule
74 § 2 of the Rules of Court, the following separate opinions are annexed
to this judgment:
(a) partly dissenting opinion of Mr Casadevall joined by
Mr Ress, Mr B?rsan, Mrs Tulkens and Mrs Fura-Sandstr?m;
(b) partly dissenting opinion of Mr Ress;
(c) partly dissenting opinion of Sir Nicolas Bratza, joined
by Mr Rozakis, Mr Hedigan, Mrs Thomassen and Mr Pant?ru;
(d) partly dissenting opinion of Mr Loucaides;
(e) dissenting opinion of Mr Kovler.
L.W.
P.J.M.
PARTLY DISSENTING OPINION OF
JUDGE CASADEVALL, JOINED BY JUDGES RESS, B?RSAN, TULKENS AND FURA-SANDSTR?M
(Translation)
1. I did not follow the majority of the Grand Chamber in
their conclusion that Moldova’s responsibility on account of its failure
to discharge its positive obligations under the Convention was engaged
only from May 2001 onwards.
That view led to the finding, a paradoxical and incoherent one
in my opinion, that Moldova breached Articles 3 and 5 of the Convention
on account of the ill-treatment, detention and conditions of detention
suffered by Mr Ivantoc, Mr Lesco and Mr Petrov-Popa (only after May 2001)
but bore no responsibility for the same facts and above all for the death
sentence imposed by the “Supreme Court of the MRT” and the risk of execution
as regards Mr Ilascu.
As the applicants come within the jurisdiction of Moldova (paragraph
335 of the judgment), its responsibility is engaged, in my opinion, from
the date of its ratification of the Convention to the present and with
regard to all the applicants, there being no justification, quite the reverse
in fact, for taking the view that its positive obligations did not exist
during the period from 12 September 1997 to May 2001, as the majority did.
I have set out the reasons why I disagree below.
2. The ceasefire agreement of 21 July 1992 marked the end
of an initial phase of real efforts by Moldova to exercise its authority
over the whole of its territory. After that date it tended to adopt a rather
acquiescent attitude, channelling its efforts into negotiation with a view
to re-establishing its control over Transdniestrian territory instead of
trying to secure the rights of the applicants, who had been tried unlawfully
and unlawfully detained for ten years in Mr Ilascu’s case and nearly twelve
years in the case of the other three.
3. As the Court said, in view of the complexity of the
factual situation, 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 have exerted through the Russian authorities to improve the
applicants’ situation; lastly, it is also important to take into account
certain acts dating from before ratification and use them for comparative
purposes when assessing the efforts made by Moldova after 12 September
1997 (paragraphs 337 and 338 of the judgment). Consequently, it is necessary
to make an overall assessment of the situation as it developed in the course
of time, and of acts
and omissions.
4. It is true that, from the onset of the hostilities,
the Moldovan authorities never ceased complaining of the aggression they
considered they had suffered and rejected the secessionists’ declaration
of independence. After the end of the hostilities, in July 1992, the Moldovan
authorities continued to take steps to re-establish control, by bringing
criminal proceedings in 1993. Subsequently, after 1994, they continued
to assert their sovereignty over the territory controlled by the “MRT”,
both internally and internationally (paragraphs 341 to 343 of the judgment).
5. However, from 1997 onwards, the conclusion is inescapable
that there was a reduction in the number of attempts by the Moldovan authorities
to exercise control in Transdniestria, and that these attempts were limited
to diplomatic activity. Moreover, Moldova had just been accepted as a member
of the Council of Europe, yet, paradoxically, did not take advantage of
the opportunities afforded it in that political forum.
On the other hand, express or de facto measures of cooperation
were taken between the Moldovan authorities and the Transdniestrian separatists:
administrative, economic and political agreements were reached, relations
were established between the Moldovan parliament and the “parliament of
the MRT”, cooperation was introduced for several years in the police, prison
and security fields, and other forms of participation were developed in
fields such as the issuing of identity papers, air traffic control, telephone
links and sport (paragraphs 114, 174, 175, 177, 178, 179 and 185 of the
judgment).
6. As regards the applicants’ situation, before ratification
of the Convention in 1997 the Moldovan authorities took certain measures,
such as the Supreme Court’s judgment of 3 February 1994 quashing the applicants’
conviction and setting aside the warrant for their detention; the prosecution
beginning on 28 December 1993 of the “judges” of the “Supreme Court of
the MRT” and other Transdniestrian officials accused of usurping official
functions; the amnesty decreed by the President of Moldova on 4 August
1995; the Moldovan parliament’s request of 3 October 1995; the sending
of doctors to examine the applicants detained in Transdniestria; and the
assistance provided to the families (paragraphs 222, 223, 226, 227, 239
of the judgment).
7. But once again, after 1997, the measures taken to secure
the applicants’ rights were limited to the sending of doctors (the last
visit taking place in 1999), the provision of financial support to their
families, and interventions by Mr Sturza to secure their release (the last
of these interventions recorded in the file came in April 2001). The Moldovan
Government acknowledged that in response to the demands made by the separatists
during discussions on a settlement of the conflict and the applicants’
release they had changed their negotiating strategy, giving more priority
to diplomatic exchanges with a view to preparing the return of
Transdniestria to the Moldovan legal order, while simultaneously abandoning
the judicial measures previously taken (paragraph 344 in fine of the judgment).
It is understandable that certain cooperation measures were taken by the
Moldovan authorities with the laudable aim of improving the daily lives
of the Transdniestrian population and enabling them to lead as nearly normal
lives as possible.
8. I do not wish to pass judgment on the pertinence or
effectiveness of the political strategy adopted by Moldova in order to
settle such a crucial question as that of its territorial integrity. Nevertheless,
even in the absence of effective control over the Transdniestrian region,
the Moldovan authorities remain under an obligation to take all the measures
in their power, whether political, diplomatic, economic, judicial or other
measures (paragraph 331 of the judgment), to secure the rights set forth
in the Convention to persons formally within their jurisdiction, and therefore
to all those within Moldova’s internationally recognised borders.
As regards the nature and effectiveness of the measures taken
or those which could have been taken, certain facts may be more significant
than others on account of their consequences. In that connection, having
regard to Mr Ilascu’s release in May 2001, it may be presumed that not
all the measures envisaged to obtain the applicants’ release could be considered
doomed to failure, as the majority seem to admit in the second part of
paragraph 347 of the judgment.
9. I consider that the efforts made by the Moldovan authorities
with a view to securing the rights set forth in the Convention after its
ratification in 1997 were not pursued with the firmness, determination
and conviction required by the serious situation the applicants found themselves
in. For example, the following instances of manifest inaction, and sometimes
counter-action, must be noted.
– On 28 December 1993 an investigation was opened in connection
with the persons involved in the applicants’ prosecution and conviction,
but the absence of information on the measures taken by the authorities
to bring this investigation to a satisfactory conclusion, could give rise
to serious doubts about its effectiveness (paragraph 221 of the judgment).
– The Moldovan Supreme Court’s judgment of 3 February 1994
quashing the judgment of the “Supreme Court of the MRT” of 9 December 1993
and ordering the return of the case file to the prosecution service for
a new investigation was never acted upon (paragraph 222 of the judgment).
– No steps were taken after the amnesty declared on 4 August
1995 by the Moldovan President. Similarly, the Court has not been informed
of any action undertaken by the Moldovan Government or the Ministry of
Foreign Affairs on the applicants’ behalf, notwithstanding parliament’s
request to that effect on 3 October 1995 (paragraph 227 of the judgment).
– On 16 August 2000 the order of 28 December 1993 was declared
void by the public prosecutor on the ground that the offences had not been
given the correct legal classification. The same decision framed new charges
but it was held to be inadvisable to open an investigation on the basis
of those charges because prosecution was time-barred. One can only expresses
doubts about the seriousness of proceedings in which the authorities waited
for seven years before reclassifying the offences under investigation only
to decide in the end that prosecution on the new charges was subject to
limitation. Without being able to form a view on the question whether Moldovan
law authorises limitation in respect of offences which are the subject
of a pending criminal investigation, I must point out that in the present
case limitation became possible precisely because of the length of an investigation
which had in addition proved to be ineffectual (paragraph 229 of the judgment).
– The opening by the public prosecutor on 16 August 2000
of a criminal investigation in respect of the governor of Hlinaia Prison
was not followed up and in any case the governor told the Court’s delegates
that he had not been informed of it (paragraph 230 of the judgment and
§ 137 of the Annex).
– As a result of the staying or discontinuance of the above-mentioned
investigations, it is now possible for certain senior officials of the
“MRT” regime, including Mr Chevtsov, to enter Moldova without being called
to account in any real sense for their activities in the regime’s service
(see Annex, Mr Ilascu, § 21, and Mr Rusu, § 304). Moreover, I note, with
no small surprise, that since his return to Moldova a former “Minister
of Justice of the MRT”, Mr Sidorov, has held high State office in several
capacities and has been the President of the Moldovan Parliament’s Human
Rights and Minorities Committee since 2001 (paragraph 168 of the judgment).
10. It should be noted that, while taking steps to promote
cooperation with the secessionist regime with the avowed aim of making
life easier for the population of Transdniestria, the Moldovan authorities
have not displayed the same diligence with regard to the fate of the applicants.
In their negotiations with the separatists, whether before or after May
2001, the Moldovan authorities have restricted themselves to raising the
question orally, without trying to reach a written agreement providing
for their release (paragraphs 172 and 348 of the judgment). Similarly,
although three of the applicants have been unlawfully deprived of their
liberty for nearly twelve years, no overall plan for the settlement of
the Transdniestrian situation deals with their situation (paragraph 348
in fine).
11. The Court accepts that the Moldovan authorities have
not shown themselves any more attentive to the applicants’ fate in their
bilateral relations with the Russian Federation, and that the fact that
the Moldovan Government refrained at the hearing on 6 June 2001 from arguing
that the Russian Federation might be responsible, with the aim of averting
“undesirable consequences, namely the halting of the process aimed at ending
... the detention of the other applicants” (paragraph 360 of the judgment),
amounted to an admission on their part of the influence the Russian authorities
might have over the Transdniestrian regime (paragraph 349 of the judgment).
However, it would seem that the Moldovan authorities, both before and after
2001, did not use all the opportunities available to them to bring that
influence into play on the applicants’ behalf.
12. In conclusion, one may well disagree with the minority,
who consider that the applicants are not within the jurisdiction of Moldova
for the purposes of Article 1 of the Convention, that Moldova has not failed
to discharge its positive obligations and that its responsibility is not
engaged in respect of the violations complained of, but that approach is
perfectly coherent. On the other hand, the conclusion that the applicants
are within the jurisdiction of Moldova and that Moldova is bound by its
positive obligations leads unavoidably to acceptance that its responsibility
is fully engaged from the date of its ratification of the Convention, on
12 September 1997.
The fateful date “May 2001” seems wholly artificial and nonsensical.
DISSENTING OPINION OF JUDGE RESS
1. I have joined the dissenting opinion of Judge Casadevall
but I would like to make some additional remarks on the positive obligations
of Moldova. The Court has reached the conclusion that the applicants come
within the jurisdiction of the Republic of Moldova (paragraphs 300-331
of the judgment) and that the declaration attached to the instrument of
Moldova’s ratification of the Convention is a reference to the de facto
situation of control. Even in the absence of effective control over the
Transdniestrian region, Moldova has a positive obligation under Article
1 of the Convention to take measures that it has the power to take in accordance
with international law to secure to the applicants the rights guaranteed
by the Convention. The Court has rightly stated that there is still jurisdiction
under these circumstances even if 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 separate regime is set up. The
sovereignty of Moldova over the whole territory was and is not disputed
by the international community, not even by the Russian Federation, which
itself, through the presence of its troops, exercises control over the
Transdniestrian region and thus also has jurisdiction and to that extent
shares responsibility, though of a different kind, with Moldova. I would
not conclude as the Court did in paragraph 333 that “the factual situation
reduces the scope of the jurisdiction”. The “scope” of the jurisdiction
is always the same but the responsibility of the Contracting State, arising
from the undertaking given by the State under Article 1, can be considered
to relate only to the positive obligations towards persons within its territory
and not to all acts done by the local authority sustained by rebel forces
in Transdniestria. As to the issues of jurisdiction and of responsibility,
the State in question must endeavour with all legal and diplomatic means
available to it vis-?-vis foreign States and international organisations
to continue to guarantee the protection of the rights and freedoms guaranteed
by the Convention.
2. I agree with the statement in paragraph 335 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
acts complained of and 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. It is difficult to see how Moldova could be held
responsible directly for all the acts of the Transdniestrian regime in
that part of its territory. The Court concluded, in view of the complexity
of the factual situation and the difficulty in indicating which measures
the authorities should take in order to comply with the positive obligations
most effectively, that there were intensive measures taken in the years
after 1991/1992 to re-establish Moldova’s control over the Transdniestrian
territory. But these measures
became less intensive and forceful after the ratification of the Convention
by Moldova on 12 September 1997 and practically ceased to exist by the
time Mr Ilascu was released.
As the Court has rightly stated, this obligation to re-establish
control over Transdniestria required Moldova, firstly, to refrain from
supporting the separate regime of the “MRT” in particular after 1997 and,
secondly, to act by taking all the political, judicial and other measures
at its disposal, especially regarding the applicants’ situation and any
further violations of the Convention in relation to them. The Court itself
notes that there was a “reduction in the number of judicial measures intended
to assert Moldovan authority in Transdniestria” (paragraph 344). I fully
agree with the analysis of Judge Casadevall that there is nothing to justify
the conclusion that Moldova discharged its positive obligations before
Mr Ilascu’s release in May 2001 but that since this release there have
been fewer significant signs, if any, of effective measures which the Moldovan
Government could have taken to secure to the applicants their rights under
the Convention.
It is obvious that there were different “phases” of more or less
effective political and judicial efforts to re-establish Moldova’s authority
over the Transdniestrian territory and to bring an end to the situation
of violations of Convention rights in relation to the applicants. After
the “MRT” was set up in 1991-1992 with the support of the Russian Federation
it remained all the time under the effective authority or at least under
the decisive influence of the Russian Federation and survived thanks to
the military, economic, financial and political support given to it by
the Russian Federation (paragraph 392 of the judgment). Under these circumstances,
it was an elementary duty of the Moldovan authorities to discharge their
positive obligations by addressing the applicants’ fate continuously and
specifically in their bilateral relations with the Russian Federation.
This lack of diplomatic efforts and arguments regarding the Russian Federation’s
alleged violations was obvious after May 2001, but also in my view - as
the Court has stated itself – after 1997 (see paragraph 349). The Russian
Federation, acting as a guarantor State, was the one to which Moldova,
in the framework of its positive obligations, should have addressed itself
intensively, by invoking the responsibility of Russia under the Convention.
I cannot see any dividing line between the time of ratification in 1997
and the present whether in May 2001 or at any other time.
3. The situation in Moldova is different from that described
in the Cyprus v. Turkey judgment (10 May 2001, § 78, Reports of Judgments
and Decisions 2001-IV) where the Court referred to the continuing inability
of the Republic of Cyprus to exercise its Convention obligations in Northern
Cyprus as there was a full military occupation of Northern Cyprus by Turkey.
In the present case there is no occupation of the Transdniestrian territory
even though there is a rebel regime and the Russian Federation
exercises a decisive influence and even control in that territory. But
Moldova had and still has important means of influence to fulfil its positive
obligations which it did not exercise with determination and effect. It
even adopted an attitude of cooperation in different fields of administration
and concluded administrative agreements with the rebel regime which made
Judge Casadevall speak of a rather acquiescent attitude. However, where
a State is prevented by circumstances from exercising its authority over
parts of its territory because of a rebel regime, its responsibility may
be engaged even if it does not show such a lack of commitment or effort
as to amount to tacit acquiescence in the activities of the illegal administration.
If one has to conclude that there is tacit acquiescence, then it would
be difficult to attach responsibility to the rebel regime for the breach
of international law. Such acquiescence would also make it difficult for
the State in question to accept the support of third States in its struggle
with the rebel regime. For the assisting State this could easily amount
to an unjustified intervention. Consequently, a breach of a positive obligation
can therefore already be found where there is evidence before the Court
which does not show clear collusion or acquiescence in the exercise of
authority by a rebel regime within the territory but nevertheless discloses
an intermediate situation, as in the present case, where the State has
not acted with all the required determination and effort which would have
been possible.
4. It is not for the Court to exclude any tacit agreement
or acquiescence between States on the exercise of authority and control.
But under the Convention in all these cases the State is under the positive
obligation to ensure that the Convention rights and freedoms continue to
be observed.
The most crucial question is what measures the Court should indicate
as being absolutely necessary for the fulfilment of that positive obligation.
In my view, in order not to be held tacitly to acquiesce in the acts of
the rebel authority the State has to
(a) continue its firm protests at bilateral and international
levels against the illegal exercise of authority on its territory;
(b) continue to take all possible and legally acceptable measures
to regain full control on its territory;
(c) continue to seek support, bilaterally and internationally,
in particular through international organisations, for all measures taken
against the illegal regime, since the Contracting States are required to
secure human rights protection throughout their territory; and
(d) not lend such support to the rebel regime as could be interpreted
as clear acquiescence in its exercise of authority.
Questions about the efficacy of stricter measures like an economic
blockade etc. to ensure the protection of human rights in the short term,
or the usefulness of economic, cultural and other cooperation to resolve
the situation, are matters of political evaluation and diplomacy, to which
the Court has cautiously tried to avoid giving an answer.
5. In contrast to the situation in Cyprus, relations between
the Moldovan constitutional authorities and the authorities of the illegal
Transdniestrian regime have never been completely interrupted. As the Court
has emphasised, there were relations concerning the administration of Tiraspol
airport, a common telephone system and understandings and cooperation on
many levels. Since the issue is whether Moldova continues to exercise jurisdiction
over parts of the territory, all these elements of economic relations,
political security and other cooperation between the Moldovan and Transdniestrian
authorities make it difficult to rebut the responsibility of Moldova in
the present case. The situation is therefore closer to that in the case
of Assanidze v. Georgia ([GC] no. 71503/01, ECHR 2004-...) than to that
of the aforementioned Cyprus v. Turkey case. In the former case concerning
the Ajarian region, the constitutional authorities of Georgia encountered
difficulties in securing compliance with the rights guaranteed by the Convention
throughout this territory. In the present case the positive obligation
to re-establish full authority and control would demand a continued and
firm assertion of the illegality of the Transdniestrian regime and of the
rights of the Moldovan Government over the whole country. This must be
done using all State powers, be they judicial, executive or legislative.
I cannot see in the maintaining of judicial measures only a symbolic effect.
However, there was also a clear reduction in the number of attempts by
Moldova at international level to assert its authority in Transdniestria
as of September 1997, and a definite diminution in their efforts to secure
the applicants’ rights, even if account is taken of the extensive efforts
made by Mr Sturza.
6. It will always be difficult to assess such a mosaic
of measures, but if one recognises that the Russian Federation had jurisdiction
over Transdniestria at the material time, and continues to exercise control,
then one realises that there was an obvious lack of formal protests, declarations
or other measures towards the Russian Federation, third countries, the
United Nations and other international organisations, in an attempt to
influence them to bring the illegal situation in Transdniestria and the
applicants’ unacceptable situation to an end.
PARTLY DISSENTING OPINION OF JUDGE SIR NICOLAS BRATZA, JOINED BY JUDGES
ROZAKIS, HEDIGAN, THOMASSEN AND PANT?RU
1. While I am in agreement with the conclusion of the majority
of the Court that the responsibility of the Russian Federation was engaged
in respect of the breaches of the Convention alleged by the applicants
and found to be established, I am unable to share the view of the majority
that the responsibility of Moldova was similarly engaged.
2. Central to the case against both respondent States is
the question whether the applicants are to be regarded as “within their
jurisdiction” for the purposes of Article 1 of the Convention. If they
are to be so regarded, State responsibility will in principle attach for
breaches of the Convention which are shown to have occurred or to have
continued after the coming into effect of the Convention – in the case
of Moldova, 12 September 1997 and in the case of Russia, 5 May 1998.
3. It is established in the Bankovic decision (Bankovic
& Others v. Belgium and 16 Other Contracting States, no. 52207/99,
§ 59-61, ECHR 2001-XII) that the notion of “jurisdiction” in Article 1
of the Convention is essentially territorial in nature and that it is only
in exceptional cases that acts performed or producing effects outside the
territory of a Contracting State can constitute an exercise of “jurisdiction”
for this purpose. Conversely, the presumption that persons within the territory
of a State are within its “jurisdiction” for Convention purposes is a rebuttable
one and, exceptionally, the responsibility of a State will not be engaged
in respect of acts in breach of the Convention which occur within its territory.
This is apparent from the Cyprus v. Turkey judgment ([GC], no. 25781/94,
§ 78, ECHR 2001-IV) where the Court referred to “the continuing inability
[of the Republic of Cyprus] to exercise its Convention obligations in northern
Cyprus” and thus to “the regrettable vacuum in the system of human rights
protection” which would follow from a finding that the applicants were
not within the jurisdiction of Turkey.
4. The principal questions which fall to be determined
are (i) whether this is an exceptional case in which the applicants are
to be regarded as within the “jurisdiction” of the Russian Federation despite
being at all material times outside the territory of that State and (ii)
whether, being within the territory of Moldova, the applicants are to be
regarded as within its “jurisdiction” so as to engage the responsibility
of that State or whether, exceptionally, the presumption that they were
and are within Moldova’s jurisdiction is rebutted. The two questions are
closely linked and depend, as the Court’s judgment makes clear, on a close
analysis of the factual situation existing in, and relating to, the Transdniestrian
region from 1991 until the present day.
A. Applicable principles
5. The circumstances in which a State may be held responsible
for acts in breach of the Convention occurring outside its territory were
addressed and defined in the Court’s judgments in Loizidou v. Turkey (Preliminary
Objections) (judgment of 23 March 1995, Series A no. 310), Loizidou v.
Turkey (Merits) (judgment of 18 December 1996, Reports 1996-VI, 2216) and
Cyprus v. Turkey (cited above) and in its Bankovic decision (cited above).
Such responsibility may, so far as relevant, attach:
(i) where as a consequence of military action – whether
lawful or unlawful – a State exercises effective control of an area outside
its national territory. Such control may be exercised directly, through
its own armed forces or (indirectly) through a subordinate local administration
(Loizidou, (Preliminary Objections) § 62). Where a State exercises effective
overall control of a territory, its responsibility cannot be confined to
the acts of its own soldiers or officials – whether or not those acts are
authorised by the high authorities of the State – “but must also be engaged
by virtue of the acts of the local administration which survives by virtue
of [the] military and other support” (Cyprus v. Turkey, § 77). Further,
when such effective control is found to exist, responsibility attaches
even if no detailed control is exercised over the policies and actions
of the local administration (Loizidou, (Merits) § 56).
(ii) where a State, through the consent, invitation or
acquiescence of the Government of the territory, exercises all or some
of the public powers normally to be exercised by that Government (Bankovic,
§ 71).
6. There is less direct authority as to the converse case
– the responsibility of a State within whose territory violations of the
Convention occur but which is prevented from exercising any effective control
within the territory in question, whether due to military occupation by
the armed forces of another State, or to acts of war or rebellion within
the territory or to the occupation and control of the territory by a separatist
administration sustained by rebel forces or by another State. It is clear
that an individual remains “within the jurisdiction” of the State and that
the presumption of State responsibility is not rebutted where the State
concerned is shown to collude with the local administration in the exercise
of authority by that administration within the territory concerned. Further,
even if a State does not exercise effective control within a part of its
territory, an individual will be treated as within that State’s “jurisdiction”
in respect of acts in violation of the Convention occurring within that
part, if its servants or agents can be shown to have participated directly
or indirectly in the particular acts in question or to have acquiesced
in the commission of those acts.
7. The majority of the Court go further, holding 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, it does not thereby cease to have “jurisdiction”
for the purposes 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; rather, 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.” (paragraph
333 of the judgment). The nature of the positive obligation thereby incurred
is variously described in the judgment as a “duty to take all the appropriate
measures which it is still within its power to take” to ensure respect
for the Convention rights and freedoms (paragraph 313); an “obligation
... 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” (paragraph
331); and a duty to “endeavour, with all the legal and diplomatic means
available to it vis-?-vis foreign States and international organisations,
to continue to guarantee the enjoyment of the rights and freedoms guaranteed
by the Convention” (paragraph 333). In the opinion of the majority, the
Court’s role is not to indicate what measures the authorities should take
in order to comply with their obligations most effectively but rather to
verify that the measures actually taken were appropriate and sufficient
in the present case, the Court’s task being “to determine to what extent
a minimum effort was nevertheless possible and whether it should have been
made” (paragraph 334 of the jugdment). Applying these principles in the
concrete case, the majority of the Court find that “the applicants are
within the jurisdiction of the Republic of Moldova for the purpose 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” (paragraph 335).
8. I am unable to agree with this analysis. In the first place,
I have difficulty in accepting the proposition that those within a part
of the territory of a State over which, as a result of its unlawful occupation
by a separatist administration, the State is prevented from exercising
any authority or control may nevertheless be said to be within the “jurisdiction”
of that State according to the autonomous meaning of that term in Article
1 of the Convention, which term presupposes that the State has the power
“to secure to everyone....the rights and freedoms” defined therein. I find
it equally difficult to accept the conclusion of the majority of the Court
that in such a factual situation those within the territory remain “within
[the] jurisdiction” of the State but that the scope of that “jurisdiction”
is reduced, the State continuing to owe positive obligations with regard
to the Convention rights of everyone in the territory. The very use of
the term “the positive obligations of the State” and the reliance placed
in the judgment on the case-law of the Court under Article 1 concerning
such obligations appears to me to be both misleading and unhelpful in the
present context. That case-law – with its references to the fair balance
to be struck between the general interest and the interests of the individual
and the choices to be made in terms of priorities and resources – was developed
in a factual context where the respondent State exercised full and effective
control over all parts of its territory and where individuals within that
territory were indisputably within the “jurisdiction” of the State for
Convention purposes. The Court’s reasoning cannot in my view be readily
adapted to the fundamentally different context in which a State is prevented
by circumstances outside its control from exercising any authority within
the territory and where the very issue is whether individuals within the
territory are to be regarded as within the “jurisdiction” of the State
for Convention purposes.
I am unable to accept that in such a situation responsibility
for a violation of the Convention rights of individuals within the territory
may attach to the State merely because of a failure on its part to establish
that it had made sufficient efforts on the legal or diplomatic plane to
guarantee those rights. In the specific context of the present case, the
responsibility of a State in respect of the wrongful detention of persons
detained within territory outside its effective control cannot in my view
depend on whether at any particular point of time the State is, in the
estimation of the Court, making sufficiently concerted efforts to secure
their release. Nor can I accept an interpretation of the Convention which
would require the Court to make an assessment, in a complex and fluctuating
international situation, as to whether particular legal or diplomatic measures
would be effective to restore constitutional rule within the territory,
whether such measures were in practice possible and whether they were adequately
implemented by the State concerned.
9. I can agree that, where a State is prevented from exercising
any authority or control over territory within its borders, the inaction
of the State concerned may nevertheless be held to engage its responsibility
under the Convention in respect of those within the territory. However,
such responsibility could in my view only attach in exceptional circumstances
where the evidence before the Court clearly demonstrates such a lack of
commitment or effort on the part of the State concerned to reassert its
authority or to reinstitute constitutional order within the territory as
to amount to a tacit acquiescence in the continued exercise of authority
or “jurisdiction” within the territory by the unlawful administration.
B. Application of the principles in the present case
1. The Russian Federation
10. Applying these principles to the facts of the present
case, I am in full agreement with the reasoning of the majority of the
Court in holding that, at all material times, the applicants were, and
in the case of three of the applicants continue to be, within the “jurisdiction”
of the Russian Federation for the purposes of Article 1 of the Convention
and that responsibility accordingly attaches for the violations of the
Convention which have been found by the Court. In particular, I find the
following facts to be established on the evidence before the Court:
(i) During the conflict in 1991-92, forces of the Fourteenth
Army (after 1 April 1992, the Russian Operational Group – ROG) stationed
in Transdniestria fought with and on behalf of the separatist forces within
the territory and voluntarily transferred to them, or allowed to be seized
by them, large quantities of armaments.
(ii) Throughout the conflict, the leaders of the Russian
Federation provided political support to the Transdniestrian separatists,
inter alia, through their public declarations.
(iii) The applicants were arrested in June 1992 with the
direct participation of soldiers of the former Fourteenth Army/ROG; the
first three applicants were detained in the garrison headquarters of the
former Fourteenth Army/ROG where they were severely ill-treated; and the
applicants were subsequently surrendered by the Army authorities into the
charge of the separatist police in the knowledge of the offences of which
they were suspected and the likely consequences for the applicants of their
surrender to the illegal and unconstitutional regime.
(iv) Following the ceasefire agreement of 21 July 1992,
the Russian Federation continued to provide military, political and economic
support to the separatist regime within the territory and thereby ensured
its continued survival.
(v) In the period after ratification of the Convention,
the Russian Federation, through its continued stationing of troops on Moldovan
territory in breach of its undertaking to withdraw, combined with its economic,
financial and political support for the illegal Transdniestrian regime
which it had helped to establish, has continued to enable the regime to
survive and to exercise authority and control within the territory.
2. Moldova
11. I would note at the outset that, unlike the situation
examined by the Court in its recent Assanidze v. Georgia judgment ([GC]
no. 71503/01, ECHR 2004-...), the present case is not one in which the
Moldovan authorities are merely “[encountering] difficulties in securing
compliance with the rights guaranteed by the Convention in all parts of
their territory” (judgment, paragraph 146). As noted in the present judgment
(paragraph 330), it is common ground that, from the beginning of the conflict
in 1991 until the present day, Moldova has been, and continues to be, prevented
from exercising any authority or control within the territory of Transdniestria
as a result of the occupation of the territory by the unlawful separatist
regime. Moreover, the majority of the Court acknowledge in the judgment
that, in the period from 1991 until the date of ratification of the Convention
by Moldova in September 1997, not only did Moldova bear no responsibility
for the acts in violation of the Convention of which the applicants complain
but no criticism can be made of a lack of commitment or effort on the part
of Moldova to reassert its control within the territory or to secure the
applicants’ rights. This is, in my view, plainly correct.
During the course of the hostilities themselves, the constitutional
authorities of Moldova, faced as they were by forces which were superior
in numbers, weaponry and fighting strength, were incapable of re-establishing
control over the Transdniestrian territory. Moreover, as is noted in the
judgment, from the outset of hostilities the Moldovan authorities not only
rejected the separatists’ unilateral declaration of independence but publicly
complained of the aggression against Moldova, calling for international
support. Even after armed hostilities had ceased, the Moldovan authorities
had no practical possibility of re-establishing constitutional rule within
the territory, being confronted by a regime which was supported militarily,
politically and economically by the Russian Federation. There is nothing
to suggest any acquiescence on the part of those authorities in the control
exercised within the territory by the unlawful separatist administration;
on the contrary, as the evidence shows and as the judgment points out,
the authorities continued to denounce the regime and to assert their sovereignty
over the territory both internally and internationally. Thus, for example,
in 1994 Moldova adopted a new Constitution which provided, inter alia,
for the possibility of granting a certain degree of autonomy to Transdniestria;
in the same year, Moldova signed with the Russian Federation an agreement
for the total withdrawal of Russian troops from the territory within a
three-year period.
12. As regards the position of the individual applicants,
not only was their arrest, detention and treatment while in custody not
imputable in any sense to the Moldovan authorities, but, as emphasised
in the judgment, there is nothing to suggest any collusion or acquiescence
on their part in any of the acts in violation of the Convention of which
complaint is made. The evidence shows that, on the contrary, the executive
and judicial authorities of the State took a number of steps to emphasise
the unlawfulness of what had occurred and to secure the release of the
applicants, in particular by quashing the applicants’ convictions, by instituting
criminal proceedings against those responsible for their prosecution and
conviction and by systematically raising the question of the applicants’
release in discussions with both the separatist leaders and the authorities
of the Russian Federation.
13. In a declaration made by Moldova and contained in the
instrument of ratification of the Convention deposited on 12 September
1997 it was stated that Moldova would 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”. While the Court in its decision on the
admissibility of the application held that the declaration was not a valid
reservation for the purposes of Article 57 of the Convention, there is
no reason to doubt that the declaration represented an accurate statement
of the factual situation at the date of ratification.
14. It is in the period after September 1997 that the majority
of the Court have found the Moldovan authorities to be open to criticism.
Since it is accepted that Moldova exercised no control within the territory
of Transdniestria, it is not suggested that the State bears direct responsibility
for the Convention violations of which complaint is made; rather, the majority
have found that the responsibility of Moldova for such violations is engaged
on the grounds of its failure to discharge its positive obligations to
take sufficient, effective and appropriate measures to secure the applicants’
Convention rights. However, the judges making up the majority are divided
as to the relevant date from which Moldova may be said to have failed to
fulfil such obligations and thus as to the responsibility of Moldova for
the acts in breach of the Convention which are found to have occurred.
One group (“the first group”), whose views are reflected in the Partly
Dissenting Opinion of Judge Casadevall, considers that Moldova failed in
its positive obligations from the date of entry into force of the Convention
in September 1997 and that accordingly Moldova is responsible for violations
of the Convention occurring after that date; the other group (“the second
group”), whose views are represented in the judgment itself, considers
that such a failure occurred only after May 2001 and that Moldova’s responsibility
is not engaged in respect of violations occurring before that date, including
those complained of by Mr. Ilascu who was released from detention in that
month. It is necessary to deal with the reasoning of both groups and I
consider first the opinion favouring a more extensive responsibility on
the part of Moldova.
(a) Responsibility from September 1997
15. The conclusion of the first group that Moldova was
in breach of its positive obligations from the date of the coming into
effect of the Convention appears to be based on three principal factors:
- an alleged reduction in the number of attempts by Moldova
to assert control in Transdniestria and the limiting of those attempts
to diplomatic activity;
- the development of administrative, economic, political,
security and other cooperation between the Moldovan and Transdniestrian
authorities; and
- a diminution in the measures taken and efforts made by
Moldova to secure the applicants’ rights.
It is convenient to address in turn each of these factors, none
of which in my view, seen either individually or collectively, is such
as to justify a finding of State responsibility on the part of Moldova.
16. As to the first of the factors relied on, it is true
that there appears to have been a diminution in the judicial measures in
Moldova designed to assert authority over the Transdniestrian territory.
In particular, it would seem that the investigation into the offences alleged
against the applicants which had been ordered by the Supreme Court did
not take place and that the criminal investigation opened in respect of
the Governor of Hlinaia Prison on 16 August 2000 was not followed up. In
addition, on the same date the order of 28 December 1993 opening an investigation
in connection with the persons involved in the applicants’ prosecution
and conviction was declared void.
17. I do not attach great significance to the failure to
pursue these measures, which had not over the years proved effective in
bringing to an end or undermining the illegal regime within the territory
and the effect of which appears to have been at most symbolic. Special
emphasis is laid by the first group on the fact that, having reclassified
the charges against those responsible for prosecuting and convicting the
applicants on 16 August 2000, the Moldovan authorities failed to pursue
an investigation on the grounds that the proceedings were time-barred and
that the persons under suspicion were refusing to assist the authorities
with their inquiries. While, as observed in the opinion of the first group,
doubt may be expressed about the seriousness of a criminal investigation
in which the authorities waited for seven years before reclassifying the
offence, there is no evidence to show that the decision to reclassify the
offences or the decision that the charges were time-barred under domestic
law were decisions taken otherwise than in good faith and on justifiable
legal grounds. Moreover, the stance taken by the judicial authorities affords
in my view no support for the contention that the authorities had renounced
any efforts to reassert control over their territory.
18. More importantly, as the judgment recognises, in and
from 1998, the efforts of the Moldovan authorities were directed more towards
diplomatic activity designed to bring about an overall settlement of the
situation in the region and the restoration of constitutional rule in the
Transdniestrian territory. In particular, in March 1998, the authorities
of Moldova, the Russian Federation, Ukraine and the region of Transdniestria
signed a number of instruments with a view to settling the Transdniestrian
conflict (judgment, paragraph 97); numerous contacts and negotiations took
place between representatives of Moldova and the separatist regime with
the same purpose (judgment, paragraphs 103-4 and 171); and from 2002 to
the present day a number of proposals for resolution of the situation have
been put forward and discussed between the authorities of Moldova, the
Russian Federation and the OSCE (judgments, paragraphs 106-109). I see
no reason to doubt the assertion of the Moldovan Government, which was
supported by the evidence of Mr Sturza (Annex, §§ 309-313) and Mr Sidorov
(Annex, § 446), that this change of strategy towards diplomatic approaches
was aimed at laying the ground for the return of the Transdniestrian territory
within the Moldovan legal order and thereby restoring the constitutional
rights of those living within the territory, including the applicants.
I can find nothing in the efforts which have been made and continue to
be made by the Moldovan authorities to negotiate an overall settlement
to suggest support for the separatist regime or acquiescence in its continued
unlawful exercise of authority within the territory.
19. The reliance placed on the measures of cooperation
with the separatist authorities is, I consider, to be viewed in the same
light. Special attention is drawn in the opinion of the first group to
economic cooperation agreements, the establishment of relations between
the Moldovan Parliament and the so-called “Parliament of the MRT”, cooperation
in police and security matters and forms of cooperation in other fields
such as air traffic control, telephone links and sport. The Moldovan Government
explained that these cooperative measures had been taken out of a concern
to improve the every day conditions of those living in Transdniestria and
to allow them to live as normal lives as possible. No convincing grounds
have been advanced for doubting that this was the underlying aim – an aim
which is accepted in the opinion of the first group to be a laudable one
- and, given their nature and limited character, the measures cannot, in
my view, be seen as affording any support for the Transdniestrian regime.
On the contrary, they represent a confirmation by Moldova of its desire
to re-establish control over the entirety of its territory.
20. The first group criticise the fact that, in taking
steps to improve the conditions of life of those within the territory,
the Moldovan authorities have not displayed the same diligence with regard
to the fate of the applicants. While asserting that it is not for the Court
to assess the pertinence or effectiveness of the political strategy adopted
by Moldova in order to settle as crucial a question as that of its territorial
integrity, the first group nevertheless go on to observe that the Moldovan
authorities remain under an obligation “to take all the measures in their
power, whether political, diplomatic, economic, judicial or other measures...,
to secure the rights guaranteed by the Convention to those formally within
their jurisdiction, and therefore to all those within Moldova’s internationally
recognised borders”. However, quite apart from my disagreement with the
suggestion that those in territory of Transdniestria are to be regarded
as within the “jurisdiction” of Moldova for Convention purposes, these
criticisms overlook, in my view, that the very purpose of the political
strategy was and is to restore constitutional rule to the separatist territory,
which remains an essential pre-condition for securing the Convention rights
of all those within the territory, including the applicants themselves.
21. The alleged lack of effort on the part of the Moldovan
authorities since 1997 specifically directed to securing the Convention
rights of the applicants is the third of the principal factors relied on
by the first group. Complaint is made that, after the date of ratification,
the efforts to secure the applicants’ rights “were not pursued with the
firmness, determination and conviction required by the serious situation
which the applicants found themselves in.” It is said that, since that
date, the measures taken by Moldova to secure the applicants’ rights have
been confined to sending doctors to Transdniestria to examine them in prison,
providing financial assistance to their families and intervening through
Mr Sturza, with a view to securing their release.
22. I find it difficult to understand this criticism insofar
as it relates to the period from 1997 until 2001. Mr Mosanu gave evidence
that the issue of the applicants was raised at OSCE meetings, at meetings
with foreign States and at a meeting of the Inter-Parliamentary Union (Annex,
§ 249). The unchallenged evidence of Mr Sturza, the former Minister of
Justice and Chairman of the committee for negotiations with Transdniestria,
was that he had continued after 1997 to raise the question of the applicants’
release with the separatist authorities. It was following those negotiations
that Mr Sturza went to Transdniestria in April 2001 to bring back to Chisinau
the four applicants, whom he was deceived into believing would all be released
(Annex, § 312) and, according to the evidence before the Court, it was
at least in part as a result of these negotiations that Mr Ilascu was in
fact released in the following month. Having regard to the fact that the
Moldovan authorities still hoped at the time to secure the release of the
other three applicants, unlike the first group, I do not find it in the
least surprising that Mr Chevtsov was permitted to enter Moldova bringing
Mr Ilascu with him “without being called to account in any real sense for
[his] activities in the regime’s service”.
23. I can accordingly agree with the view of the second
group of judges forming part of the majority that the responsibility of
Moldova was not engaged in respect of any of the violations of the Convention
found to have occurred prior to May 2001. The question remains whether
such responsibility was engaged after that date.
(b) Responsibility after May 2001
24. The conclusion of the second group that the responsibility
of Moldova was engaged after May 2001 is not founded on any reduction since
that date in the number of judicial measures intended to assert Moldovan
authority in Transdniestria; on the contrary, according to the second group,
the reduction in the number of measures is not to be seen as 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 tried by Moldova
had been blocked by “MRT” reprisals in 2001 and 2002 (judgment, paragraph
344). Instead, the reasoning of the second group is founded essentially
on a claimed lack of evidence that since Mr. Ilascu’s release effective
measures have been taken by the Moldovan authorities to put an end to the
continuing infringements of the applicants’ Convention rights. It is said
that, apart from Mr. Sturza’s evidence that the applicants’ situation continued
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” (judgment, paragraph 348).
25. It is true that after May 2001 the negotiations with
the representatives of the Transdniestrian administration and of the Russian
Federation appear to have focused on reaching an overall settlement of
the conflict rather than on the particular situation of the three applicants
who remained in detention. Moreover, according to the evidence of Mr Sturza,
after that date Mr Smirnov had refused any further meetings to discuss
the issue of the remaining applicants (Annex, § 313). However, according
to the uncontradicted evidence of the same witness, not only did the negotiations
include the question of what was to be done about criminal sentences imposed
by the Transdniestrian authorities in the previous ten years, but, as conceded
in the judgment, he continued regularly to raise the issue of the release
of the three applicants with his Tiraspol counterpart in the committee
for negotiations on Transdniestria (Annex, § 309).
26. While acknowledging that these efforts were made, reliance
is placed in the judgment on the fact that the question of the applicants’
situation was only raised orally (paragraph 348) and that the Court has
not been informed of any overall plan for the settlement of the Transdniestrian
conflict which deals with their situation (paragraph 348). It is also stated
that there is no evidence before the Court of any approach by the Moldovan
authorities to the Russian authorities aimed at obtaining the release of
the remaining applicants (paragraph 349). While both points are true, I
am wholly unpersuaded that the absence of such material serves to support
the majority’s conclusion that Moldova has failed to take sufficient, effective
or appropriate measures to secure to the applicants their Convention rights.
Still less am I able to accept that the evidence before the Court establishes
any acquiescence on the part of the Moldovan authorities in the continued
detention of three of the applicants.
27. For these reasons, I have concluded that the applicants
were at no material time within the “jurisdiction” of Moldova for the purposes
of Article 1 of the Convention, that Moldova has not failed to discharge
any obligation in respect of the applicants imposed by that Article and
that the responsibility of Moldova is accordingly not engaged in respect
of the violations of the Convention complained of by the applicants, whether
before or after May 2001.
28. It follows that I have not only voted against the finding
that there has been a violation by Moldova of the Convention rights of
any of the applicants but also against the finding that Moldova should
make payments to the applicants by way of just satisfaction. I have voted
with the majority in respect of all other paragraphs of the operative part
of the judgment (including the finding that Moldova failed to discharge
its obligations under Article 34 of the Convention), save as to the award
of compensation in paragraph 21(c) in respect of non-pecuniary damage on
account of the Russian Federation’s failure to discharge its obligations
under Article 34. In my view, even if such a failure is to be seen as “a
violation of the Convention” for the purpose of Article 41 of the Convention
so as to permit the award of just satisfaction, which I consider doubtful,
I do not regard it as appropriate to make such an award in the present
case.
PARTLY DISSENTING OPINION OF JUDGE LOUCAIDES
I would first like to reiterate the view which I expressed in
the case of Assanidze v. Georgia ([GC] no. 71503/01, ECHR 2004-...) as
regards the notion of “jurisdiction” within the meaning of Article 1 of
the Convention, dealt with in paragraphs 310 to 314 and 319 of the judgment
in the present case.
“To my mind ‘jurisdiction’ means actual authority, that is to
say the possibility of imposing the will of the State on any person, whether
exercised within the territory of the High Contracting Parties or outside
that territory. Therefore, a High Contracting Party is accountable under
the Convention to everyone directly affected by any exercise of authority
by such Party in any part of the world. Such authority may take different
forms and may be legal or illegal. The usual form is governmental authority
within a High Party’s own territory, but it may extend to authority in
the form of overall control of another territory even though that control
is illegal (Loizidou v. Turkey (Preliminary Objection) judgment of 23 March
1995, Series A no. 310), notably occupied territories (Cyprus v. Turkey
[GC], no. 25781/94, ECHR-2001-IV). It may also extend to authority in the
form of the exercise of domination or effective influence through political,
financial, military or other substantial support of a government of another
State. And it may, in my opinion, take the form of any kind of military
or other State action on the part of the High Party concerned in any part
of the world (see, by way of contrast Bankovic, cited in the judgment).
The test should always be whether the person who claims to be
within the ‘jurisdiction’ of a State, High Contracting Party to the Convention,
in respect of a particular act can show that the act in question was the
result of the exercise of authority by the State concerned. Any other interpretation
excluding responsibility of a High Contracting Party for acts resulting
from the exercise of its State authority would lead to the absurd proposition
that the Convention lays down obligations to respect human rights only
within the territory under the lawful or unlawful physical control of such
Party and that outside that context, leaving aside certain exceptional
circumstances (the existence of which would be decided on a case-by-case
basis), the State Party concerned may act with impunity contrary to the
standards of behaviour set out in the Convention. I believe that a reasonable
interpretation of the provisions of the Convention in the light of its
object must lead to the conclusion that the Convention provides a code
of behaviour for every High Contracting Party whenever they act in exercise
of their State authority with resulting consequences to individuals.”
I wish to expand my aforesaid position by adding that a State
may also be accountable under the Convention for failure to discharge its
positive obligations in respect of any person if it was in a position to
exercise
its authority directly or even indirectly over that person or over the
territory where such person is.
In the light of the above and the facts and circumstances of
the case as set out in the judgment, I agree with the majority that applicants
come within the “jurisdiction” of the Russian Federation for the purposes
of Article 1 and that its responsibility is engaged with regard to the
acts complained of. As rightly pointed out in the judgment it has been
proved “that the ‘MRT’, set up in 1991-1992 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
thanks to the military, economic, financial and political support given
to it by the Russian Federation” (paragraph 409 of the judgment).
However I disagree with the majority that the applicants come
under the “jurisdiction” of the Moldovan Government and that Moldova is
responsible for failure to discharge its positive obligations to take sufficient
effective and appropriate measures to secure the applicants’ Convention
rights. There is nothing to show that the Moldovan Government actually
had any direct or indirect authority over the territory where the applicants
were detained or over the applicants themselves. The Moldovan Government
were in no way responsible for the illegal detention of the applicants
or for the continuation of such detention. There is nothing to show that
the Moldovan Government acquiesced in or encouraged the existence of the
illegal regime which at all material times (with the support of Russia
as already explained) exercised actual authority in the area where the
violations occurred and where the applicants were detained.
None of the factors set out by the majority in support of their
conclusion that Moldova had jurisdiction over the applicants could possibly,
in my opinion, be considered as tantamount to an exercise or avoidance
of exercising effective authority in respect of the applicants. In this
respect I also associate myself with the approach of Sir Nicolas Bratza
as set out in paragraphs 15 to 26 of his partly dissenting opinion.
In any case, to conclude that there is “jurisdiction” over certain
persons for the purposes of the Convention simply because the Government
concerned have failed to take judicial, political, diplomatic and economic
measures or any other of the measures invoked by the majority, with the
object of securing the Convention rights of the applicants even though
actual authority over these persons on the part of the Government was lacking,
would be stretching the concept of “jurisdiction” to an unrealistic and
absurd extent. In other words it would, in my opinion, be a fallacy to
accept that a High Contracting Party to the Convention has “jurisdiction”
over any person outside its authority simply because it does not take the
political or other measures mentioned in general terms by the majority.
Such a position would lead, for instance, in my view to the illogical conclusion
that all High Contracting Parties to the Convention, would have jurisdiction
and responsibility for violations of the human rights of persons in any
territory of a High Contracting Party, including their own but outside
their actual authority (either de facto or de jure or both depending on
the territory), merely by virtue of not pressing to secure the Convention
rights in that territory through action against the State which does in
reality exercise such authority over these persons.
I believe that the interpretation of a treaty should avoid a
meaning which leads to a result which is manifestly absurd.
In the Bankovic decision (with which I personally disagree) the
Grand Chamber of the Court found that the bombing of buildings in Belgrade
resulting in the killing of 16 civilians was an extraterritorial act outside
the “jurisdiction” of the High Contracting Parties to the Convention responsible
for such bombing and for that reason the relevant complaint of the relatives
of the deceased was dismissed as inadmissible. It seems to me incomprehensible
and certainly very odd for a High Contracting Party to escape responsibility
under the Convention on the ground that the throwing of bombs from its
aeroplanes over an inhabited area in any part of the world does not bring
the victims of such bombing within its “jurisdiction” (i.e. authority)
but a failure on the part of such Party “to take all the measures in [its]
power whether political diplomatic, economic, judicial or other measures
... to secure the rights guaranteed by the Convention to those formally
[de jure] within its jurisdiction” but in actual fact outside its effective
authority ascribes jurisdiction to that State and imposes on it positive
duties towards them.
At all events I believe that the authorities of Moldova have
in fact done everything that could reasonably be expected from them in
the particular circumstances of this case. It would be unrealistic and
unfair to attribute to them any responsibility for the situation complained
of by the applicants.
DISSENTING OPINION OF JUDGE KOVLER
(Translation)
“The frontier between the judicial and the political is not what
it was. Nor are the foundations of legitimacy, still less normativeness,
which is becoming plural and increasingly diffuse” (Lajoie A., Jugements
de valeurs, Paris PUF, 1997, p. 207)
I regret that I do not find myself among the majority and that,
while I respect my colleagues’ opinions, I have to express publicly, by
virtue of Article 45 § 2 of the Convention, my deep disagreement with the
Grand Chamber’s judgment in the present case.
My disagreement concerns the methodology of the analysis, the
way the facts are presented, the analysis of the concepts of “jurisdiction”
and “responsibility, and lastly the conclusions the Court has reached.
I am therefore obliged to spend some time on each of those points.
I. Methodology of the analysis
This case provides an example of a situation in which “human
rights become a policy” (Gauchet M., La d?mocratie contre elle-m?me, Paris,
2002, p. 326). In view of the particular nature of the case, in which the
applicants’ situation is indissociable from an extremely complex geopolitical
context, the Court finds itself in new territory, given the lack of applicable
case-law. The Court’s judgment in this case could have set a precedent
for similar situations in other zones of conflict within the member States
of the Council of Europe, including those which have joined recently. The
historical roots of the conflict in which the countries of the region were
involved and the “fragmenting-empire” effect are features which bring to
mind conflicts such as the not-so-very distant Balkans or Caucasus have
seen.
However, the Court (wrongly in my opinion) preferred to see the
situation in terms of a Cyprus-type conflict, following its corresponding
case-law and falling into the trap that that case-law represented. To my
mind that was a methodological error. The superficial similarities between
the present case and the Loizidou case are deceptive. The only point in
common (to which I will return) is the source of the conflict, namely the
prospect for a sizeable community of being attached to another country
from which it is radically differentiated by its historical, economic and
cultural ties. Hence the reactions and counter-reactions of the participants
in the conflict, which took violent forms and led to human tragedies.
However, even this Loizidou case-law has many lessons to teach
us in that it can help us avoid hasty and simplistic conclusions. In his
dissenting opinion in the Loizidou case Judge Bernhardt, joined by Judge
Lopes Rocha, pointed out: “[In] the present case ... it is impossible to
separate the situation of the individual from a complex historical development
and a no less complex current situation” (Loizidou v. Turkey, (Merits)
judgment of 18 December 1996, Reports 1996-VI, p. 2242). Noting the failure
of the negotiations aimed at the reunification of Cyprus, which had caused
the applicant’s situation to drag on, he asked: “Who is responsible for
this failure? Only one side? Is it possible to give a clear answer to this
and several other questions and to draw a clear legal conclusion?” (ibid.).
In another dissenting opinion in the same case Judge Pettiti
observed: “[...] however hesitant the international community has been
in attempting to solve the international problems over Cyprus since 1974
... those responsibilities being of various origins and types, the whole
problem of the two communities (which are not national minorities as that
term is understood in international law) has more to do with politics and
diplomacy than with European judicial scrutiny based on the isolated case
of Mrs Loizidou and her rights under Protocol No. 1” (ibid., pp. 2253-2254).
The caution and wisdom of those words is entirely justified.
Unfortunately, in the present case the Court took the risk of
examining on the basis of the isolated situation of the four applicants
(since, unlike the position in Cyprus, no system for the reproduction of
similar cases has come to light) a nexus of different problems: military
(the judgment contains an analysis of the military aspects of the Transdniestrian
conflict and a detailed calculation of weapons stocks worthy of a headquarters
staff), economic (assessment of the relations between partners who have
been operating for decades in the same economic space), political (hard-to-verify
quotations from “undated” statements by political leaders and military
personnel). Admittedly, the Court was overwhelmed by the huge volume of
contradictory information from the applicants, the three States who were
involved in the proceedings and its own on-the-spot fact-finding mission;
it performed an enormous and highly creditable task of selection. But the
strictly legal questions (for example, what legal classification to give
to the right of peoples to self-determination, within limits, or the first
applicant’s repeated calls to violence before he was arrested) have gone
unanswered. In my opinion, that was a second methodological error, which
led to a series of further errors.
II. Presentation of the facts
In such a complex and “sensitive” case as this the detailed and
objective presentation of the circumstances of the case plays a crucial
role, since it determines how the case is to be prejudged, in the positive
sense of that term. In my view the general context of the case is presented
summarily in a way that distorts the facts considerably. It is the point
of view imposed by the applicants, for purposes that can be readily understood,
which dominates. I can only single out a few facts, and the way they have
been interpreted, which give false images of the true position.
The crucial difficulty in establishing the general context of
the case is identification of the origins and main problems of the Moldovan-Transdniestrian
conflict. In fairly complicated and tricky cases such as Gorzelik v. Poland
(no. 44158/98, judgment of 17 February 2004) and Assanidze v. Georgia ([GC]
no. 71503/01, ECHR 2004-...), the Grand Chamber went back as far as the
14th century in order to analyse the Silesian problem (see § 13 of the
Gorzelik judgment) and even the 11th century to shed light on the status
of Ajaria within Georgia (see paragraphs 100-107 of the Assanidze judgment).
In the present case what is left unsaid is more eloquent than what is said:
a snapshot of the removal of part of Bessarabia from Romania on 28 June
1940 as a result of the Molotov-Ribbentrop pact and the transfer from Ukraine
of “a strip of land on the left bank of the Dniester” in order to form
Soviet Moldavia gives the impression that the history of this multi-ethnic
region begins there (paragraph 28) – all of this being in the form of a
reference (and a very selective one, it has to be said) to an OSCE document.
But the document cited, like any other historical overview, gives a more
complete idea of the history of the region, which I recapitulate briefly
below.
The Principality of Moldavia, which was created in 1360 after
being detached from Hungary, fell in 1456 under the domination of the Ottoman
Empire, which lasted for several centuries. In 1711 Prince (gospodar) Dmitri
Kantemir (whose son, Antiokh, incidentally, was to become an eminent Russian
writer and serve as Russian ambassador in London and Paris) came to an
agreement with Peter the Great concerning the protection of Moldavia, and
it was in 1791 through the treaty signed following the war between Turkey
and the Russo-Austrian coalition (whose forces were led by A. Suvorov)
that Russia obtained control of the left bank of the Dniester, where a
high proportion of the population were Slavs. In 1812, following a renewed
outbreak of war between Russia and Turkey, the Treaty of Bucharest incorporated
in the Russian Empire the eastern part of Moldavia between the Prut and
the Dniester under the name of Bessarabia. The southern part of Bessarabia
is inhabited by Bulgarians and Gagauz (a Turkish-speaking Christian people).
After the Crimean War (1854-1856) Russia, in accordance with the Treaty
of Paris (1856), ceded part of Bessarabia to the victor States. This territory
was included in the Kingdom of Romania (created in 1859), but by the Treaty
of Berlin (1878) Bessarabia was returned to Russia and Romania obtained
Dobruja in compensation. In January 1918 Romania occupied Bessarabia and
secured a vote from the local assembly in favour of its attachment to the
Kingdom. At the same time the Directory of Ukraine (at that time independent)
proclaimed its sovereignty over the left bank of the Dniester (48% of the
population at that time being Ukrainians, 30% Moldavians, 9% Russians and
8.5% Jews), and in 1924 a Moldavian autonomous republic was created there.
After 1924 the USSR compelled Romania to hold a plebiscite in Bessarabia
(negotiations in Vienna) before occupying Bessarabia on 28 June 1940. That
is the controversial history of the region which since 1940 has formed
a Moldavian entity whose two halves each have their own historical, economic,
cultural and linguistic particularities. Those particularities have not
escaped the attention of informed observers: “Transdniestria, the majority
of whose population is made up of Russians and Ukrainians, has always felt
close to Russia, which it was part of for two centuries. When the USSR
broke up, Transdniestria rejected the first independent Moldovan Government’s
policy of union with Romania” (Lib?ration, Paris, 1 August 2002).
As regards language and script, I do not wish to speculate on
a very delicate problem and regret that the Court gives a rather simplistic
account of the subject (paragraph 28 of the judgment), and that brings
me to two quotations. “The first known text in Romanian dates from 1521:
it is a letter written by the boyar Neascu to the mayor of Brasov... These
texts, translated from Slavonic (the liturgical language of Orthodox Slavs
but also of Romanians), were written in Cyrillic script. ... It was not
until the 19th century however that the modern Romanian language was finally
established, strongly influenced by French – a process some have referred
to as ‘re-latinisation’. It was also at that time that use of the Latin
alphabet took the place of Cyrillic” (Source: Atlas des peuples de l’Europe
Centrale, Paris, La D?couverte, 2002, p. 137). As for the languages used,
the 1978 Constitution of Soviet Moldavia enshrined “equal rights, including
the right to use the national language” (Article 34) and “schooling in
the national language” (Article 43) and provided: “statutes and other legislation
... shall be published in Moldavian and Russian” (Article 103) and “justice
shall be administered either in Moldavian and Russian, or in the language
of the majority of the population of the region” (Article 158).
I have added these historical digressions in order to reiterate
the Court’s position as expressed in the following dictum: “The Court considers
that it should as far as possible refrain from expressing a view on purely
historical questions, which it has no jurisdiction to adjudicate; however,
it can accept certain historical facts which are a matter of common knowledge
and base its reasoning on them” (see Zdanoka v. Latvia, judgment of 17
June 2004, § 77; see also Marais v. France, Commission decision of 24 June
1996, DR 86, p. 184, and Garaudy v. France (dec.), no. 65831/01, ECHR 2003-IX).
But it turns out that the “historical facts” are considerably distorted
in our judgment, and as a result, to my great regret, some of the reasoning
is too.
Paragraphs 30 to 41 mention in no particular order the build-up
to and development of the Moldovan-Transdniestrian conflict, stressing
the military aspects, as if the major problem was the Fourteenth Army and
the equipment of DOSAAF (which, incidentally, was not a State body under
the legislation in force). As a national judge I wish to point out that
the break-up of the USSR in 1988-1991 affected not only the 15 Soviet Republics
which proclaimed their sovereignty one after another (often referred to
as the “parade of sovereignties”), but also territories within certain
multinational republics such as Nagorno Karabakh, Abkhazia, Chechnya and
so on. Moldova did not avoid this general movement, especially as the Moldovan
Popular Front had proclaimed as its aim the union of Moldova in its entirety
with Romania, the laws on language and the new flag mentioned in paragraph
29 being only the first step. Gagauzia, a Turkish-speaking region, proclaimed
its sovereignty first, on 18 August 1990, followed by Transdniestria on
2 September 1990. This was not, in my opinion, the result of “resistance
to Moldovan independence” (paragraph 43 of the judgment), but rather resistance
to the policy of refusing the right to self-determination. Let us not forget
(and this is another of the things left unsaid in the judgment) that the
first operation by the special forces of the Moldovan police, launched
against “separatists” in Dubasari on 12 June 1990, preceded the above proclamations,
and therefore prompted them.
It is in that situation, in my opinion, that the Court should
have sought the roots of the conflict, which had direct repercussions on
the fate of the four applicants, rather than just in the declaration of
2 September 1990 concerning the creation of the “Moldavian Republic of
Transdniestria”, as paragraphs 30 to 34 of the judgment suggest.
Legally speaking, the declarations mentioned did not mean at
that tumultuous time a declaration of separation (as evidenced by the presence
of the word “Moldavian” in the title of the “MRT”), but a declaration of
the desire to obtain greater autonomy, including the right to a referendum
on continued allegiance to the State entity in the event of that entity
proclaiming its union with a foreign State, a prospect which was perceived
as a real danger. “The emergence in 1990 of the first autonomist movements,
followed in August 1991 by the proclamation of independence, encouraged
the adoption between Kishinev (Chisinau) and Bucharest of a plan for the
integration of Moldova into Romania or its annexation. But that plan, which
the Moldovans initially found attractive, was abandoned when, on 6 March
1994, in a referendum, to Bucharest’s great displeasure, 95.4% of Moldovan
electors voted against attachment to Romania. But, hostile to the idea
of the Republic’s independence, and even more so to the possibility of
its attachment to Romania, the Slav populations living for the most part
in Transdniestria, a 5000 square kilometre territory to the east of the
Dniester, proclaimed their autonomy”, wrote Jean-Christophe Romer, a professor
at the Institut des Hautes Etudes europ?ennes and the Ecole Sp?ciale militaire
de Saint-Cyr (Romer J.-Ch., G?opolitique de la Russie, Paris, Economica,
1999, p. 63).
I would add to the above analysis that in February 1992 the 2nd
Congress of the Moldovan Popular Front proclaimed Moldova, including the
region of Transdniestria, an integral part of Romania, and that it was
in March 1992 that the hostilities between the special police forces and
the “separatists” began. On 19 June 1992 – a black day – came the beginning
of the operation of the Moldovan special forces in Benderi. The result:
416 deaths among the civilian population. It was only on 29 July 1992 that
the first detachments of the Russian peacekeeping forces entered Tiraspol
in accordance with the Russo-Moldovan agreement of 21 July 1992. I could
continue to reconstruct the course of events, but I will stop there. I
merely observe that the section on the “general background to the case”
in the text of the judgment makes up for the absence of certain important
facts by abundant quotations from political declarations reflecting a single
approach to interpretation of the events. It is therefore not easy to find
out where the truth lies. Once again, I deplore that fact.
I further regret that the Court did not take into consideration
the fact that the events of 1992 (“pacification” operation by the central
authorities, armed resistance by the rebels, transitional period just after
the break-up of the USSR, etc.) constituted in reality a case of force
majeure in which all the parties involved directly or indirectly in the
conflict, including the Fourteenth Army, took part.
I am also tempted to give my more finely shaded version of the
armed conflict in 1991-1992, as I think that the really abnormal size of
this part of the judgement (paragraphs 42 to 110), the sole aim of which
is manifestly to demonstrate Russia’s participation in the conflict and
its military support to the separatists, is the result of the methodological
error mentioned above. Even in the inter-state case of Cyprus v. Turkey
the Court was much more “economical” with this type of analysis, concentrating
on the legal problems.
However, although I do not wish to load down the text, I cannot
ignore the “Cossack question”. The judgment repeats an assertion made by
the applicants that “in 1988 there [were] no Cossacks in Moldovan territory”
(paragraph 60). I would just like to point out that as early as 1571-1574
the Ukrainian Cossacks took part in a war of liberation to free the Moldavians
from Ottoman domination and that free Cossacks had been living in Moldavia,
Podolia and Zaporozhia for centuries (see among other sources Longworth
Ph., The Cossacks, London, 1969). The Cossacks were victims of Stalinist
terror but were rehabilitated by the Russian Parliament’s decree of 16
June 1992 as part of the rehabilitation of the peoples which had fallen
victim to repression. It was only on 9 August 1995 that the President of
the Russian Federation signed the Ordinance on the Register of Cossack
associations and on 16 April 1996 the Ordinance on civil and military service
by Cossacks. Freedom of movement and the paramilitary nature of their organisation
are well-known features of Cossack life. It may be said that these are
merely details, but the devil is in the detail.
There are quite a few of these details in the text, including
“undated” statements by the Russian Vice-President (§ 137 of the judgment),
an “undated” television appearance by the Russian President (paragraph
138), a television interview broadcast “on an unspecified date” (paragraph
145), and so on, notwithstanding the position stated by the Court in the
following terms in paragraph 26: “In assessing both written and oral evidence
the Court has hitherto generally applied ‘beyond a reasonable doubt’ as
the standard of proof required”. I am astonished that, contrary to the
clarifying information supplied to the Court, paragraph 141 of the judgment
reproduces (“takes as established”!) false information to the effect that
Russia organised the election of 17 March 2004 “without the agreement of
the Moldovan authorities”. The Russian Federation’s electoral legislation
provides for polling by Russian citizens abroad in ad hoc polling stations
(and therefore not always in “fixed consular posts, operating as polling
stations”) only with the agreement of the authorities of the State in question.
I regret that the Court, whose judgments are studied everywhere in the
minutest detail, has in many places failed to apply the criterion formulated
in paragraph 26.
It is also a pity that in setting out the general background
to the case the Court has not always followed the principle it established
itself in the Ireland v. the United Kingdom case as follows: “In the cases
referred to it, the Court examines all the material before it, whether
originating from the Commission, the Parties or other sources, and, if
necessary, obtains material proprio motu (Ireland v. the United Kingdom,
judgment of 18 January 1978, Series A no. 25, p. 64, § 160).
For example, I regret that the Court has carefully avoided making
any mention in its judgment of the activities of the “Bujor” group and
the applicants before their arrest (except in paragraph 216, referring
to the judgment of 9 December 1993). But the documents supplied to the
Court are eloquent on that point. In the interview with Mr Ilascu which
appeared in the Leningrad periodical Smena on 6 December 1990, he gave
details of the notorious “Directive No. 6”. “We have two blacklists”, he
said. “In the first there are 23 names, the whole of the leadership of
the so-called Republic of Transdniestria. In the second there are 480,
the members of their Second Congress. Serious preparations have been made
for their physical liquidation.” The conclusion was: “We have politicians
who must always remain clean, but someone has to do the dirty work.” From
statements of the type “we are capable of organising a huge bloodbath”
to concrete acts was only a short step. The names of the victims of those
acts are known, as are the names of their widows and orphans. It is not
by chance that the eminent specialists mentioned in paragraph 286 of the
judgment proposed that the applicants should be retried in a neutral country,
as did the Secretary General of the Council of Europe, in fact, who did
not exclude “a possible new trial of M. Ilascu in a neutral place” (SG/Inf.(2000)53,
19 January 2001). What is the point of all the United Nations resolutions
on the prevention of terrorism? Unfortunately the Court has given no reply
to these questions, but it refused the request of one of the widows, Mrs
Ludmila Goussar, to give evidence to the Court (see paragraph 8).
III. Analysis of the concepts of “jurisdiction” and “responsibility”
But I regret even more deeply the fact that an opportunity has
been missed to apply to a situation not hitherto considered a finer analysis
of the concepts of “jurisdiction” and “responsibility”. Not claiming to
be entitled to the last word as custodian of the truth, I would nevertheless
like to explain how I see the problem.
My initial position, which I expressed in the vote on admissibility
on 4 July 2001 (and which I still hold), was that the Court should declare
the application inadmissible ratione loci and ratione personae as regards
Russia, while recognising Moldova’s jurisdiction over Transdniestria but
at the same time noting that it did not have de facto control over the
region, at least at the time when the applicants were arrested.
The Court could have gone on from such findings to reach the
finding of a “legal vacuum” or “lawless area” to which the Convention provisions
are inapplicable de facto. That idea is neither absurd nor new. The “motion
for a recommendation” entitled “Lawless areas within the territory of Council
of Europe member states” presented by Mr Magnusson, a Swedish member of
the Parliamentary Assembly (backed by a number of his colleagues), included
the following passage:
“The Assembly feels compelled to admit, however, that there are
a number of areas within the territory of certain member states where the
European Convention on Human Rights and other human-rights protection instruments
do not apply in practice.
This has become clear firstly from the case-law of the European
Court on Human Rights, some of whose judgments have not been executed;
examples are the Loizidou v. Turkey case, concerning the northern part
of Cyprus, and the Matthews v. United Kingdom case, concerning Gibraltar.
In addition, ‘lawless’ areas have developed in separatist regions
such as Chechnya, Transnistria, Abkhazia or Nagorno-Karabakh.”
In a sense, the territorial reservation made by Moldova on ratifying
the Convention pleads in favour of recognising the existence of a “legal
vacuum” in the region, a kind of “black hole” in the European legal area,
especially as such a finding could be accompanied by recognition that Moldova
does not have de facto control over the territory concerned. I am pleased
to be a member of the majority on that point at least, namely that Moldova
has jurisdiction, even if only in the limited terms of “jurisdiction ...
as regards its positive obligations” (point 1 of the operative provisions).
Nevertheless, I consider that the preponderance of the territorial
principle where “jurisdiction” within the meaning of Article 1 of the Convention
is concerned applies fully to Moldova, its responsibility and its obligations
towards the applicants, even if these are limited de facto (see paragraph
313 of the judgment). In any case, Transdniestria is not a no man’s land
or terra nullius in international-law terms: the international community
continues to regard Transdniestria as an integral part of Moldova. The
very fact that Moldova made a reservation in respect of Transdniestria
when it ratified the Convention proves that in the long term it has not
discharged its obligations towards that territory. To accept the opposite
would be to present a priceless gift to all the separatists in the world
by enabling them to say that for the first time an international court
had recognised that part of a State’s territory was outside the jurisdiction
of the central authorities. I only regret that the majority held Moldova
responsible only from 2001 onwards, in spite of the established fact that
after 1994, and especially after it joined the Council of Europe in 1997,
Moldova did not take any steps whatsoever to secure the applicants’ retrial
or release. In that respect I agree with most of the arguments in the partly
dissenting opinion of Judge Casadevall and the colleagues who joined him.
The problem of “extraterritorial” jurisdiction is much more complex.
I firmly believe that the Court should follow the traditions of the “case-law
of concepts”, in other words start from the idea that the essential concepts
of contemporary positive law have been established by generations of jurists
and should not be called into question except in exceptional cases. That
was the Court’s unanimous position in the Bankovic case: “The Court is
of the view, therefore, that Article 1 of the Convention must be considered
to reflect this ordinary and essentially territorial notion of jurisdiction,
other bases of jurisdiction being exceptional and requiring special justification
in the particular circumstances of each case” (Bankovic and Others v. Belgium
and 16 other Contracting States (dec.), no. 52207/99, paragraph 61, ECHR
2001-XII). The Court went on to say that it needed to be “satisfied that
... exceptional circumstances exist in the present case which could amount
to the extraterritorial exercise of jurisdiction by a Contracting State”
(ibid., paragraph 74).
What exceptional circumstances could justify such a conclusion
in the present case?
The Court, in my humble opinion, has chosen the easy way out
by applying in its judgment criteria laid down in another exceptional case,
the difficult-to-ignore Loizidou case, and drawing from that precedent
the following, too vague, conclusion: “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” (§ 314
of the present judgment). The first criterion for identifying such “acts”
to be found in the Loizidou judgment is the occupation through targeted
military action of the territory of the other State. But that was not the
case here, where the Soviet military forces had been stationed in the region
for decades.
Even supposing that there was a “military action” such as there
was in Cyprus, Judges G?lc?kl? and Pettiti were absolutely right in seeking
to separate “responsibility” from “jurisdiction”: “While the responsibility
of a Contracting Party may be engaged as a consequence of military action
outside its territory, this does not imply exercise of its jurisdiction”
(Loizidou (Preliminary Objections) judgment, Series A no. 310, p. 35).
The two concepts are to an extent autonomous in relation to each other,
though it might be objected that the distinction is academic.
Why has the Court neglected this very important difference of
meaning in the present case, and not filled in a gap in its case-law, given
the lack of a valid criterion applicable to extraterritorial jurisdiction?
In my view it was in order to reach more direct conclusions via the concept
of responsibility (see paragraphs 314 to 317 of the judgment). It is jurisdiction
(territorial or extraterritorial) which is a primary concept, responsibility
being derived from jurisdiction rather than the contrary. The Court has
indirectly confirmed this subordination by holding that Moldova has jurisdiction
but excluding its responsibility before 2001! But in seeking to determine
whether the Russian Federation has jurisdiction it preferred the opposite
logic in holding that there is “jurisdiction” because there is “responsibility”.
Even if it is accepted that the question is whether responsibility
attaches to a respondent foreign State, it would be necessary to prove
that the respondent State (a) continues to exercise its responsibility,
the latter having been engaged through a subordinate local administration;
and (b) continues to control the whole of the territory in question through
a large number of troops engaged in active duties and exercising “effective
overall control over that part of the island” , as noted in the preliminary
objections in the Loizidou case. These two aspects were discussed in particular
in paragraph 70 of the admissibility decision in the Bankovic case, in
which the Court emphasised this territorial aspect throughout the decision
before concluding: “The Court is not persuaded that there was any jurisdictional
link between the persons who were victims of the act complained of and
the respondent States” (Bankovic, cited above, paragraph 82).
In determining whether the Russian Federation was responsible
for the acts complained of, the Court, referring to the Cyprus v. Turkey
judgment, uses the notion of “overall control over an area outside its
national territory” (paragraph 316). I refer in that connection to the
Court’s assessment in the Loizidou case: “Turkey actually exercises detailed
control over the policies and actions of the authorities of the ‘TRNC’.
It is obvious from the large number of troops engaged in active duties
in northern Cyprus ... that her army exercises effective overall control
over that part of the island” (paragraph 56 of the above-mentioned judgment).
If my memory serves me right, I learned during my initial military training
that the term “active duty” presupposes control of roads and railways,
surveillance of strategic points (telegraph-telephone posts), and control
of stations, airports, frontiers etc. Even without being a military strategist,
anyone can compare the two situations: in one case 30,000 troops in a small
territory inhabited by between 120,000 and 150,000 people, and in the other
2,500 officers and other ranks in a territory of 4,163 square kilometres
with an 852 kilometre-long border and a population of more than 750,000!
Lastly, I come to the major difference, which is that there was no military
invasion from outside the territory with the aim of establishing such control:
the Russian troops, who had only just ceased to be Soviet troops (two-thirds
of them originally hailing from the region), were caught out by events
in the place where they had been stationed for many years without interfering
in administrative matters. Those troops are not engaged in any “active
duties” except guarding the weapons stocks and equipment due to be moved
out.
As regards subordination of the local administrative authorities
to the Russian authorities, the mere fact that those authorities have frequently
prevented evacuation of the military equipment is revealing. After releasing
one of the applicants under international pressure the authorities of the
“MRT” continue to hold the others in spite of the obvious interest of their
presumed “guardian” in disposing of the embarrassing problem – if this
is an example of an administration “subject to the authority of a foreign
power”, it is a rather strange one.
The other argument pleading in favour of the Russian Federation’s
responsibility is that the “MRT” was set up in 1991-1992 with the Russian
Federation’s support. I am obliged to point out that the birth of the “MRT”
was proclaimed on 2 September 1990, more than a year before the USSR broke
up and Russia attained independence as a sovereign State. Here I am reminded
of La Fontaine: “If it wasn’t you, it must have been your brother. – I
have no brother! – Well, it must have been one of your family anyway...”.
The Moldovan Government’s argument that Russia, as the successor State
to the USSR, assumes full responsibility for the acts of that State is
invalidated by the international-law rule that where the responsibility
of a subject of law is engaged on account of the conduct of another subject
of law its responsibility can only be indirect (Dictionnaire de droit international
public, Brussels, 2001, pp. 996-997).
For that reason alone, unlike the position regarding the proclamation
of the TRNC, Russia could not be responsible for that act. In addition,
it has never recognised the “MRT” as an independent State. The Treaty of
friendship and cooperation between the Russian Federation and the Republic
of Moldova signed on 19 November 2001 is clear on that point: “The parties
condemn separatism in all its forms and undertake not to lend any support
to separatist movements” (Article 5 § 2). But the Court prefers to reproduce
“undated” irresponsible statements by certain members of parliament and
former politicians as “evidence” of political support.
The “evidence” of alleged economic support (paragraphs 156 to
160 of the judgment) does not withstand verification. I compare below the
findings in the judgment with the observations of an NGO, the British Helsinki
Human Rights Group (BHHRG), which has analysed the situation in the region.
Exports of gas “on favourable financial terms” (paragraph 156).
According to the BHHRG, the cost of 1,000 cubic metres of gas supplied
by Russia to Transdniestria in 2003 was USD 89, the same price as gas supplied
to Estonia (USD 36 for Belarus, USD 50 for Georgia).
“Transdniestria receives electricity directly from the Russian
Federation” (paragraph 157). According to the BHHRG, the electricity market
is controlled by the Spanish company “Union Fenosa”, which produces electricity
using the gas bought from Russia.
“The Russian firm ‘ITERRA’ bought the R?bnita engineering works”.
(paragraph 160). In August 2003 alone, a single Liechtenstein company bought
15.6% of the shares in the factory.
It is the American company Lucent Technologies which controls
all telecommunications, it is in Germany that banknotes are printed, it
is the European Union which awarded the “Arc of Europe” prize to textile
production by the “Intercentre Llux” company, and so on. (Source: British
Helsinki Human Rights Group, Transnistria 2003: Eye in the Gathering Storm,
– www.bhhrg.org).
Next argument: supplying arms to the separatists. The applicants
assert (without giving any concrete evidence) that the Fourteenth Army
supplied weapons to the separatists, a fact which, in their opinion, engages
even more the responsibility of the Russian Federation. Not being a specialist
in the subject, I refer to a reliable source: “The organised looting of
weapons began after the proclamation of Moldova’s sovereignty on 23 June
1990 and had become a serious problem by the time of the break-up of the
USSR in 1991 (there was a similar situation in Chechnya, Abkhazia and other
places); 21,800 rifles, ammunition and even tanks were ‘expropriated’.
It was thanks to the efforts of the commanding officer of the Fourteenth
Army, General Lebed, that some of these weapons were seized and returned
to the stores. An investigation was opened by the military prosecutor”
(Commersant (a Russian newspaper), 21 July 2001). The region’s industrial
potential makes it capable of producing practically all types of conventional
weapons; even today arms sales account for a large part of the region’s
income, as the Court mentions (paragraph 161 of the judgment).
In the final analysis, I have not found in the factual material
concerning the military, political and economic aspects any valid evidence
capable of establishing a limited or continuing intervention by Russia
in favour of Transdniestria, or proof of the “MRT”‘s military, political
or economic dependence on Russia.
In my heart of hearts, I regret that there is no evidence of
what is now called “humanitarian intervention”, a more noble form of the
military interventions of the past. I wish to be absolutely honest about
Russia’s responsibility in this respect. I am convinced that it was responsible
for not intervening more energetically in 1992 to protect the civilian
population and prevent the loss of more than 850 lives (including the use
of political and diplomatic means to dissuade the Moldovan authorities
from conducting a punitive military expedition against their own population).
Where other powers do not hesitate to hoist the flag of humanitarian intervention
in order to establish what has been called “the new military humanism”
(see: Chomsky N., The New Military Humanism, Lessons from Kosovo. L, 1999),
the Russian authorities of the time preferred a wait-and-see approach,
leaving some of their soldiers and officers (mostly originating from the
region concerned) to decide alone what was the right thing to do, which
meant whether or not to defend their families.
I therefore propose to answer an obvious question: as a subject
of international law, was Russia really capable in practice of assuming
its responsibilities in the “MRT”, that is to say the task of solving problems
or dealing with a systematic situation? To assist in finding the reply,
I refer to the Ireland v. the United Kingdom judgment: “A practice incompatible
with the Convention consists of an accumulation of identical or analogous
breaches which are sufficiently numerous and inter-connected to amount
not merely to isolated incidents or exceptions but to a pattern or system;
a practice does not of itself constitute a violation separate from such
breaches” (Ireland v. the United Kingdom, judgment of 18 January 1978,
Series A no. 25, paragraph 159). It is only where, behind a personal situation,
systematic violations can be perceived that a foreign State’s objective
responsibility can be engaged; that is my reading of the judgment cited,
especially as the applicants did not submit evidence of systematic violations
of the same kind.
The other rule of international law confirmed by our case-law
is that a State’s extraterritorial responsibility is engaged to the extent
that its agents exercise their authority over supposed victims or their
property (Cyprus v. Turkey, Commission decision, DR 2, p. 125, at p. 137).
Did that really apply to the four applicants outside the brief period of
their arrest in 1992?
Apart from the factual aspects, account has to be taken of the
legal aspect of the question of a State’s international responsibility.
I refer to a document of capital importance: Resolution 56/83
adopted on 12 December 2001 by the UN General Assembly entitled “Responsibility
of States for internationally wrongful acts”, the result of a number of
years work by the International Law Commission (“the ILC”). In referring
to the work of the ILC, paragraph 320 of the judgment raises the problem
of a State’s responsibility on account of a violation of an international
obligation, emphasising in paragraph 321 “continuing violations” in the
light of Article 14 § 2 of the Resolution. But Article 13 of the same document
states: “An act of a State does not constitute a breach of an international
obligation unless the State is bound by the obligation in question at the
time the act occurs.”
That rule quite obviously confirms the ratione temporis rule
in our own case-law. In other words, before establishing the continuing
nature of a violation (in our case, the arrest and pre-trial detention
of the applicants), it is advisable to ascertain whether the alleged violation
does not fall outside the Court’s jurisdiction ratione temporis.
On the subject of the ratione temporis rule, one of the pillars
of the European Court’s case-law, I very much fear that it will be shattered
by the construction put upon the term “jurisdiction” in the present judgment
in the following passage: “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” (paragraph 384).
Indeed, as neither Moldova, nor still less Russia, had ratified
the Convention at the material time (1992), they cannot be accused of breaching
an international obligation by which they were not yet bound. Consequently,
neither Article 14 (Extension in time of the breach of an international
obligation) nor Article 15 (Breach consisting of a composite act) of the
Resolution mentioned are applicable, contrary to what the Court says in
its judgment (paragraph 321).
On the other hand, a different provision of the work of the ILC
is to my mind entirely applicable to consideration of alleged Russian responsibility,
as it confirms the force majeure hypothesis:
“The wrongfulness of an act of a State not in conformity with
an international obligation of that State is precluded if the act is due
to force majeure, that is the occurrence of an irresistible force or of
an unforeseen event, beyond the control of the State, making it materially
impossible in the circumstances to perform the obligation.” (Article 23
§ 1).
My question is: did the very height of a civil war constitute
a situation of force majeure within the meaning of Article 23 as cited
above, given that the respondent State, the Russian Federation, did not
provoke the situation for the simple reason that it did not yet exist as
a subject of international law?
In my opinion, the Court cannot derogate from the rule confirmed
by the Commission’s opinion in the case of Ribitsch v. Austria: in determining
whether the responsibility of a respondent State is engaged, the Court
applies the provisions of the Convention on the basis of the objectives
of the Convention and in the light of the principles of international law.
The Commission went on to say: “The responsibility of a State under the
Convention, arising for acts of all its organs, agents and servants, does
not necessarily require any ‘guilt’ on behalf of the State, either in a
moral, legal or political meaning” (Ribitsch v. Austria, Commission’s opinion,
4 July 1994, Series A no. 336, paragraph 110).
IV. Violation of Article 34 of the Convention
As regards the finding of a violation of Article 34 by Moldova
and Russia, I just wish to say that I am shocked by the use of a stolen
document (or a bought one – it makes little difference) – a diplomatic
note. I am embarrassed to have to point out that it is an elementary principle
in all judicial proceedings that evidence obtained unlawfully cannot be
taken into consideration. Encouraging breaches of the confidentiality of
diplomatic correspondence, contrary to the Vienna Convention of 18 April
1961 on diplomatic relations, and especially Article 24 thereof which states
that the archives and documents of diplomatic missions “shall be inviolable
at any time and wherever they may be”, by a complicit quotation (paragraph
278 of the judgment) and by taking the content into consideration (paragraph
481 of the judgment) seems to me to be unworthy of a European judicial
body.
Confidential consultations are a normal practice in international
relations – indeed, a practice endorsed by the Russo-Moldovan treaty of
19 November 2001, Article 3 § 1 of which provides: “Being firmly committed
to ensuring peace and security, the High Contracting Parties will hold
regular consultations on major international problems and on questions
of bilateral relations. Such consultations and exchanges of views will
embrace ... questions of interaction within the OSCE, the Council of Europe
and other European structures”. In addition, by producing a leaked diplomatic
note the applicants were breaking the rule against abuse of the right of
petition (Article 35 § 3 of the Convention) and thus making themselves
liable to the known consequences in the Court’s practice. Unfortunately,
they suffered no such fate. As the immortal La Fontaine put it: “Someone
told me. I must have my revenge.”
V. On application of Article 41 of the Convention
As regards the sums awarded to the applicants, especially the
first applicant, who has been free since 2001, the Court in my opinion
has gone beyond the previous limits for sums awarded in the event of the
finding of violations of Articles 3 and 5 of the Convention, even in the
most horrifying cases. Having already crossed the established threshold
in the recent Assanidze v. Georgia judgment (cited above), in which it
generously awarded the applicant 150,000 euros “in respect of all the damage
sustained”, the Court has now gone further in the present case, perhaps
on account of the length of the applicants’ detention. Be that as it may,
what I object to is that while holding that there had been no violation
of Article 1 of Protocol No. 1 the Court thought it necessary to mention
the subject of pecuniary and non-pecuniary damage, observing in paragraph
510 of the judgment: “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.” That argument
is unconvincing in my opinion and even dangerous for the future case-law,
as it imprudently opens Pandora’s box.
VI. Is the judgment enforceable
Lastly, I realise the objective impossibility for the second
respondent State of enforcing the Court’s judgment to the letter, going
over the head of sovereign Moldova, particularly in order to put an end
to the applicants’ detention. (I voted “for” on point 22 of the operative
provisions in the light of all the possible approaches). It will be still
more difficult to take general measures, as required by the Committee of
Ministers of the Council of Europe. In the Drozd and Janousek judgment
the Court said: “[...] the Convention does not require the Contracting
Parties to impose its standards on third States or territories” (Drozd
and Janousek v. France and Spain, no. 12747/87, judgment of 26 June 1992,
Series A no. 240, paragraph 110). When that is translated into the language
of international law, it surely means that neither the Convention nor any
other text requires signatory States to take counter-measures to end the
detention of an alien in a foreign country – the United Nations Declaration
on the Inadmissibility of Intervention and Interference in the Internal
Affairs of States (Res. 26/113 of 9 December 1981) is still in force. Unless,
on reading our judgment, people welcome the appearance right in the heart
of old Europe of a new condominium like the New Hebrides. But I very much
doubt that that would be a desirable development.
Case of Ilascu, Ivantoc, Lesco and Petrov-Popa v. Moldova and Russia
(Application no. 48787/99)
Judgment (Annex)
Strasbourg, 8 July 2004
CASE OF ILASCU AND OTHERS v. MOLDOVA AND RUSSIA
(Application no. 48787/99)
JUDGMENT
ANNEX
SUMMARY OF STATEMENTS BY THE WITNESSES BEFORE THE COURT’S DELEGATES
STRASBOURG
8 July 2004
This judgment is final but it may be subject to editorial revision.
Page
1. Ilie ILASCU
495. Until his arrest in June 1992 the applicant was living
in Tiraspol. He had been living there for ten years. In 1992 the applicant
was chief economist in an enterprise based in Tiraspol. He was also the
leader of the Tiraspol branch of the Democratic Christian Popular Front
of Moldova, a position he had held since October 1989, when this party
was created. On account of his political activity, pressure was put on
him, grenades and stones were thrown into his house and he was finally
fired from the position he held as chief economist. In February his family
had had to take refuge in Chisinau. However, the applicant remained in
Tiraspol.
496. On the morning of 2 June 1992, around 4.30 a.m., as
his dog in the courtyard started to bark, the applicant looked out of the
window and saw armed soldiers dressed in camouflage and bullet-proof vests,
jumping over the fence and taking up combat positions. The soldiers were
wearing uniforms of the Fourteenth Army with the emblems of the Soviet
Union.
The applicant’s family, who were in Tiraspol for a few days,
were sleeping. The applicant went to lock the door of the house, which
was unlocked. The door then suddenly opened and five or six soldiers broke
in and hit him in the face with the butt of a gun and tied his arms behind
his back. He was then taken out and put in a Volga car. When taken out,
he saw that in the courtyard and around it there were two armoured vehicles
at the end of the street and around 50-60 soldiers led by a colonel accompanied
by a lieutenant-colonel, whose name was, the applicant learned later, Vladimir
Gorbov. The applicant also recognised among the people who started to search
his house a certain Victor Gushan from the Transdniestrian secret services.
The applicant claims that he had no arms or explosives in his house. When
the applicant’s wife asked them why they had arrested the applicant, Mr
Gushan said it was because the applicant was the leader of the Popular
Front of Moldova, and as they were at war with Moldova the applicant was
considered to be dangerous and had to be detained.
497. The applicant was taken to the building of the Ministry
of Security in Tiraspol and put into a cell in the basement. When first
arrested the applicant was told that arms had been found in his house or
that he was suspected of having arms in his house.
498. Some time later the applicant was taken to a room
where he was interrogated by Vadim Shevtsov, “Minister of Security of the
MRT” and three other colonels who were dressed in Fourteenth Army uniforms.
On the third day interrogations started to take place during the night,
one interrogation led by Vladimir Gorbov, another one by the three colonels.
The applicant heard from the guards that the three colonels were from the
secret services of the Fourteenth Army counter-intelligence division. During
the interrogation led by Mr Gorbov relating to his political activity the
applicant was accused of committing terrorist acts in Slobozia district.
During the second interrogation a bargain was proposed to him, under the
terms of which he, as leader of the Popular Front, would co-operate and
say that he had been trained in Romania by special troops, somewhere near
Brasov, that he had been armed by Romanians and sent to Transdniestria
to carry out terrorist acts against the Russian civil population in Transdniestria.
The applicant denied all these accusations and refused to accept such a
bargain. Consequently, he was repeatedly beaten and subjected to psychological
torture.
499. During his first week of detention he had had no food
at all. On many occasions during the initial investigation he was not allowed
to sleep. The guards would come into the cell at 5 a.m., the bed would
be stood up against the wall and he would then not be allowed to sleep
until they had taken the bed down again.
500. After five or six days, maybe more, the applicant
was blindfolded and was taken to another place. When food was brought to
him he saw soldiers of Fourteenth Army and was told that he was in the
military garrison of the Fourteenth Army. The applicant realised the next
day that he knew the building, as he had been there before, when he was
arrested in 1989 also by the Fourteenth Army, after founding the Popular
Front.
501. At the time when he was detained at the military garrison
of the Fourteenth Army in 1992, the commander was Colonel Mikhail Bergman,
whom the applicant remembers as having been the only one who treated him
humanely. Mr Bergman never took part in the interrogations.
During his detention there, the applicant saw only Mr Godiac
and Mr Ivantoc. One day, the door of his cell opened and Ivantoc was asked
by Gorbov, Bergman and the other investigators to identify him, which he
did. The applicant did not know Mr Ivantoc at that time, but Mr Ivantoc
certainly knew him as he was the leader of the Popular Front.
502. During his detention at the military garrison of the
Fourteenth Army, the applicant was taken out to be interrogated in various
offices probably on the second floor, certainly on a floor above the cells.
He was not very badly ill-treated, as the offices had walls painted in
white and there was a risk of traces being left. However, interrogations
also took place during the night, in his own cell, whose walls were painted
in black. There, he would be very badly beaten. During one of the beatings
some of his teeth were broken. As a result of the beatings the applicant
was left with a disabled kidney.
503. The applicant was also subjected to psychological
torture. He was told that Cossacks had come to his flat and kidnapped his
wife and two daughters, and then raped them, that his wife and one of the
daughters had been found and taken to the psychiatric hospital, but that
the second daughter had not been found. He was then asked to give in and
sign a confession. Three days later Mr. Gorbov came back and told him that
his second daughter had been found dead and urged the applicant to sign
so that he could go home and give his daughter a Christian burial. The
applicant lost control of himself and hit Gorbov. As a result, he was seriously
ill-treated.
504. During his detention in the charge of the Fourteenth
Army, the applicant was subjected to four mock executions.
505. In all, the applicant was detained at the military
garrison of the Fourteenth Army for two months. On 23 August Mr Bergman
introduced the applicant to the new commander of the Fourteenth Army, Alexandr
Lebed. After a couple of minutes of discussions between the applicant and
Mr Lebed the new commander of the Fourteenth Army gave Mr Bergman two hours
to remove the applicants from there. On the same day Mr Bergman, accompanied
by five or six officers and four soldiers of the Fourteenth Army with automatic
weapons and a dog called Ceank, took the applicant in a truck to the Tiraspol
City Police headquarters. The applicant was left in a corridor. Mr Bergman
told Mr Shevtsov in an angry tone that he did not want to keep the applicants
in the territory of the Fourteenth Army any more and went away.
506. The applicant was detained in the basement of the
Tiraspol City Police headquarters for about half a year, and was then transferred
to Tiraspol Prison no. 2 until his conviction. During the investigation
he was with other detainees in a cell.
507. A week after his conviction, on 9 December 1993 the
applicant was transferred to Hlinaia Prison in a cell specially prepared
for death penalty convicts. He stayed nine years alone in a cell.
There he was subjected to very harsh treatment. He was beaten
many times. He was given bread and tea to eat, with cornmeal at lunch.
He was also frequently put in a punishment cell. The applicant weighed
95 kilos when arrested and only 57 kilos six months later. He was not allowed
to see his family on a regular basis or to receive parcels. Food parcels
sent to the applicant were sometimes destroyed. Every visit had to be approved.
Sometimes approvals were not granted, sometimes they were granted but when
his wife reached the gates of the prison she was not allowed to see him.
He was not allowed to write, so that he had to use other means to send
messages out of prison. As he wanted his mother to come and visit him,
he was told that he should write a special request to Mr Smirnov. The applicant
refused, because he did not recognise the “MRT”, and so he was not allowed
to see his mother, who died while he was in prison.
508. After the applicant had cast his vote in the Moldovan
Parliament for the formation of the Sturza Government, there was an immediate
effect on his visits: from April 1999 until January 2000 he was not allowed
to see his family. From then on he was punished constantly on all sorts
of pretexts – for example, his radio was taken away.
509. There was no heating in winter because there was no
technical possibility for this. The temperature went down to -10o Celsius.
The applicant did not have a shower for six months and had to wash in cold
water. There was no toilet, no decent conditions.
He had no access to information. He was alone. No one else was
present when he exercised in the evening. He ate on his own in the cell.
He was even forbidden to talk to the guards. He could only speak to the
secret service people and to Mr Golovachev. He had no access to daylight
or even to an electric lamp.
510. When the applicant asked for treatment from the prison
doctor he was told that there were no medicines. The only medicines were
brought by the applicant’s wife. The doctors who examined the applicant
came from Chisinau.
511. The applicant never complained to the Tiraspol authorities
because he refused to recognise them; he addressed his complaints only
to the legal authorities in Chisinau.
512. In July 1998, after the applicant had made several
attempts to escape, he was transferred to Tiraspol Prison no. 2, which
was better guarded.
The treatment in the Tiraspol Prison was sometimes better, sometimes
worse than in the Hlinaia Prison.
513. There was a toilet in the cell, and cold water. Not all
the prison guards were hostile to the applicant, but the people from the
security brigade under Mr Shevtsov ill-treated him. The Prison Governor
and the guards were relatively correct with him. Colonel Golovachev, the
Governor of the Prison, said, “I cannot stop the secret services ill-treating
you.”
514. In April 1999 the applicant lodged his application
with the European Court of Human Rights. Initially, when the Tiraspol authorities
got to hear of the application, he was treated much more harshly. There
was no beating as such, but he was denied visits by his wife, books addressed
to him in prison were seized, he was not allowed out of his cell for exercise,
there were frequent searches of his cell, and so on. This also occurred
after he had been visited in prison by the French Parliamentarian Josette
Durrieux, who had advised the applicant to submit an application in the
first place.
During the same period there was also an incident in which he was ill-treated
by Mr Gusarov and some people from the secret services. He asked why he
was subjected to such rigorous searches, but was dragged out of his cell
and hit with the butt of a gun. One of the secret service men stuck a gun
in his mouth, broke his teeth, and threatened him that there would be more
of the same if he pursued his application with the European Court. Mr Ivantoc
was subjected to the same treatment by Mr Gusarov.
515. The secret services came from time to time to ask
him to withdraw the application. Then, on the morning of 5 May 2001, his
cell door was opened. He was given five minutes to get his things together.
He was naked while two Transdniestrian television stations were shooting
the whole sequence of events in his cell, although he had asked them not
to do this. He was being taken to see Mr Smirnov, he was told, because
representatives from the West wanted to see him. There were five or six
civilians in the corridor, some of them members of the Supreme Soviet of
Transdniestria, others with guns.
He was put into a car with Mr Shevtsov. When they came to territory
controlled by Chisinau the applicant was handcuffed to two soldiers. He
was taken to the presidential palace in Chisinau, and then to the Ministry
of Security. Mr Shevtsov took out a paper declaring that the detainee Ilascu
had been transferred to the authorities of Moldova. He told the applicant
that the sentence of death was still valid and that he did not want to
see him again. The applicant was then taken to the office of the Minister
of Security of Moldova and questioned.
516. As regards the so-called pardon, Mr Balala came to
see the applicant two days before his release in order to speak of it.
However, the applicant refused the offer of a pardon because the Transdniestrians
wanted an acknowledgement of guilt on his part.
517. After his release the applicant spoke to the secret
services of Moldova and Romania about his colleagues who remained behind
in prison in Transdniestria. They told him that there had been pressure
from the Council of Europe and its Parliamentary Assembly on the Russian
President, Mr. Putin.
518. The applicant was under the impression that the Russians
were behind his release, as they had said that they would ask the Transdniestrians
to release him. The Romanian President Mr Iliescu even called Mr Putin.
The applicant claims that Shevtsov is a Russian citizen, a representative
of the Russian secret service.
519. As regards the attitude of the Moldovan authorities
concerning his release, the applicant claims that thirty-three persons
arrested by the Transdniestrians were exchanged for Cossacks arrested by
Moldova. In June 1992 he was about to be exchanged as a result of an agreement
with President Yeltsin. Negotiations were going on, about customs stamps,
economic relations and exchanges of prisoners, especially sick prisoners.
However, the applicant claims that in his case the Moldovan authorities
did not really do all that they could have done.
520. The authorities of the Russian Federation are responsible
for what happens in Transdniestria. The Russian Federation is the successor
of the Soviet Union. In 1992 there was no Soviet Union. The war was between
Russia and Moldova.
The Fourteenth Army participated in the aggression against Moldova,
it supplied arms to the Transdniestrian forces – machine guns, tanks, armoured
vehicles, guided rocket systems. There is only one armed headquarters force
in Transdniestria, and that is the headquarters of the Fourteenth Army.
Shots were fired from there towards the battlefields. General Lebed fought
against Moldova, but he saved the applicant’s life, as he refused to deliver
the applicant to the Transdniestrians who came to get him, after losing
lives on the battlefield.
The Supreme Soviet of Transdniestria had taken the whole Fourteenth
Army under its authority. General Lebed was even elected as a Member of
the Transdniestrian Parliament. Russian staff from the Fourteenth Army
were leading the military operations and members of the Transdniestrian
armed forces were involved only symbolically. When General Iakovlev was
arrested before the conflict and taken to Chisinau, it was on suspicion
of having armed units in Transdniestria with weapons from the Fourteenth
Army. The applicant was told by Mr. Lesco, who worked in a factory, that
arms had been brought to the factory by the Fourteenth Army to arm the
workers there.
All along the Russian Federation has been maintaining Transdniestria.
It supports the Transdniestrian regime militarily, politically and economically.
It supplies natural gas free of charge to Transdniestria, it has given
Transdniestria 70 to 80 million US dollars of credit, it has kept its markets
open for Transdniestria. Mr Smirnov has received military medals from Russia.
The Russian Federation protects this illegal regime, even in the proceedings
in Strasbourg. The applicant considers that this is not an ethnic conflict,
but a political conflict. The territory of Transdniestria is under the
control of the Russian Federation.
521. As regards the Moldovan authorities, it is true that
the Transdniestrian authorities were hostile to them. According to the
applicant, the Transdniestrians are Fascists, imperialists. The applicant
was prepared to withdraw his application to the European Court of Human
Rights against Moldova on condition that the Moldovan authorities produced
to him documents describing the participation of the Russian authorities
in the events of 1991 to 1992. The applicant knows that they have such
material – documents, video tapes of interviews of Russian officers captured,
and so on. The applicant claims that Mr Morei, the Minister of Justice,
told him that the Moldovan Government could not agree to this because the
Russian Federation was supplying natural gas to Moldova.
522. The applicant complains that one of the witnesses
that he wished to call, Mrs. Olga Capat?na, was beaten up and had to be
hospitalised.
523. The Moldovan authorities did allow the applicant to
act as a Member of Parliament although he had been sentenced and was in
prison. However, the secret services of the Government that came to power
after 1992 abandoned the applicant and his colleagues. It did nothing to
secure their release. When the applicant was released Mr Valeriu Pasat
said, jokingly, “Some politicians are now trying to emigrate.” President
Snegur said that the applicant was too much in favour of integration with
Romania. The Moldovan Parliament did adopt several resolutions in the applicants’
favour, including one calling for Mr. Ilascu to be released. But the Executive
did nothing to act on this. The Parliament did ask for international bodies
to intervene, but it could not oblige the Executive to act. Moldova has
not exercised any control over the territory of Transdniestria from 1992
to the present day.
2. Tatiana LESCO
524. In June 1992 she was living in Tiraspol. She was not
at home when her husband was arrested. She heard on the radio on 3 June
that a terrorist group headed by Ilie Ilascu had been arrested. On 4 June
she went to the militia where she was told that the name of Lesco did not
appear in their ledger. For three days she had no news. On 6 June Starojouk,
a public prosecutor, said to her, “I cannot tell you anything.” She went
to see another prosecutor, but she was not allowed into his office; she
was physically thrown out. She went back to the militia office where Starojouk
confirmed that her husband had been arrested but gave no reason. On 8 June
Starojouk received the witness in his office. He said that her husband
had been arrested for committing terrorist offences. Although the witness
had been married for twelve years, there had never been a word about terrorism
during all those twelve years. On 9 June she was not allowed to see her
husband. On 10 June she was taken to the basement; there was a terrible
stench. She did not recognise him; his hair was unkempt; he resembled a
skeleton.
525. As to the arrest, the neighbours told her that it
had occurred at 3.30 a.m. in the morning. A search of the apartment was
carried out on 3 June. Her husband told her that people in uniform had
come to arrest him. Four people. He could not see who did it. The janitor
of the apartment building had called him. He had been told to get dressed
and leave with them. He was arrested by a police officer, a Mr Gusan. He
was taken in a Volga car and jeep with Mr Gusan and six other people. He
was interrogated by Mr Gorbov and Mr Antiufeev, who is now a member of
the Transdniestrian Government. He was held at the militia building where
arrested civilians are taken. For six days there was nothing in the register
about him.
When the witness saw her husband in the militia building, Starojouk
was also there, in a separate office. The witness did not know if Ilascu
was there as well. She did not know Ilascu personally. When she saw her
husband for the first time he had done nothing but eat, wolfing down half
a chicken, and he had drunk a lot of water. He said that they had not given
him anything to eat or drink.
526. The witness had a second meeting with him after a
month or so. In the meantime she had not been allowed to see him or to
give him any food. She had taken his dirty clothes away with her; they
were full of vermin. His shirt was stained in the area of the kidneys.
He had obviously been beaten up. The next meeting, after a month or so,
was in the same building, in the basement again. And then there was another
meeting after a further two months in Starojouk’s office.
527. The witness’s husband told her that he had spent about
a month at the headquarters of the Russian Fourteenth Army, at the Commandatura.
He said it had been horrible. Three soldiers had kicked him in the chest
and groin; he had passed blood in his urine; one of the soldiers had made
a lewd suggestion. He had been taken to the lavatory once a day, allowed
only 45 seconds to relieve himself, and then a dog was sent in and he was
pushed back to his cell. He was not allowed to wash there was no water
to wash with. There was no food or water. He did not know the names of
the people who had ill-treated him. They had not introduced themselves.
They were wearing the military uniform of the Russian Special Troops. They
were heavily muscled men from the Fourteenth Army.
The witness’s husband told her that when he was in the Commandatura
of the Fourteenth Army it was the militia men who had the keys to the cell.
The attack on him had occurred when the guards got drunk with three soldiers.
The guards gave the soldiers the keys for some reason. It was then that
the soldiers broke into his cell, assaulted him and tried to rape him.
528. At the Commandatura he saw Ilie Ilascu being subjected
to what turned out to be a mock execution. He saw Ilie Ilascu being led
out, blindfolded; he heard the guns firing and then saw traces of bullets
on the wall. But he then learnt that Ilie Ilascu was alive. The witness’s
husband mentioned to her two names: Gorbov and Antiufeev. He said that,
after the Commandatura, they came to interrogate him every night back at
the militia centre. Colonel Bergman was the commandant at the Commandatura.
They saw one another at the Commandatura.
529. After his conviction in 1993 the witness’s husband
was taken to Tiraspol Prison No. 2. That was the only prison where he had
been detained. The first time that the witness was able to visit her husband
there was after three months. She was allowed to leave food for him. After
the trial she had regular meetings with him once a month, as laid down
in the Criminal Code, through a glass screen. Letters were opened, but
they did not correspond too often. Twice a year a long meeting was granted.
Parcels were not always allowed. He was kept in an individual cell. There
was no beating up, but he was subjected to moral pressure. The witness
herself was called a Romanian prostitute. The guards would ask her, “Why
did you sell out to Romania when you are a Russian?” There was ill-treatment
of her husband in the militia building, but not in prison. The food in
prison often had worms in it. She was sometimes allowed to bring in large
food parcels.
Her husband has never said anything much about medical treatment in
prison. He had a pancreatic crisis when the witness was there once. He
was foaming at the mouth. She had to wait all day for any kind of treatment
to arrive. In the end a doctor came and said that he needed an operation,
otherwise he would die. He was made to walk with handcuffs and manacles
on, despite his condition. The doctor gave the witness a list of medicines
to get. The operation had been a success. He was manacled to the bed in
hospital, despite being on an intravenous drip. The witness was allowed
to visit him in hospital once a day but there were four armed guards present
all the time. His stay in hospital had lasted two weeks.
530. The witness claims that her husband did not receive
any orders or instructions from the Moldovan authorities before he was
arrested in 1992. She was with him all the time. He was a member of the
Popular Front. After her husband’s arrest they had to leave their residence.
She went to plead with the factory-owner, but he said, “You must leave
the flat, you are a terrorist’s wife.” After ten days a woman with a child
came to occupy the flat. The witness was chased away and went to Chisinau.
Six months after the event she was given a hotel room by the Popular Front.
Whenever she went to Tiraspol to visit her husband she stayed with a friend.
Then eventually she was given a room as a refugee.
3. Eudochia IVANTOC
531. The witness was living in Tiraspol on 2 June 1992.
She had not heard anything at all about a so-called Ilascu group before
her husband was detained. They lived in Tiraspol and felt at home there.
532. Her husband was arrested there when he was on his
own. He told her that many armed people had entered the apartment, smashed
their belongings, and beaten him unconscious. The persons who burst in
were wearing black uniforms. Her husband was taken to the basement of the
militia building in Tiraspol. The witness met him two days after his arrest.
He was bruised on the forehead, the nail on one of his fingers was missing,
and he was very dirty. They were forbidden to speak to one another in Romanian,
but had to use Russian.
The witness met him in the office of the investigating offices,
in the presence of three or four other people. It was a short meeting and
it had been impossible for them to communicate properly. It was many weeks
before the witness could send him a food parcel.
533. From the militia building the prisoners were transferred
to the Fourteenth Army Commandatura and then back to the militia building.
Before their trial they were in either one or the other of these places.
The witness had one short meeting with her husband during the period when
he was being held at the Commandatura. She did not know that he was being
held there. When she was in the militia building she saw him being brought
into the building from a Volga car and it was then that Andrei told her,
“We’re being held at the Commandatura.” At that particular time they were
refused any meetings. Before meetings he was prepared and cleaned up, so
that the family would not see all the damage. “Boxers” were used in the
basement to beat the detainees up. They had to speak in the Russian language
and always in their presence.
534. The conditions in the Commandatura were terrible.
It was painful for the applicant to talk about it. He was kept alone in
a cell; at midnight a bed was brought down from the wall for them to sleep
on, but they were kept up during the whole day and so were not able to
sleep properly. They were taken out to the toilet once a day, for a very
short period; if they had not managed to relieve themselves in this very
short period, dogs were let loose on them. They were not given much food.
Ilascu and the others were detained there at the same time but in separate
cells; the witness’s husband was blindfolded when he was let out of the
cell. The applicant told the witness that he had been kept in the Commandatura
for two months, from July until August 1992. He was interrogated day and
night; sometimes he was not allowed to sleep because the interrogations
went on all night. He did not specifically tell the witness who interrogated
him. The guards were from the Fourteenth Army. Gorbov, Starojouk and one
other took part in the interrogation. He also mentioned the name of Bergman,
but the witness could not remember exactly what he said in this connection.
535. When he was held in police custody in Tiraspol the
witness’s husband was threatened with a sentence of death. The order was
read out to him; he was taken out to be shot, and told, “Why do you want
to bother about visits by your family if you are to be shot tomorrow?”
There were times when he could not recognise the witness. Before his trial
he was treated with psychotropic substances, so that his nervous system
broke down. As a result, even today he suffers with constant headaches.
His chronic diseases have got worse. He was in hospital for ten days before
his trial. While detained in the militia building he was sent to Odessa
for a psychiatric examination. He had not had any psychiatric examination
until then. The findings of the Odessa examination had been destroyed.
She knows from hearsay that he was kept naked on a concrete surface, but
she cannot personally confirm that he tried to hang himself.
536. Following the trial in 1993, the witness next saw
her husband after a month as soon as she received the permission to meet
him. Whenever events got worse, that affected visits. She was not able
to visit her husband freely; she had to write to Mr Shevtsov to get approval.
For a long time she was not allowed to give him newspapers in Romanian,
but only in Russian. She could not correspond with him. He was kept in
solitary confinement, in the toughest wing of the prison. It was very damp;
there was a leaking roof and no daylight. There was permanent psychological
pressure on him. In 1999 he was the victim of a physical attack when masked
persons entered his cell, hit him with sticks and beat him up. Everything
in his cell was broken and his personal effects were taken away. This is
the time when he went on hunger strike. The 1999 incident occurred when
the applicant’s husband lodged his application with the European Court
of Human Rights, or even before – when the Sturza Government was elected.
He was not allowed to stay quietly in his cell, as there was a period of
time when everyday someone tried to exert psychological pressure on him.
537. The witness complained to various Moldovan authorities.
She did not approach the Ministry of Justice directly. Together with the
other wives, she approached the President of the Republic and the Ministry
dealing with the Transdniestria issues. In reply, they were assured that
negotiations were under way and things would be back to normal soon. This
was so even when they applied to the Prosecutor General. But nothing ever
came of these representations. The applicants’ wives also applied to the
Ombudsman, but they were told that he could not go deeper into the case
because he did not have sufficient power. The other side was not subject
to his authority, and everything depended on higher authorities – in other
words, the President’s Office and the State authorities.
The OSCE mission visited her husband in prison after these representations
in 1999.
538. There was no proper access to medical assistance in
the prison. The witness insisted that a doctor from Chisinau go to see
him in the prison in Tiraspol. He had a liver condition, high blood pressure
and a kidney condition. The witness brought all the medicine from home,
as no medical care was dispensed in prison.
539. On 15 February 2003 the witness was refused permission
to see her husband, but she managed to see him one week later. He told
her that again people had burst into his cell and broken all his personal
effects.
540. Although Andrei Ivantoc needs a special diet, he does
not receive what he needs. He cooks food for himself, from the parcels
delivered to him by his family. The prison authorities in Tiraspol refused
him access to a psychiatrist. Recently, however, a group of doctors from
Chisinau had visited him, but they were then barred from presenting their
written report to him. The prison doctor was present during this examination,
together with three or four persons from the security service.
541. The witness is not aware of her husband ever having
received any instructions from the Republic of Moldova. There were no persons
from the Republic of Moldova present during his interrogation, just persons
from Tiraspol. Her feeling is that the Moldovan authorities could have
been more insistent, and in particular could have involved international
organisations.
4. Raisa PETROV-POPA
542. In June 1992 the witness was living in Moldova in
her parents’ village. Her brother was living in Tiraspol. He had been there
for six years with his wife and family (his son). The witness was not in
Tiraspol when he was arrested; she heard of his arrest one week after the
event when his wife telephoned her. The applicant’s wife told the witness
that people had come at night and arrested him. She further told her that
he had been taken to the premises of the Fourteenth Army. The witness saw
him for the first time during his trial. She had no opportunity to talk
to him, but only spoke to his wife, who told her that he had been ill-treated
in custody. After the trial the witness occasionally visited him in prison.
She very rarely wrote to him or received letters from him. When the family
did send him letters, he frequently said that he had not received anything.
543. The witness’s brother was detained in Tiraspol Prison
until last year. He did not speak about his treatment in prison. There
were always persons present who prevented him during the visits from speaking
about matters other than family matters. He sometimes said that he had
been taken out of his cell at night or verbally abused. The applicant never
spoke about any medical treatment.
544. The witness had not approached the Moldovan authorities
on behalf of her brother in order to seek his release; his wife had, but
the witness did not know what authorities she had approached. Nor did she
know whether the Moldovan authorities had tried to do anything following
her brother’s arrest and conviction.
545. She brought the application on behalf of her brother.
Before the trial she did not know Ilascu, Lesco or Ivantoc.
5. Stefan UR?TU
546. The witness was formerly a permanent resident of Tiraspol.
He now lives in Chisinau. He is the Chairman of the Helsinki Human Rights
Committee and a Professor at the Tiraspol State University with its headquarters
in Chisinau.
547. By June 1992 he had been living in Tiraspol for nineteen
years. He knew Ilascu and Ivantoc but not Lesco or Petrov-Popa. He had
been a member of the Popular Front. But in 1992 Ilascu had published a
statement saying that the witness was excluded from the Popular Front for
expressing pro-Snegur views.
548. He was arrested on 2 June 1992, twelve hours after
Ilascu. He did not know who the people arresting him were. He later came
to understand that the public prosecutor Luchik and Colonel Bergman, the
Fourteenth Army commander, were behind it. Luchik had been the Moldovan
Prosecutor of the city of Tiraspol. Then the separatists had converted
him into the Prosecutor of the “Transdniestrian Moldovan Republic”.
549. The people arresting the witness were not in uniform.
When he was arrested, there were some vehicles from the Russian Army surrounding
his house. He was taken to the militia building in Tiraspol. He did not
see Bergman himself, but he saw the army vehicles and was told by those
arresting him that Bergman was involved.
550. The witness was held in the militia building from
2 June until 21 August 1992. He saw Ilascu there through a crack in the
door, but for most of the time Ilascu was kept at the Fourteenth Army building
for security reasons. Opposite the witness’s cell were Lesco, Ilascu, Ivantoc
and the others, except for the time when the applicants were taken to the
Fourteenth Army. The main six detainees were kept there until September
1992. Over 30 people had been arrested in the operation. At one point the
witness heard the scream of a crazy person. It was Ivantoc, because they
had told him that he was to be shot that day.
551. The witness talked to Lesco, who said that the conditions
in the militia building were quite good compared to those at the Fourteenth
Army. The other prisoner who was sharing the witness’s cell also told him
that his colleagues had been taken to the Fourteenth Army because the security
was much stricter there. All this was done when the fighting was going
on in Bender.
552. He was told by those who were detained at the Commandatura
that their beds were raised against the wall at 5 or 6 a.m., that they
were given no food, that there was no light in their cell, and so on. Lesco
also told him that they were subjected to mock executions.
553. The witness received a letter from a potential witness
at the trial saying that he had been warned that if he kept to his testimony
that Ilascu had been beaten, he would lose his job. He is now in detention.
A person who gave evidence at the 1993 trial in Tiraspol was summoned by
the Tiraspol authorities and asked if he would give the same evidence now.
554. During his detention in the militia building, the
witness was interrogated by Shevtsov, or Antiufeev as he now calls himself.
The witness was Chairman of the Committee for Human Rights created in 1990
and had access to information concerning the situation in Transdniestria.
Many people came to see them for information. The constitutional Moldovan
authorities avoided responsibility for what the separatists were doing.
Shevtsov, whom the witness did not know at the time, was a better-trained
professional than any Moldovan would have been. The witness told him that
he gave the impression of being from Russia – because of his Moscow accent
and because of his being so professional at his job. When he saw Shevtsov
later on the television, he realised who he was. He was the person who
had organised the attack on the Riga television tower in 1991. He and the
eleven colleagues who accompanied him to Tiraspol had created a network
in the Baltic Republics, but they were then ordered by Moscow to Tiraspol.
He used to be called by the name of Antiufeev, but in his fourth passport
he had the name Shevtsov. He does not conceal now that Antiufeev and Shevtsov
are one and the same person.
555. The witness was interrogated only once in the presence
of a lawyer. Another time he was interrogated at night by Mr Gorbov and
another. They ill-treated him and tried to get him to sign a document,
but he refused.
556. The witness was not tried. He was released after 82
days of detention. He does not know why he was released, although he was
subject to the same charges of terrorism. During the applicants’ trial
the witness sent a telegram to the President of the so-called Supreme Court
of Transdniestria, Mrs Ivanova, asking to be heard by the court. He was
refused. The answer given was that he was a criminal who deserved to be
in the cage with Ilascu, and he could not be heard as a witness. Prosecutor
Luki?, whom the witness contacted, told him he could not protect him a
second time.
557. He had been released on signing an undertaking that
he would not leave Tiraspol. Starojouk drove him to his home in Tiraspol.
No personal belongings had been taken from his apartment. The witness promised
not to make statements to the press. He was contacted by the Memorial group
in Odessa, who invited him to Odessa. When he asked for permission to go
to Ukraine, he was first refused, but in the end he obtained that permission.
However, the witness fled to Chisinau instead of going to Ukraine.
558. The witness stated that Ivantoc’s house had been surrounded
by military vehicles and he had concluded that the Fourteenth Army and
Colonel Bergman took part in the arrest.
559. General Iakovlev had previously been arrested by the
Moldovan authorities for providing arms to the separatists. The witness
had seen the register, detailing how much weaponry had been given and to
whom. It was given to people in their homes so that they could resist the
constitutional forces of Moldova. As regards the arrest of General Iakovlev,
the witness had heard that Mr. Ilascu was there to confirm to the arresting
officers that they had the right person. Iakovlev was in plain clothes
and about to flee to Odessa because he suspected that he was about to be
arrested.
560. General Iakovlev was subsequently exchanged for 28
Moldovans. On another occasion, 23 Moldovan policemen were exchanged for
23 paramilitary soldiers. Groups of 25 to 35 people were regularly sent
from Transdniestria to Moscow to be trained in military and security matters,
in order to create battalions. The witness knew about this from the soldiers.
561. After his release, the witness had visited Tiraspol
several times. Once he was part of a delegation of the Helsinki Committee.
Another time he went there without warning the Transdniestrian guards.
562. The witness considers that Moldova did not and does
not do all that it can to ensure compliance with Moldovan legislation for
the 600,000 hostages that are being held in Transdniestria by the separatist
regime.
563. Concerning the Russian involvement in the events,
the witness stated the following. High-placed Russian personalities had
visited Tiraspol as early as 1989 when the first law on languages in Moldova
was adopted. Russian officials had also come to Chisinau. The Moscow Institute
of International Relations had developed the idea of Transdniestria in
case Moldova did not accept some degree of cultural autonomy. The creation
of a tribunal to prosecute Moldova for violating humanitarian law had been
mooted. The KGB forces were at this time out of control in Moscow; they
were seeking to keep the Soviet empire in existence. It was Nikolai Midveev,
member of a Russian Federation Parliamentary Committee, who requested the
release of Smirnov when he was being held in detention. He offered certain
guarantees for Smirnov’s release, for instance, Smirnov would not continue
to destroy the Moldovan State structures, he would not contravene the legislation
of Moldova, and the Russian Federation would ratify the Moldovan-Russian
Agreement. However, this agreement was not ratified until 2001, when the
Communist Party regime came to power in Moldova. Behind these manoeuvres
were the FSB, the Cossacks and other structures created by Russia whenever
it was a question of a territory where they wanted to keep control.
564. On the day of the witness’s arrest, when he was taken
to the security service, he saw an important person coming out of the building.
It was Makashov. He had visited the separatist republic and said that with
such weaponry they would not be able to fight the Romanian fascists, that
he was going to send them better arms and that Russia would help. Material
was sent later from Russia, around one hundred units of Radio-Guided Anti-Tank
Missiles, but only fifteen of them reached Tiraspol. Then there were the
declarations of Mr Dakov, the Tiraspol Minister of Light Industries. He
had admitted that the Fourteenth Army used to wear the uniform of the separatists
or civilian clothing when fighting on the side of the separatists. Soldiers
of the Fourteenth Army had been killed in the fighting. For instance, in
about April 1992 an officer and four soldiers of the Fourteenth Army had
been killed in the war. Their bodies had been brought from the front to
be sent to the Russian Federation, and the witness and his students had
seen them, as they had participated in the farewell ceremony.
565. The Cossack troops who had taken part in the fighting
were mobilised by the Russian Federation when it realised that the territorial
integrity of the Soviet Union could not be maintained. The Cossacks had
arrived in 1990. Russia said that this was a private initiative, not linked
to the authorities. They lived in hotels. In 1992, on 1 or 2 March when
the war started, their objective had been to prevent Moldova joining the
United Nations. In Bender and Dubasari, where there remained the last constitutional
police station, the last place in Transdniestria where Moldova was maintaining
a law-enforcement presence, there was an assault organised by Rateyev,
one of the Cossacks. He was a member of the Alpha Group, which was one
of the leading Russian security groups.
566. In 1993 the separatist regime set up a parliament.
General Lebed was elected to the Supreme Soviet. General Lebed himself
declared that he was the one who guaranteed the independence of the Transdniestrian
Republic, and that he had caused a few shots to be fired on a number of
occasions from “Grad” launching pads in the direction of Moldovan territory.
After that, Lebed said, President Snegur had agreed to sit at the negotiation
table with Smirnov.
567. During the war, the Transdniestrian side had tanks
and armoured vehicles bearing the emblem of the Russian army – the witness
had seen that himself – in addition to the Cossack troops. The witness
went to Bender once. When he crossed the bridge on foot he saw many tanks
carrying the Russian three-coloured flag. On other tanks the separatist
flag was flying. He asked why Russian troops and separatist troops were
there and he was told that both had taken part in the shooting. At a meeting
held at the Ministry of Defence in Chisinau, where the negotiations took
place, the witness made a statement in front of the ministers of foreign
affairs present, including Mr Kozyrev and Mr Netkachiov, who was the Commander
of the Fourteenth Army at that time. The witness told them he would lodge
a protest because the Fourteenth Army was directly involved in the war.
The participants in the negotiations replied that they would leave for
Bender and try to gain evidence of that themselves.
568. After his release the witness did all that he could
to get the remaining six freed. They represented a symbol for the Transdniestrian
regime, to discourage others from expressing political views. He was told
by Prosecutor Irtenev that Moscow was interested in securing the release
of people held by the Moldovan authorities. Prosecutor Irtenev told the
witness that Moldova had been cheated, in that other, less important people
had been released, but not the witness’s six colleagues. Moldova released
everyone, whether Russian or from Tiraspol, who had taken part in the fighting,
whereas the Tiraspol regime had not released everyone, had not responded
in kind.
569. The witness did not know why he was arrested or why
he was released. There was a letter from the Moldovan Ministry of Education
asking for his release, the Ministry undertaking to ensure that the witness
would be present for the purposes of the investigation. The witness possessed
much information about the separatists, and for that reason he was not
a convenient witness for the trial. Alex Kokotkin, a journalist for a Russian
newspaper, had tried, before his arrest, to convince him of the benefits
of collaborating with the separatist regime. The witness had seen him later
in the office of the investigators, acting as if he was a boss. Kokotkin
told him that additional Russian troops had been brought in to secure Transdniestrian
independence; they were called peace-keeping troops. This journalist might
have played a significant role in obtaining the witness’s release.
570. The witness also stated that he could name the persons
who had gone to Moscow for military training for membership of a Dniester
battalion. He knew who did the recruitment and where they went. He also
knew the Russian secret services who installed special telephone devices
for tapping official Moldovan telephone calls.
6. Constantin T?B?RNA
571. The witness is the Director of the Surgical Clinic
at the State University, Chisinau. He has been in Transdniestria lecturing
and teaching; he also had professional relations there.
572. He was requested by the Ministry of Health of Moldova
to examine the Ilascu group in prison in Tiraspol. The Moldovan authorities
in Chisinau even provided him with a car to go to the prison in Transdniestria.
He would not have gone to examine these prisoners if he had not been invited
to do so by the Moldovan Ministry of Health. There he carried out the examination,
together with doctors from Tiraspol, and then he discussed with them the
diagnosis and the treatment.
573. When he examined the applicants, Ilascu was in Hlinaia,
the others were in Tiraspol Prison. The prisoners made no complaints about
the Russian Federation. They only discussed medical matters in fact. The
witness did not see any signs of beatings, bruises or ill-treatment when
he examined the prisoners. The level of medical assistance in prisons was
very simple; there was no equipment, but Chisinau prisons looked very much
like the prisons in Transdniestria.
574. He saw Mr Ilascu himself only once. He looked like
an ordinary prisoner, but he did have a disorder of the digestive tract.
However, his condition did not necessitate any intervention by a surgeon;
no surgery was necessary, and so he was treated by a gastro-enterologist.
575. The witness examined Mr Lesco when he was in hospital
recovering from pancreatitis, after he had undergone a surgical operation.
He was invited to examine Mr Lesco because he was recognised as an expert
on this condition. Mr Lesco was introduced to him by the doctor who had
operated on him earlier. He had seen the applicant in hospital, when he
was suffering from acute pancreatitis. This is a severe condition, with
a mortality of 20 to 30%. He also saw him later, when he was suffering
from chronic pancreatitis, which often follows acute pancreatitis. He could
have acquired pancreatitis during his childhood, although acute pancreatitis
could also be the result of stressful conditions. The witness and a team
of doctors, led by Dr. S. Lesanu, examined the applicant and recommended
further treatment.
576. The witness saw Mr Ivantoc in prison. He detected
changes in his liver by means of an ultrasound examination and liquid in
the abdominal cavity, which is a sign of high blood pressure.
577. The witness made his notes on the applicants’ cases
on sheets of paper provided by the prison doctors. They kept these notes
for their archives. The witness then made his own report for his own personal
purposes. He last went there over a year ago.
578. There is freedom of movement of doctors from Moldova
to Transdniestria and vice-versa.
7. Nicolae LESANU
579. The witness is the chief doctor on curative issues
at the State Hospital of the Republic of Moldova. Until seven years ago
he was working as adviser to the President of Moldova and was his personal
physician. At his request he was sent to Tiraspol to see the three applicants
detained there and to Hlinaia Prison to see Mr. Ilascu. The wife of Mr
Ilascu had made representations to the President who, as a result, had
done what he could to help. As part of his help he sent the witness to
examine the applicants in prison in Transdniestria. As adviser to the President,
the witness could talk to the local authorities in Transdniestria.
580. The witness went to Transdniestria six times in all.
The President and the relatives of the applicants were worried about their
medical state in prison. The witness had to keep the President informed
of their medical condition. He usually took other doctors with him, for
example, Professor T?b?rna and a gastro-enterologist.
581. The applicants did not complain about ill-treatment.
582. The medical notes made on the applicants were left
behind with the prison authorities there. The team of doctors insisted
that the prison medical service should follow their recommendations, which
concerned the applicants’ medical treatment, medication and diet.
583. Mr. Ilascu said that he did not trust the prison authorities
or the prison medical service, as he was afraid of having drugs administered
to him by the prison authorities. He accepted medicine supplied by the
family or by the doctors coming from Chisinau.
584. The examinations that the witness’s team had carried
out in Transdniestria were joint examinations with the doctors there. The
applicants detained in Tiraspol Prison were subject to a freer regime than
in Hlinaia Prison. In Tiraspol Prison there was a medical unit and only
doctors were present during medical examinations.
585. At Hlinaia Prison the regime was stricter. There was
always someone from the prison service standing by, as well as the doctors.
586. The witness and his team found no evidence either
of physical ill-treatment or of the administration of psychotropic drugs.
587. The witness visited the applicants for the last time
in 1997 or thereabouts. He refused to go after that, despite a request
from the Ministry of Justice, because he no longer had the powers that
he used to have when he was the President’s adviser.
8. Andrei IVANTOC
588. On the morning of 2 June 1992, nine or ten members
of the special forces came in cars and arrested him. They were military
people in plain clothes, wearing masks. In the group that arrested him
he saw a lieutenant from the Russian special forces. They beat him up and
took him to a basement at the pre-trial detention centre, which was a militia
building. The applicant had never been there before – that is to say, the
building where the basement was. He cannot say how long he spent there.
He was blindfolded; there was no light. It may have been one hour, one
day, but no more. He did not see Lesco or Ilascu in the militia building.
He saw them later at the Commandatura.
589. He was then taken to the Commandatura of the Fourteenth
Army. There he was interrogated by military people. Upstairs there were
special elite troops and Alpha troops. Colonel Bergman was the commander
of the Fourteenth Army. The applicant saw him personally, but Colonel Bergman
did not interrogate him.
590. The conditions at the Commandatura were inhuman. Detainees
were beaten up day and night by the marines and by Special Forces, who
used batons and boots. They would throw green gas capsules into the cells.
The applicants were detained in different cells. There were also other
people detained there, including Mr Godiac. The conditions of detention
there were very bad. They were taken to the toilet once every 24 hours
and chased out by a dog if they did not finish in the time allotted to
them. At that point the applicant wanted to hang himself.
Then he was administered drugs. He was delirious; he imagined
things. His psychiatric problems resulted from his beatings.
The guards at the Commandatura, like everything there, were under
the control of the Fourteenth Army. The special forces and marines all
had Russian insignia on their uniforms. It was the Russian special forces
and marines who beat them up saying that they were Romanian peasants. They
had Russian emblems on their uniforms. The applicant thought that they
were Russian marines because they had the berets and shirts of marines
with Russian emblems on them.
The worst ill-treatment he suffered was at the Commandatura.
It was total savagery.
591. From the Commandatura of the Fourteenth Army he was
taken to a psychiatric hospital in Tiraspol, where he spent one month.
They then took him from the hospital back to the Commandatura, but as Colonel
Bergman told the guardsmen that he did not want him there, he was taken
back to the pre-trial detention centre. The applicant does not know how
long Ilascu and Lesco were held at the Commandatura after he left. He next
saw them at the trial in the autumn.
592. After September 1992, when he and the others were
transferred to the basement of the pre-trial centre, they were also beaten
up. They were taken out day and night. This was done in a special room,
an investigation room. The applicant was beaten up until he lost consciousness,
he was drugged, and his head was banged against the wall, or squeezed between
the door and the wall. That was done by people from the Transdniestrian
side.
593. After the trial they were only occasionally beaten
up. The applicants complained to the OSCE. Mr Antiufeev was the head of
all that. At one point a Ministerial Commission came to investigate. The
applicants were not examined by doctors. In any event, the prison authorities
isolated them until the bruises were gone. The OSCE Commission came one
month later, after the beatings, but there were not many traces left by
then.
594. The worst period of ill-treatment was in 1992, when
they came to the applicant’s cell and to Ilascu’s. It was Antiufeev and
Gusarov who were the prime movers.
595. Currently the applicant is in solitary confinement:
He sees no daylight, and only exercises for two hours a day.
596. The doctors in the prison service were little better
than veterinary surgeons. The prison doctor in the applicant’s prison was
in fact a dentist by profession. Professor T?b?rna had visited the applicant.
He had also been visited by other doctors from Tiraspol, including the
surgeon who performed an operation on him. These doctors came only because
he was ill; they did not come when he was beaten up. The applicant went
on hunger strike on one occasion, but couldn’t remember if he was examined
by doctors then. Two of these medical examinations had taken place in special
cells set aside for that purpose.
597. In January 2003 he was in a room where prisoners are allowed
long-term meetings. He had never been examined by a doctor in his own cell.
During the examinations there was always someone from the prison administration
there to check and control.
598. Only relatives are allowed for family visits. Sometimes
parcels are allowed, but on occasions there are problems with parcels.
The applicants are not permitted to write or receive letters in Romanian
or to receive Romanian newspapers. Two weeks before the hearings in February
2003, he had been seen by the Red Cross and, before that, by doctors from
the European Committee for the Prevention of Torture.
599. The most recent visit he had had was two weeks before
the hearings in February 2003, when he was visited by a lady judge in connection
with the Torture Committee.
600. He has no right to correspond with persons outside
the prison, whether lawyers or not.
601. In May 1999, while he was in Tiraspol Prison no. 2,
after he lodged his application with the European Court of Human Rights,
he was subjected to ill-treatment there as well. Military forces came into
his cell and beat him up. These were military people under the command
of Gusarov and Captain Matrovski and people under Antiufeev/Shevtsov. He
was told that if he did not withdraw his application he would be eliminated.
Afterwards he went on hunger strike and wrote a complaint; and then a commission
of investigation came.
602. The only medical visits he had had were from doctors
coming from Chisinau. The prison doctor Lieutenant-Colonel Samsonov was
a dentist. The applicant claims that he has not received any services from
the prison doctors.
603. His cell and his belongings in it have been damaged.
The first time this happened was on 16 November 2002, and the last time
was on 22 February 2003 or thereabouts.
604. The applicant considers that everything that has been
done to him, and that is now being done to him, has been done at Russian
instigation.
605. Lieutenant-Colonel Gorbov had been present at the
arrest of Ilascu. Moldova did not and does not control the territory of
Transdniestria, but the Moldovan authorities could have done more at the
time to help them. They did nothing. The militia of Dubasari were handed
over to the Cossacks and beaten up. Russia had played games with Moldova.
If this had not happened, Transdniestria would not have existed. So Moldova
was responsible. The Chairman of the Russian State Duma, Mr. Selezniov,
had come to the Moldovan Parliament and said that, if it had not been for
Russia, Moldova would have been part of Romania.
606. After May 1998 the applicant did not see any Russian
officials.
9. Alexandru LESCO
607. At the time of the events, in 1992, the applicant
had been living in Tiraspol since 1973. On 2 June 1992 he was awakened
at 2 a.m. when four armed persons entered his house and arrested him. Among
them was a person called Gusan. He was in plain clothes and not armed.
He showed the applicant his documents. The others were wearing khaki; they
were military personnel and armed. He was taken by car to the detention
centre. He was not beaten then; that came later. He had a three-hour interrogation
with Shevtsov, also known as Antiufeev, with Gorbov and with a third person
whom the applicant did not know. He was then taken to the basement, where
he stayed for six days. On the second day he was put in a solitary cell.
The interrogations started in earnest. They went on from 2 June until 1
or 2 July. He did not see Ivantoc or Ilascu during that month. During this
period he was interrogated and ill-treated.
608. On 1 or 2 July he was taken to the Commandatura building.
He was taken there in a car with the Russian emblem on the side and the
Russian three-coloured flag on it. The applicant was taken there twice
on the same day. The first time it was Delta people, Dniester people. The
second time it was different people, Fourteenth Army personnel. They entered
the base from a different entrance. He stayed there until 7 or 8 August
in solitary confinement. The cells were on the ground floor. The applicant
could not see the others – that is, Ilascu, Ivantoc, Godiac. He didn’t
see Mr Petrov-Popa. And the guards there ill-treated him a few times. He
was not interrogated in the Commandatura, just beaten up three times. He
knew that Colonel Bergman was the commandant, but he did not have any meetings
with him or see him. Starojouk, who was leading the investigation in his
case, was at the Commandatura twice. He showed the applicant newspaper
reports that Plugaru [the Minister of National Security of Moldova during
the 1991-1992 events] had been dismissed, and that a peace agreement with
Russia had been signed.
609. The conditions were very harsh in the Commandatura.
The food was good because they ate from the soldiers’ rations. But sometimes
there was no access to a toilet for two or three days. They would then
be taken out into the corridor and to the toilet by a guard who had an
Alsatian dog called Chan. They were only given 45 seconds, which was not
enough time, and then the dog was let loose on them. This is why the applicants
refused food, in order to get more time to go to the toilet. The applicant
had to relieve himself into plastic bags because he was not sure whether
the next day he would be taken to the toilet. This went on for a whole
month or so. At the weekends, when there were few commanders present in
the buildings, the guards would come into their cells and assault them.
They would say that they were acting against Russia and Russian citizens
and they would beat them up.
610. At the Commandatura he saw through a hole in the window
of his cell Ilascu being taken out of the building. The guards stopped
him and said, “You’re next.” He saw that Ilascu refused to be blindfolded
and he was put up against a wall. Ilascu said that he had been subjected
to mock executions four times. The applicant saw it only once.
611. He was only once beaten with batons, but he was scared
all the time. At the weekend there were people who entered his cell. They
had Russian insignia on their sleeves.
He stayed at the Commandatura until the beginning of August and
then he was taken back to the basement at the pre-trial detention centre.
612. In the pre-trial centre he was interrogated three
or four times by civilian investigators, and beaten with a stick, but less
than the other applicants. As for the conditions of detention there, he
had a bath once every ten days. There was no toilet in the cell, so he
was taken out of the cell each morning to go to the toilet. The applicant
had no visits from his family or a lawyer for the first five or six months
of his detention.
613. After the trial he was taken to Tiraspol Prison No.
2. There were no sheets or blankets, and he slept on bare benches. He was
not personally ill-treated in prison. He was not allowed to see his wife
or his lawyer for six weeks.
He received no medical visits from local doctors. When the applicants
met their wives, they would ask for Chisinau doctors to come; and then
they were visited a few times. Professor T?b?rna saw the applicant in 1996
when he had chronic pancreatitis. Doctor Lesanu also came to see him. He
complained to these doctors about the prison conditions but not about any
ill-treatment after the trial. His colleagues were held in separate cells,
so he cannot confirm or deny that they were ill-treated. It was in 1992
and 1993 that all the applicants were ill-treated.
He had have received regular visits from his family. Lately he
has been receiving parcels; in the beginning there were many more restrictions.
It depended on how the prison administration felt.
614. The Moldovan Government authorities could do much
more. Although the applicant’s wife told him that the Moldovan authorities
have been trying to assist her during his detention, he considers that
they could have done more after the conflict ended.
615. The applicant heard about the so-called “Ilascu group”
for the first time when he was arrested. He has never belonged to the military
or secret services of Moldova.
616. Since the events of 2 March 1992, the constitutional
forces of Moldova had ceased to exercise control over the Eastern side
of the Dniester River; there was a state of curfew in force in the town,
with no authorisation to leave the house after 10 p.m.
10. Tudor PETROV-POPA
617. On 2 June 1992 he lived in Tiraspol. Victor Gusan
arrested him, together with a group of other persons all in civilian clothing.
He was at home; it was 6 a.m.
618. He was taken to the militia building. He was not immediately
interrogated there. He stayed there until 12 noon. Then he was taken to
the basement and put in a cell. He was kept there seven months. He was
beaten up and ill-treated at the militia building.
The guards at the militia building told him that they came from
various cities in Russia. They had uniforms, but with no insignia on them.
The applicant saw Starojouk and Gorbov. They interrogated him.
They did not wear masks when interrogating him. They did not interrogate
him about any links with Ilascu and the Popular Front. They simply wanted
him to admit that he was part of the so-called Ilascu group and to confirm
what they said. He was not a member of any political party, but he did
not want to fight on the Transdniestrian side. He had been a soldier in
Afghanistan. He had never met Ilascu. There were no Transdniestrian military
forces in Transdniestria then, the only ones there being Russian. They
were the ones who had beaten him. He was beaten by military men who wore
masks, so he did not know who they were.
619. Then he was taken to Tiraspol Prison. Before the trial,
he was kept at the militia station for several months, and then in solitary
confinement at Tiraspol Prison. He was never taken to the Fourteenth Army
Headquarters. He was interrogated during his detention by persons who were
wearing masks.
620. The applicant did not know Gorbov. He had met Bergman
at the trial. He did not really see Ilascu or Ivantoc during his detention.
He did not know any of them before the trial.
He was not visited by a lawyer at all during the investigation,
only after.
621. After the trial he suffered no ill-treatment. At the
time of the hearing the applicant was detained alone in a cell in Hlinaia
Prison, where Ilascu was.
In 1995 the applicant was visited by Professor T?b?rna accompanied
by Doctor Lesanu, in Tiraspol. In 1999 he was transferred to Hlinaia Prison,
where the regime was harsher. He had no medical treatment there. He contracted
tuberculosis in 1999. He had been offered medical treatment provided that
he asked for a pardon. If he had done so he would have been transferred
to a medical unit, but he refused.
622. He has received family visits, but guards are always
present. He has corresponded with his family, but they are not permitted
to write to him in Latin script. He receives about six parcels per year.
623. The Moldovan Government had not done all that it could.
In fact it had done nothing; otherwise the applicants would already have
been released. However, his family had been given material and financial
assistance by the Moldovan Government.
624. The applicant saw ammunition being given to the population
in 1992. This ammunition was taken from the Fourteenth Army. The Transdniestrian
army came from the Fourteenth Army, which had been the only one there before
the Transdniestrian regime suddenly seemed to have armed forces of its
own.
11. Colonel Vladimir GOLOVACHEV
625. The witness previously worked in Moscow and had come
to Tiraspol in 1985. He had started working in the prison service in Transdniestria
before the conflict began. He had simply remained at his post when he received
the order to do so.
He was born in the territory of Soviet Moldova and has a Soviet
passport, with a paper in it saying that he is a citizen of the “Moldavian
Republic of Transdniestria”.
626. Since July 1993 he has been the Governor of Prison
No. 2 where is a harsher regime than in Prison No. 3, which has women prisoners.
All the various conditions governing visits, whether long or short, parcels
and so on are to be found in the Prison Rules. Prisoners who do not break
the Rules benefit from all such entitlements. The strict regime includes
all the common-use facilities, such as the small factory, the sporting
facilities and so on, but also solitary confinement and a wing where dangerous
prisoners are kept together. Exercise walks are not available for persons
in special cells.
627. Mr Ivantoc is kept in a cell on his own, a cell designed
for six prisoners, because he refused to go on to the ordinary regime.
Mr Lesco is kept in the ordinary part of the prison and enjoys all the
normal rights. This entails four short visits and two long visits per year.
There has never been any problem about visits by lawyers. Persons detained
under the strict regime however do not often ask to see lawyers.
628. There was no deterioration in the applicants’ conditions
as from 1999. Mr Ilascu never made a complaint about this.
629. Mr Ivantoc received medical visits from doctors coming
from Chisinau.
630. As to the existence of any agreements or rules regarding
the transfer of prisoners to or from Moldova or elsewhere, the witness
stated that this is a high-level matter. For example, there has recently
been such an arrangement agreed with Russia. But such things are done at
government level; it was not for the witness to decide.
631. The witness was not aware that the Prosecutor General
of Moldova had started criminal proceedings against him for unlawful imprisonment.
632. Mr Ilascu was released in May 2001. He was freed by
virtue of a decree by the President of Transdniestria and an order of the
Minister of Justice, Mr Balala. He did not know how this happened, nor
did he know who had accompanied Ilascu to Chisinau.
633. Concerning the treatment of sick prisoners, they were
previously transferred to Benderi hospital. Lately, however, this practice
had been discontinued because of problems. Therefore, for ordinary illnesses
the treatment took place in prison. Prisoners were taken to Tiraspol hospital
for surgical operations and other delicate matters because they had no
sophisticated surgical facilities in the prison.
634. Prisoners do not often ask for a visit from a lawyer.
If the lawyer has a proper permit, then the Governor will give authorisation
for the visit to take place. It is the Minister of Justice who issues the
permits. In Prison No. 2 there are only convicted prisoners, no remand
prisoners. Pre-trial detention takes place in this part of the building,
in Prison No. 3.
635. Mr. Ilascu was kept in Prison No. 2 on his own from
1997 until he was freed. He was kept in cell no. 13. He was held in a cell
on his own because they had never had such a category of prisoner before.
There was therefore no point in putting him together with ordinary criminals.
Mr Ilascu was not asked whether he wanted this. The witness knew nothing
about Ilascu’s allegation that on 13 May 1999 civilians wearing balaclavas
came into his cell and assaulted him, and then took him out into the corridor.
He never received such a complaint from him about this. The prison service
does carry out periodic searches of the cells and the prisoners, but no
one ever wears a balaclava helmet. When the Council of Europe Committee
for the Prevention of Torture carried out a visit, the witness was asked
about members of the Ilascu group being beaten in May 1999, and he stated
that as Governor he had never received any complaints from the applicants
in this connection.
636. Prisoners can complain about alleged assault by prison
staff, interference with parcels and so on from 7.30 to 9.30 a.m. The witness
stated that he was available to meet the prisoners and, if necessary, to
hear their complaints.
637. The prisons in Transdniestria are run in accordance with
the new Prison Code. The Moldovan Code is not applicable there. Prison
No. 2, like all the other prisons there, has been under the control of
the “Moldavian Republic of Transdniestria” since December 1992. Since that
date the prison service in Transdniestria has not taken orders from the
Government of Moldova. The Moldovan Government cannot take any decisions
about these prisons. In 1992 there were in the Transdniestrian prisons
some prisoners convicted by Moldovan courts, but gradually from then on
there was a transfer of prisoners. Before 1991 transfers of prisoners were
carried out all over the Soviet Union.
638. Mr Ivantoc was a victim of his own actions, because
he had refused to leave his cell. As a consequence he had lost all his
entitlements. He was in a cell by himself because he did not wish to share
a cell with others.
639. The possibility of early release is decided after
reviewing the prisoner’s file. But the applicants in this case have never
asked for any such review. They addressed all their requests to the Moldovan
Government.
640. As Governor the witness has never had to discipline
prison officers for ill-treatment – just for transmitting messages illegally
outside the prison and that sort of thing.
641. The uniform of the prison guards is similar to the
Russian uniform. The insignia are different. The Transdniestrian officials
do not take orders from the prison authorities in Russia but they do cooperate
with them. Russian soldiers have never participated in guarding prisoners
in Transdniestria, since these prisons are not within the jurisdiction
of the Russian Federation.
642. The applicants’ lawyers had never asked for a meeting
with their clients. Had they done so, such a request would have been properly
considered.
643. There is no law or official rule that prohibits prisoners’
correspondence in Romanian, but the prison administration uses the language
which is common in Transdniestria, namely Russian. They must be able to
have censors who are capable of reading the prisoners’ correspondence.
But the prisoners are allowed to receive newspapers in Romanian.
12. Stepan Konstantinovich CHERBEBSHI
644. The witness was born in Russia. From 1989 to 1991
he worked in the militia office and from 1984 to 1989 in the prison service.
He was the Governor of Prison No. 1 from 1992 until 2001, and Deputy Governor
before 1992. At the time of the hearing, the witness was retired. His pension
is paid by the Ministry of Justice of the “Moldavian Republic of Transdniestria”.
645. In Hlinaia Prison, prisoners are held alone in their
cell which measures 16 square metres. As regards the rules on visitors,
correspondence and parcels, convicted detainees were entitled to receive
visits but they had to get permission first according to the Prison Rules.
However, prisoners in pre-trial detention had no right at all to correspond.
646. The witness was not aware of the rules as to visits
from lawyers.
647. There was a medical department in the prison, with
a pharmacy, but there was no clinic with beds. For that civil facilities
were used. Medical visits occurred upon request from the prisoner. The
applicants had been examined by outside doctors from Moldova.
648. After their trial the applicants were sent to Hlinaia
Prison. Ilascu was held separately and the other three were in one cell
together. They had the right to leave the cell and to have an exercise
walk for one hour per day. Those who were ill had one additional hour of
exercise.
649. Hlinaia Prison had a special wing for tuberculosis
sufferers, but Petrov-Popa was not a prisoner when the witness was Governor
of Hlinaia Prison.
650. Ilascu had been subject to special conditions in prison
because he had been sentenced to death. He was not allowed to share his
cell with other prisoners. The window of Ilascu’s cell had shutters which
closed from the outside. The light still came through, but the prisoner
could not look through the shutter. For Ilascu special permission from
the Ministry of Justice was needed before anyone could visit him.
651. The witness never received any official complaints
from Ilascu about his treatment when in Hlinaia Prison. He never heard
that Ilascu’s sentence had been quashed by the Moldovan Supreme Court.
Ilascu was not the only death-penalty prisoner: there was one other, who
was kept in the same conditions.
652. Hlinaia Prison was not subordinate to the Supreme
Court of Moldova and the organs of the Moldovan State and the Moldovan
Government had no authority over the prison service in Transdniestria.
653. The witness never received any orders either from
Russia or from the Russian military authorities stationed here. There were
no Russians guarding the prisons in Transdniestria. The uniform of the
prison service in Transdniestria was similar to the Russian military uniform,
during his professional service.
654. A prison governor has no power, without a superior
order, to make a decision on the transfer of a prisoner. During the time
the witness was Prison Governor, he never had a prisoner transferred from
another country, for example Russia. For a transfer from the penitentiary
system of one country to another there must be a special order.
13. Sergey KUTOVOY
655. The witness has been the Governor of Prison No. 1
since 2001. He entered the penitentiary system in 1993 and has spent his
professional career in prison administration. He is also studying for an
Open University degree.
656. In 2000 a new Criminal Code and new internal Prison
Rules of the “MRT” had been introduced. The position was significantly
different before, when the legislation and rules of the Moldovan Republic
applied. Under the new regime prisoners’ conditions have been improved.
More visits are allowed and, with good behaviour, the entitlements can
be increased, for example with three additional visits. As regards visits
by lawyers, convicted prisoners can receive visits without restriction.
The Hlinaia Prison has round-the-clock medical care.
657. No complaint was ever received from the prisoners
about their conditions of detention. None were made to the Council of Europe’s
Committee for the Prevention of Torture. But it was true that a very recent
report by this Committee made certain criticisms concerning the covering
of the windows in the cells and the regime of isolation. The investigation
of a member of the prison staff after a complaint by a prisoner was rather
an exception. There had been no more than twelve since the witness had
taken up his duties.
658. The right of a convicted prisoner to receive a visit
from his lawyer depends on the seriousness of the crime for which the prisoner
is detained, on whether he has previous convictions and so on. There are
three categories of prison regime. The prison authorities apply the courts’
decision as to what regime is to be applied to a prisoner. The prison administration
can subsequently change the regime – for example, if the prisoner has committed
a breach of the prison regulations.
659. Neither the Prison Administration in Moscow, nor the
Russian Operational Group in Tiraspol can give orders to the Prison Administration
in Transdniestria.
660. The transfer of a prisoner from one institution to
another can only be decided by a court. The Government decide on an extradition
case.
661. At the time of the hearing, the only one of the applicants
detained there was Petrov-Popa. Cell no. 31 used to be occupied by Ilascu.
The cell had a standard window with shutters. These shutters are the same
as those used in Chisinau prisons. Recently, in Hlinaia Prison the shutters
had been dismantled in six cells, but for lack of financial and technical
means it had not been possible to remove them in all cells, as the shutters
needed to be replaced with bars.
662. Prisoners suffering from tuberculosis are detained
in all zones of the prison; there are no specialised units for such patients.
Mr Petrov-Popa, who had tuberculosis, had moved into the cell previously
occupied by Mr Ilascu. He was allowed to go for exercise walks just like
the other prisoners. In 2002 Mr Petrov-Popa’s regime had been improved
on the witness’s orders. He was the only prisoner to have benefited from
a new regime in that year. Mr Petrov-Popa now has the right to receive
six parcels and six short-term visits per year, instead of three.
No restrictions on language are applied. Thus, Mr. Petrov-Popa
could receive letters or newspapers in Romanian. Mr Petrov-Popa has never
complained about the conditions in his cell. He was the one who asked to
go back into his present cell. Petrov-Popa has never asked for a visit
by a lawyer.
14. Lieutenant-Colonel Yefim SAMSONOV
663. The witness was head of the medical department in
the Transdniestrian prison service.
664. The witness examined the applicants during the trial,
in Tiraspol Prison No. 2. There were prison officers present. The applicants
never trusted prison medical services and categorically refused medical
services from the medical staff of Prison No. 2. They never asked the witness
to examine them in relation to alleged ill-treatment. The witness never
saw any signs of ill-treatment on them. On several occasions, doctors from
outside the prison service, from Chisinau, came to examine the applicants
and brought the appropriate medicine with them. These were Professor T?b?rna
and Dr Lesanu.
665. The applicants were not suffering from any special
illnesses. In 2002 Mr Petrov-Popa was treated for tuberculosis. He had
a damaged lung from which liquid was drained. Some time ago Ivantoc had
had a liver operation. Professor T?b?rna came as a specialist from Chisinau
to treat him. The recommendations of Professor T?b?rna’s team in relation
to the applicants were not implemented, because the applicants refused,
as they did not trust the prison doctors.
666. The Prison Administration in Transdniestria did not
take instructions from the Russian Federation. There was no organic link
with the Moldovan Ministry of Health or Ministry of Justice, but there
was sometimes a contact with the Moldovan Ministry of Justice.
15. Vasiliy SEMENCHUK
667. The witness, the holder of a Moldovan passport obtained
before he was working in the prison service, has been the prison doctor
in Hlinaia Prison No. 1 since 1995. He never worked in Tiraspol Prison
No. 2. As the prison doctor in Hlinaia Prison, he was responsible for all
sanitary and hygiene conditions in the prison. The witness was a dentist,
but he could also carry out blood tests. Moreover, he was assisted by a
surgeon and other specialists on his staff.
668. The witness had only met the applicant Ilascu, none of the
other applicants. Mr. Ilascu never asked to see the witness; he wanted
an outside medical delegation from Moldova or Tiraspol to see him. Lieutenant-Colonel
Samsonov accompanied the external doctors when they examined Ilascu. Professor
T?b?rna and Dr. Lesanu came and took samples of blood and urine to analyse.
The examination took place, not in Ilascu’s cell but in an office. Ilascu
did not make any complaint about ill-treatment, he just complained about
his problem of digestion.
669. There are no regular medical visits for prisoners,
but only if the prisoner asks. There is a permanent medical unit in the
prison.
670. The witness did not meet the applicant Petrov-Popa.
The applicant was detained in a cell on his own. Mr Petrov-Popa never asked
for medical assistance. He was currently on level 3 of his illness, that
is, the illness was not active. Treatment was needed every nine months,
not at shorter intervals, as was confirmed by the Medical Department.
671. There was a visit to the prison in 2003 by the Council
of Europe’s Committee for the Prevention of Torture. The witness did not
remember the visit by this Committee in the year 2000. He did not remember
that after the 2000 visit, the CPT was concerned about the applicant’s
access to treatment for tuberculosis, in that he was dependent on his family
and their resources for purchasing medicine, and that it was up to his
family to provide food for his special diet. The witness recalled that
in the past the prison administration did not have the appropriate medicine
to dispense to Mr Petrov-Popa, but stated that the situation had changed.
672. Mr. Ilascu never complained about his teeth. He had
all his teeth when the witness saw him. After the visit by Professor T?b?rna’s
team, Ilascu’s wife brought him medicine from Chisinau. The witness was
always present during Mrs Ilascu’s visits and he encouraged her to bring
Ilascu the necessary medicines. Mr Ilascu complained about his stomach,
but his pain was not the result of any act by the prison administration.
The witness last saw Ilascu in 1999.
16. Dumitru POSTOVAN
673. Mr Postovan worked as a prosecutor from 1990 till
1994 and as Prosecutor General from 1994 till 1998. He had been appointed
prosecutor in 1990 by the Parliament of Soviet Moldova. At the time of
the hearings, he was working for the Chamber of Trade and Industry, and
advised its President on international law.
674. There was never an official split between Moldova
and Transdniestria. As a result of the military conflict in 1992, the constitutional
authorities of Moldova had to pull out of Transdniestria as they lost control
over this region.
675. The applicants were not “arrested”; they were just
captured. There was no custody order of an official court of Moldova. A
number of people were captured. The Prosecutors’ Office wrote to Smirnov,
in his capacity as head of the Tiraspol City Council (he had been appointed
in 1990) asking him to hand these people over to the prosecuting authorities
of the Republic of Moldova, but there was no answer to this request. It
was Mr Sturza who headed the negotiations.
676. General Iakovlev was detained around February-March
1992 upon an order issued by the Prosecutor General’s Office. The order
to arrest him was indeed discussed with the top leadership in Moldova,
but it could not be said that it was the Government who ordered his arrest.
This General, who, at the time of his arrest, was no longer in Command
of the Fourteenth Army, had been instrumental in arming the paramilitary
forces in Transdniestria. The Moldovan intelligence services arrested him
in Ukrainian territory and took him to Chisinau. The investigation was
carried out on behalf of the Prosecutor General’s Office by Ministry of
Security investigators. The Prosecutor General’s Office monitored the evidence
gathered. He was detained only 72 hours since, according to Moldovan legislation,
suspects could not be detained for more than 72 hours. He was released
because of a lack of evidence, as the Moldovan authorities simply did not
have the opportunity to carry out a proper investigation in relation to
the facts alleged against him. There must be in his file at the Prosecutor
General’s Office a written order for his release. As there was no access
to Transdniestria to obtain further evidence, he had been released since
the evidence that the prosecuting authorities had against him was insufficient.
The witness had heard about the rumours that Iakovlev had been
released in exchange for the release of 23 Moldovans detained by the Transdniestrians.
Indeed, the Moldovan authorities were detaining about 40 Transdniestrians
and an exchange had taken place. But this had nothing to do with Iakovlev.
The witness was not aware of any pressure from the Russian Government to
release him. He knew that General Stolyarov came from Moscow to Chisinau
to seek his release, as he had received the report concerning Iakovlev.
677. The Prosecutor General’s Office had warned the President
of the so-called Supreme Court of the “Moldavian Republic of Transdniestria”
that she and her court had no jurisdiction and that the applicants should
be transferred to the Moldovan authorities for trial. At the time the “Moldavian
Republic of Transdniestria” was governed by the Criminal Code of Moldova.
On 9 December 1993, on the second day after the trial, the Moldovan Supreme
Court quashed the decision of the Supreme Court of the “Moldavian Republic
of Transdniestria” as being unconstitutional.
678. For every case where a crime was suspected of having
occurred in Transdniestria, the Prosecutor General’s Office opened a case
file. It did so also as regards Ilascu and his fellow prisoners, after
the decision of the “MRT Supreme Court” had been quashed by the Moldovan
Supreme Court, but it was impossible to carry out an investigation and
proceed to all necessary acts for that purpose. In August 1995 an amnesty
was granted by the President of Moldova, followed up by a decision of the
Parliament. The effect of this on investigations was that any case covered
by the amnesty was stopped.
679. The witness’s deputy opened a criminal investigation
in December 1993 in relation to the prosecutors and judges who had been
involved in conducting the Ilascu trial, on suspicion of committing an
abuse of power. A number of investigations concerning persons occupying
posts of power in Transdniestria were opened. But it proved impossible,
not just difficult, to carry out any investigation. The Prosecutor General’s
Office interviewed the families of the Ilascu group, but they could not
provide much information.
680. Apart from the Ilascu group, there were other people
who were detained for short periods in Transdniestria, but no one was prosecuted.
681. Following the motion of October 1995 by the Moldovan
Parliament calling on the Moldovan Government to deal as a matter of priority
with the problem of the detention of the Ilascu group, the Prosecutor General’s
Office requested that the file be sent to them by the people in Transdniestria
for the purpose of an investigation, and that the persons they were detaining
be transferred to Moldova. But these requests were simply ignored. One
could see no way of resolving the issue satisfactorily other than by diplomacy.
682. The witness was not in office in the year 2000 and
was therefore unable to answer any questions about the order annulling
the prosecution of the judges and prosecutors in Transdniestria who had
been involved in the trial against the applicants. Likewise, the only information
he had about the release of Ilascu was what he had read in the newspapers:
that this release was the result of negotiations between President Voronin
and the Russian President.
683. Between 1992 and 1998, apart from the dispatch of
numerous letters, the witness’s deputy, Vasile Sturza, was specifically
charged with the responsibility of working to secure their release. He
went to Tiraspol, he had meetings with the Parliament, and so on. It was
not so easy for him to go to Tiraspol, but he managed to obtain the authorisation
of the Tiraspol regime. However, when he got there, he did not meet anyone.
No positive results were achieved. The Prosecutor General’s Office also
requested that prosecutors be permitted to travel to Tiraspol in order
to investigate whether the members of the so-called Ilascu group had committed
the murders of which they were accused, but these requests were ignored.
They also requested that a joint investigation be carried out. This second
request was again ignored. The witness and his office reported to the new
Parliament in Moldova. His Deputy, Mr Sturza, was later assigned to negotiate
with the Transdniestrian authorities.
The Prosecutor General’s Office did not contact the Russian prosecution
authorities directly, although there was an agreement to that effect between
the Moldovan and Russian authorities.
684. The witness stated that, officially, there were never
any recognised or implemented agreements between the judicial authorities
of Moldova and Transdniestria. He admitted that, unofficially, there were,
with a view to combating serious crime. The Moldovan authorities would
call the authorities in Transdniestria. There were sometimes exchanges
of prisoners. However, practically all prisoners had been exchanged by
the time the Ilascu group were arrested, so that there was no one else
left to exchange. As regards serious crime, information would be exchanged
or witnesses called from the other side, but no prisoners were exchanged.
If a person had deserted the Transdniestrian military forces, the Moldovan
authorities would not extradite or hand them over to the Transdniestrian
authorities. There was no agreement for extraditing or handing over suspects.
The witness admitted that there might on occasions have been some special
operations by the security services, but there was never any official extradition
agreement.
685. The witness was not aware of the order issued by his
successor, Mr Iuga, in August 2000, dropping the charges against the judges
and prosecutors who had taken part in the Ilascu trial, but thought that
the Prosecutor General should have invoked other Articles of the Criminal
Code, for example the one on abuse of public power, so that they would
not be free of any criminal charge.
686. According to the witness, the effect of initiating
a criminal investigation against the governor of the prison where the members
of the Ilascu group are held, is that he would run the risk of being arrested
in Moldova.
687. The witness considered that the State authorities
of Moldova had done all in their power to secure the applicants’ release.
On the diplomatic level, all the initiatives had been met with the response
that these issues would be determined when the status of Transdniestria
was resolved and not before. Finally, the witness was of the opinion that
only political action, not legal action, would secure the release of the
members of the Ilascu group freed.
688. The witness stated that there were other instances
apart from the Ilascu case in which a criminal prosecution had been started
against judges and prosecutors in Transdniestria. He did not know for certain
the outcome of those investigations, but he presumed that they were stopped
for the same reasons.
689. The witness did not feel any pressure at all when
he was working in the Prosecutor General’s Office. The Prosecutor General
was independent of the Government. The Minister of Justice could not give
him instructions, though the Government could address requests or proposals
for the opening of an investigation.
690. The witness considered that the constitutional Moldovan
authorities exercised no power or authority over the eastern part of the
country.
691. Smirnov was arrested in 1992 and then released. It
is true that Antiufeev and others visited Moldova several times but were
not arrested. This is because there was a truce on 21 July 1992. After
that truce the Moldovan authorities had to move in a different direction,
they had to find points of agreement. Investigations were suspended; no
retaliatory actions were carried out. Prisoners detained in the battle
area, for example, Cossacks, were handed back; no investigations were started
against General Lebed, and so on.
692. The witness was not aware that officers of the Fourteenth
Army had been detained by the constitutional Moldovan authorities during
the conflict in 1992. Indeed, he had written to the Russian prosecuting
authorities in relation to the presence of the Cossacks in Transdniestria
in order to learn about the position of Russia on this. In reply, the Russian
prosecuting authorities informed him that they did not officially recognise
the authorities of the Transdniestrian separatist regime.
693. There were official relations between the Prosecutor
General’s Office in Moldova and the prosecutor of the Fourteenth Army whenever
that was required. As far as the Ilascu case was concerned, officially
the Fourteenth Army denied that they were in any way involved and the Moldovan
authorities had no official data enabling them to make a request to them
in connection with the Ilascu case. The Fourteenth Army denied their involvement
in the conflict in 1992.
694. The witness had seen a film on Russian television
about the participation in the elections there of a “Colonel Gusev” who
was in fact General Lebed, but the Moldovan authorities had no official
information on that, however.
695. President Snegur went before Parliament to say that
the Fourteenth Army had intervened in Transdniestria with their tanks.
The witness thought that this information must have been true since he
could not see otherwise where the Transdniestrian separatists had got their
tanks from. The witness also acknowledged that in June 1992 official information
was presented to Parliament by the Ministry of the Interior about the participation
of tanks and armoured vehicles in the conflict. But it was not easy to
say whom to prosecute. In the beginning, the Fourteenth Army was supposed
to belong to Moldova, then it was decided that it belonged to Russia. There
was in fact no close collaboration with the Fourteenth Army in prosecution
matters because none was needed. There were no incidents.
17. Valeriu CATANA
696. The witness was the Prosecutor General of Moldova
from 1998 to 1999. Before that, from 1996 to 1998, he was the prosecutor
for Chisinau. He worked in the Prosecutor General’s Office from 1990 to
1996 and for the prosecuting authorities from 1973 to 1990.
697. The constitutional prosecuting authorities of Moldova
had no access to Transdniestrian territory from 1992 onwards in the absence
of any official contact with the regime. In that period the witness never
visited Tiraspol, although measures were undertaken by the Moldovan authorities
in an endeavour to secure the release of the members of the Ilascu group.
After ceasing to be Prosecutor General, the witness also ceased to follow
the case.
698. The witness had not heard about the order of 16 August
2000 by the Prosecutor General to stop the investigation against the judges
and prosecutors in Transdniestria under Articles 90 to 192 of the Criminal
Code on the ground that the persons concerned had never held official office
in Moldova. The witness thought that the decision to stop the investigation
was incorrect.
699. The witness had read in the newspapers that President
Voronin and the President of Russia, and even Romania, had assisted with
the release of Mr Ilascu.
700. There was no cooperation, whether official or unofficial,
between the prosecuting authorities of Moldova and Transdniestria. The
witness had personally never talked to a Transdniestrian prosecutor.
The witness knew that the Ministry of the Interior had orders
to cooperate with the Ministry of the Interior of Transdniestria in order
to improve the fight against crime - to return to the other side of the
river persons suspected of serious crimes. But there was no formal extradition
as such, since it concerned persons on the territory of the same State.
But unofficially it did go on. As regards extradition in general, previously
it was done by decision of a prosecutor. Now the legislation had changed
and what was required was a decision by a court.
There was no official agreement between Moldova and Transdniestria
to exchange people when the witness was Prosecutor General in 1998 and
1999. To his knowledge, no such agreement had ever been made. The transfer
of persons between Moldova and Transdniestria was organised by the Ministry
of the Interior. There were some cases of persons committing crimes in
Transdniestria being transferred from Moldova to Transdniestria. Officially
this was not done, but unofficially the two police forces would cooperate
and would transfer these people. For example, in 1995 there was a case
brought against the police commissioner in Dubasari, and he was extradited
to Transdniestria.
701. During his period of office the witness received no
requests from Mr Ilascu or the other applicants and had no contact with
the Transdniestrian authorities about the Ilascu case. In that period no
one in his office worked on the case brought against the judges and prosecutors
in Transdniestria. The case was suspended. In the period 1998 to 1999 no
investigation was pursued in that connection, although the formal decision
stopping the case was taken in 2000.
702. The Supreme Court of Moldova had received a copy of
the judgment delivered by the so-called Supreme Court of the separatist
entity, but not the case file. There was cooperation only at the level
of the Ministry of the Interior. Prosecutors at a lower level may have
made telephone calls to colleagues whom they knew in Transdniestria, but
that would have been a purely personal affair. Up until 1998 there was
no special prosecutor who dealt with Transdniestria. The witness created
such a division in 1998, with responsibility for international relations,
not specifically for Transdniestria; but if a problem concerning Transdniestria
cropped up, then this department would deal with it. This department however
was not competent to carry out investigations in relation to crimes allegedly
committed by Transdniestrian officials; the competent one was the investigations
department. But, in any event, Moldovan authorities had no access to information
concerning events in Transniestria, so they would not have opened any investigations
even if they had received a request from a private person.
703. No complaint was sent by Mr. Ilascu to the Prosecutor
General’s Office. The letter which Mr Ilascu sent in 1999 to the Moldovan
Parliament was not forwarded by Parliament to the prosecuting authorities.
The witness had never heard before of such a petition by Mr. Ilascu.
704. The witness stated that he had been forced to resign
for political reasons because persons from the Communist Party objected
to his work, as he insisted on taking his decisions on the basis of the
law and not according to the way the political wind was blowing. When a
dismissal is judged to be desirable, one can always find a reason, and
that is what happened to the witness. The post of Prosecutor General was
a political position in a sense. The witness tried not to get involved
in political activities and just to stick to the law. But unfortunately
some cases touch on politics.
705. The witness was of the opinion that the release of
the Ilascu group would have been possible only by the use of force. The
constitutional Moldovan authorities could not have done more than they
did. Even in terms of international pressure, they did all that they could.
18. Witness X.
706. The witness was a former senior official involved
in negotiations with Transdniestria. At the time of the hearings, he was
working in a non-governmental organisation.
707. The Fourteenth Army was involved in the events of
1991 to 1992. Retired Fourteenth Army officers were hired by the separatists.
The Fourteenth Army then intervened directly, which led to a military victory
for the separatists. Thereafter Russia intervened, and imposed negotiations
and “peace-keeping”.
There was a meeting of the Moldovan, Russian and Ukrainian Ministers
in which the witness participated. There was a possibility of a resolution
of the situation in 1992. Romania supported the position of Moldova. But
the formula proposed for the resolution was torpedoed when the Russian
secret services provoked the incidents in the town of Bender, which wrecked
the negotiations and ended the role of the observers. The military defeat
of Moldova was sealed in July 1992 when the Russian President Yeltsin and
the Moldovan President Snegur signed an agreement in order to stop the
conflict. The agreement was only signed by these two Presidents. The conclusion
to be drawn was that the Russian Federation was the other party in the
conflict; it controlled the region, and it had the resources to stop the
conflict after the military defeat of Moldova. The formula of “peace-keeping”
was imposed by Russia. The conflict also saw the participation of the illegal
troops of the Transdniestrian regime. As a result of the conclusions reached
in the Control Commission set up under the Yeltsin/Snegur Agreement, the
separatist regime was strengthened.
708. Smirnov was hidden by the Command of the Fourteenth
Army, by Guennadi Iakovlev, in August 1991 when he feared arrest by the
Moldovan authorities. Iakovlev was then placed under the orders of Smirnov,
with instructions to protect the unconstitutional regime in Transdniestria.
The witness was present in person in the spring of 1992 at the
interrogation of a young man from Rostov on Don, who had been taken prisoner
by the constitutional Moldovan military forces. He admitted that he had
been sent to Moldova to protect the Russian land in Transdniestria. The
witness had interviewed a former KGB official who was serving in Tiraspol
in 1991. This officer told the witness that a Russian counter-intelligence
division (GRU) had arrived in Tiraspol and that he intended to leave Tiraspol
because he knew that trouble and bloodshed were coming. The Fourteenth
Army was left under Russian control, so that Russia would have a reason
to intervene.
709. The witness carried out an interview with Igor Smirnov.
He had been elected, together with 64 other representatives, to the United
Council of Labour in Transdniestria in February/March 1990. He had voted
for Mircea Druc as Prime Minister and so had every possibility to prove
himself a democratic. The witnessed interviewed him with regard to the
purpose of holding the so-called second Congress in 1990 (this being the
Congress which led to the proclamation of the Transdniestrian Soviet Socialist
Republic). Igor Smirnov said that it was the languages legislation in Moldova
which had turned him and his fellow Transdniestrians into second-class
citizens. But he had been unable to show the witness one single provision
in the languages legislation that had such an effect. This proved that
his separatism did not have at its basis a problem that could not be resolved
in a democratic way.
The scenario used in Transdniestria had been used before in Abkhasia
and South Ossetia, but had failed in the Baltic States. The political process
in Moldova on the break-up of the Soviet Union, with a delay of one year,
followed that of the Baltic States. The result was a situation where public
organisms were no longer controlled by the Communist Party. But the end
story was different here. The Baltic States had managed to avoid separatism.
In the Baltic States there were the same attempts by the Antiufeev group
to undermine constitutional authority. Antiufeev, who was now a Minister
in the Transdniestrian separatist Government had escaped from Latvia. In
an interview he said that he had been sent to Moldova by the Soyuz Group
in the Soviet Parliament, headed by Mr Lukyanov. He was offered Abkhasia
or Transdniestria. He chose Transdniestria because there was no language
problem. He was sent to another State to fight the established constitutional
order, as he had done in Latvia. He and Oleg Gudymo, his deputy, are Russian
citizens. He is included in the Duma electoral lists as a supporter of
Stalin “black” candidates. These candidates were not elected, but it is
informative that Antiufeev is part of that tendency.
710. On 25 or 26 March 1992 the witness went to the Fourteenth
Army Headquarters, together with several Moldovan MPs and General Netkachev,
Commander of the Fourteenth Army. A majority of the officers were disoriented.
They were in an informants’ environment where they could easily be manipulated.
This is why some troops went over to be under the jurisdiction of the Transdniestrian
separatists. An ethnic Moldovan officer of the Fourteenth Army came to
Chisinau – he was a major – to tell the witness about the plans for the
participation of the Fourteenth Army in the coming conflict. The so-called
Transdniestrian Army, including a number of tanks belonging to the Fourteenth
Army, was organised by officers of the Fourteenth Army. The separatists
had at their disposal heavy artillery, which allowed them to take over
the territory of Transdniestria. They had well trained tank drivers, helicopters
and eighteen tanks. None of this was available on the private market.
711. Igor Smirnov was a citizen of the Russian Federation.
712. The witness thought that the Russian troops would
stay in Moldova until a political solution convenient to the Russian Federation
was found. If the Fourteenth Army had not been withdrawn in eleven years,
that was because the Russian Federation had not wanted it. They kept the
Russian military presence there in order to put pressure on Moldova and
to protect the illegal separatist regime. An agreement was signed in Odessa
in March 1998 between Mr Chernomyrdin, the Russian Prime Minister, and
Mr Smirnov concerning the division of the military property of the former
Fourteenth Army. Transdniestria had become the centre of illegal commercial
activity, with sales and exports of arms from the equipment of the former
Fourteenth Army.
If the Fourteenth Army withdrew, this would lead eventually to
a solution of the problem. No military equipment had been withdrawn recently.
The date for the complete withdrawal had not been respected, and the new
one would not be either. There was a statement on the web site of the Russian
Duma to the effect that members of the Duma were requested to refrain from
making declarations on Transdniestria because of the case pending before
the European Court of Human Rights, since such declarations could damage
the situation in the case.
713. Mr Ilascu represented the Popular Front in Tiraspol.
He had been released under pressure from the Russian Federation. He was
in a sense released conditionally – that is on condition that he withdrew
his application. The other applicants remained hostage. This had been confirmed
by President Voronin, who said that Ilascu was himself to blame for their
continued detention because, if he withdrew his application to the European
Court, they would be immediately released.
714. General Lebed, Commander of the Fourteenth Army like
Iakovlev before him, had allowed himself to be elected to the unconstitutional
legislative body in Transdniestria. He had openly described how he had
armed the Cossacks to fight the constitutional Moldovan authorities.
715. One of the questions asked at the public hearing before
the Court in Strasbourg was: does Russia provide economic support to Transdniestria?
The answer given by the Representative of the Russian Federation was that
the Russian Ambassador to Moldova had simply visited Tiraspol and declared
the interest of the Russian Federation in participating in the privatisation
process in Transdniestria. This was recognition of legitimacy as regards
the separate economy of Transdniestria, quite apart from the agreement
on cooperation, providing for a list of goods which would benefit from
preferential treatment, for free movement of goods and tax exemption for
goods from the eastern part of Moldova.
There was also a debt of seven hundred million dollars owed by
Transdniestria to Russia for gas consumed, according to the representative
of the company supplying gas, Gazprom. The Russian State had supplied gas
free of charge to Transdniestria for eleven years. It had done this in
order to support the illegal regime there, indeed to permit its economic
survival.
As regards political support, one could cite the declarations
of the Russian Vice-President, Mr Rutskoi, in Moscow in 1992 and on visiting
Tiraspol. A committee of the Russian Duma had been set up to help solve
the problems in the Transdniestrian Region – with no mention whatsoever
of the fact that this was an illegal regime in Transdniestria. One could
also cite the memorandum signed in Moscow in 1997 by President Lucinschi
of Moldova and Smirnov for the “Moldavian Republic of Transdniestria”,
and countersigned by President Yeltsin for the Russian Federation and President
Kuchma for Ukraine, which recognised the legal validity of the Transdniestrian
authorities in the negotiation process.
716. The budget of Moldova at the time was three hundred
million US dollars. The aid to the Transdniestrian region by Russia was
twice the size of the annual Moldovan budget. The steel factory in R?bnita,
in Transdniestria, contributed 60% towards the Transdniestrian budget.
Because it operated free of charge and free of taxes, it was essential
for the survival of the illegal regime. There was also considerable smuggling
activity, but that was another matter.
717. If the Fourteenth Army had not participated in the
conflict in 1991 and 1992, the illegal regime would not have survived.
The participation of the Fourteenth Army was decisive for the military,
political and moral defeat of the constitutional Moldovan authorities.
And it was essential for ensuring the survival of the illegal, separatist
regime.
718. The witness first heard of the Ilascu group after
their arrest. He did not know whether this group were members of the secret
services of Moldova. Their trial was necessary for political reasons in
order to strengthen the illegal regime.
19. Mircea SNEGUR
719. The witness was President of Moldova from 1990 until
1996. At the time of giving evidence, he was honorary President of the
Liberal Party.
720. In 1989 Russian troops arrived in large numbers in
Moldova. In that period, intellectuals in Moldova were fighting for their
rights and, in particular, for the right to speak the Romanian language.
The witness’s statements for the attention of the United Nations, the Community
of Independent States and the Government of the Russian Federation were
based on the fact that the Fourteenth Army was still on the left bank of
the Dniester, albeit perhaps in reduced numbers. This Army armed the separatist
rebels. Because of this military support, the conflict broke out. The institutions
of the Moldovan State began to be destroyed – the police, the courts and
so on. A parallel army appeared, better equipped than the regular forces
of Moldova. The witness made not only statements but also visits to Moscow
to inform the Russian Government. Ammunition stores were broken into and
arms distributed to the rebels. The constitutional forces were not so well
equipped.
President Yeltsin possibly did not give any direct orders. But
it could not be denied that there had been military, economic and intellectual
support. The rebels in Transdniestria had at their disposal a very well-equipped
army.
721. The document ending the conflict, signed by Yeltsin
and the witness, attested to the fact that the parties in the conflict
were Russia and Moldova.
Before the presidential declaration was signed, it was the task
of Alexander Rutskoi, the Russian Vice-President, to come to Chisinau to
negotiate a settlement. The draft agreement he negotiated was then signed
in Moscow. On the Moldovan side the main negotiators were the Prime Minister,
namely Valeriu Muravschi, the Speaker of the Parliament and the witness
himself.
722. The July 1992 cease-fire agreement in Moscow was not
signed by Smirnov, though he was present. When the agreement was signed
between Russia and Moldova, the parties exchanged texts. There were only
two signatures to the agreement as such: Yeltsin’s and Snegur’s. The witness
did not know where the signature of Smirnov came from when it appeared
subsequently. It could be that Mr Rutskoi let him sign it afterwards.
723. The reason why the agreement in 1992 was signed was
that there was a risk of seeing the Fourteenth Army in the streets of Chisinau.
People were dying. One particular State was supplying arms to the rebels
in order to make this possible. There was a risk of tanks arriving in Chisinau.
No tanks are produced in Transdniestria. Forty per cent of the industry
in Moldova in Soviet times was in the Transdniestrian region – steel works,
factories for the production of domestic electrical appliances such as
refrigerators, the manufacture of trucks, and so on. The Transdniestrian
army had tanks, the Moldovan army did not. The tanks drove into Bender
and then back. This constituted enormous psychological pressure; it was
broadcast on all television stations. This was not simply a display on
an exercise field.
What the Moldovan side wanted was an end to the conflict, a cease-fire,
and that they obtained. They also supported, in the drafting of the document,
the introduction of peace-keeping forces in Transdniestria from Russia,
as they wanted them to influence Smirnov in Tiraspol.
724. Tanks of the Fourteenth Army took part in the conflict.
For example, in the Bender operation, tanks crossed the bridge and then
went back.
725. No negotiations took place directly with the Fourteenth
Army. But there were telephone conversations with the Fourteenth Army in
order to try to persuade them not to arm the separatist rebels, for example
with General Lebed. The witness heard statements by General Lebed on television
saying, “Our tanks are going to Bucharest if necessary”, and so on. But
at that time the witness did not meet Lebed. He subsequently met him in
Moscow at the Kremlin for a reception to commemorate the Second World War.
726. In the agreement of 21 July 1992 Russia, acknowledged
that it had influence over Tiraspol and that it did actually exercise that
influence – for example in imposing a cease-fire - which was very important.
Every day of continued fighting produced more corpses. It was therefore
extremely important to bring about a cease-fire as soon as possible. Only
later other matters such as the role of the Fourteenth Army were discussed.
727. The witness thought that the political and economic
support to Transdniestria from the Russian Federation still counted. Since
this illegal separatist regime was still operational and accepted with
all honours in the Russian Duma and had been visited by other personalities,
there was plenty of evidence of support. There was a frank acknowledgment
by the Deputy Speaker of the Duma, Guennadi Seleznev, on an official visit
to Chisinau in 1992, when he said, “We Russians have to support Transdniestria.
If we had not supported the Transdniestrians in the conflict, Moldova would
have been integrated into Romania.” That was a perfectly clear acknowledgment.
The regime could not have survived without Russian economic and political
support. For example, in relation to energy resources – Transdniestria
had huge debts to Russia for the supply of gas. Because of the fact that
they were continuing to receive gas and electricity free of charge, the
people in Transdniestria were living very well. They had been granted preferential
access to the Russian and Ukrainian markets because they had no access
to European markets, whereas Russia had stopped the gas supply to Moldova.
728. As to relations with Transdniestria, since 1992, after
the situation calmed down, there had been no more shooting. The next stage
was to try to seek a final settlement of the conflict. The first productive
meeting took place on 29 April 1994 near Tiraspol. A declaration of intent
was signed to resolve the conflict by peaceful means and to provide a special
status for Transdniestria within a unitary Moldova. When the witness was
President, there was a schedule of meetings, with the Moldovans going to
see the Transdniestrians and vice-versa, on currency issues, customs controls
and so on. The intention was to rebuild not only commercial links but also
political relations. There were many negotiations. Transdniestria was to
be an entity where there were three State languages – Russian, Ukrainian
and Moldovan. After 1996 these concrete, specific steps towards reconciliation
stopped. There was a ray of light when Mr Voronin came to power.
During the witness’s time as President, there had been contacts
with Transdniestria, sometimes good, sometimes bad. The Moldovan view was
that negotiations were better than conflict. The participants were the
witness himself, Mr Smirnov, the Speaker of the Moldovan Parliament, Mr
Diacov, and Mr Lucinschi. On the Transdniestrian side, there was also their
so-called Prime Minister and other Ministers and Departments when particular
items came up on the agenda – for example post, customs and media. Most
of the time, the Moldovans met their demands, especially on economic issues,
because otherwise ordinary commercial enterprises, the working people and
the peasants would have suffered. There were no representatives from the
Fourteenth Army there as a party. There were mediators present at all meetings
– from Russia, Ukraine and the OSCE.
729. As to the presence of Russian troops in Moldova, the
witness stated that the presence of military personnel was not the only
measure of an army’s effectiveness. There were still more than two hundred
thousand tons of armaments and missiles in Transdniestria. The Russian
side should implement all the agreements into which it had entered, then
Moldova would not be in the present situation.
If the withdrawal of the Russian troops from Transdniestria had
taken so long despite previous agreements, it was because this must have
been the wish of the Russian Federation. The withdrawal of their troops
had been stipulated in various documents. On the entry of the Russian Federation
to the Council of Europe, this was one of the conditions. At the Istanbul
summit the withdrawal was to be terminated at the latest by the end of
2002. Now it was to be the end of 2003. This delay was probably the result
of influence by politicians who were dragging their feet at the request
of the Transdniestrian side until a final settlement had been reached.
730. A number of efforts were made after the cease-fire
to secure the applicants’ release. For example, there was the decree in
1995 declaring an amnesty for all those who had taken part in the conflict.
For anyone detained in Moldova, amnesty was granted. The Transdniestrian
side did not keep their part of the bargain. The sentencing of Ilascu and
his colleagues was a farce, the result of bad faith. The witness immediately
issued an order in 1993 declaring their trial illegal. The Ilascu question
was on the agenda of every meeting with the other side. They just kept
providing promises: “We will come back to this”, and statements to that
effect. The witness met President Yeltsin personally and spoke to him about
the issue. Moldova raised it at the CIS meetings. But the Moldovans were
not listened to by the Russians. The Communist President of Moldova was
listened to by the Russians two days after he entered into office, with
the result that Ilascu was released.
731. Mr Yeltsin’s reaction every time was one of understanding
and compassion and promises to influence Smirnov. But this did not happen.
President Yeltsin never said that he had no influence. He was forever making
promises that he would try to influence Smirnov, but his promises would
stay without effect until the next meeting. The release of Ilascu was not
the result of any action by Smirnov himself. It was only done because of
pressure from the outside.
732. The signing by President Lucinschi of the memorandum
of May 1997 in Moscow was a mistake. This amounted to recognition of Transdniestria
as a separate State. Thus a document was signed whereby Transdniestria
was recognised as a separate country. One element of that memorandum was
the synchronisation of the withdrawal of the Fourteenth Army and the final
resolution of the conflict. This was done on the initiative of the Transdniestrian
regime and the Russian Federation.
733. In the Joint Control Commission, under the aegis of
the Ministry of Integration, there were always problems because of interventions
by the Transdniestrian side, especially in connection with Bender and their
attempts to get the Moldovan police to withdraw.
The witness had signed documents giving greater local authority
to Transdniestrian authorities within the territory of Moldova but these
did not imply recognition of the regime. For example, documents concerning
customs stamps did not involve official recognition of the illegal regime.
Solutions to practical problems were sought, as the Moldovan authorities
did not want to create an economic blockage. They recognised Transdniestria
as an “area” and needed to coordinate services.
The witness had no problems in going to or from Transdniestria,
he was never stopped or humiliated.
734. The constitutional Moldovan authorities provided support
to the families of the Ilascu group.
As to Mr Ilascu, the witness met him when he went into politics.
After Mr Ilascu was released they met once, in Chisinau. He once telephoned
to the party’s headquarters and left his telephone number, but he had no
more contact with him.
735. Smirnov was released for a number of reasons, in particular
good intentions prompted by good faith, by a desire to obtain what the
Moldovan authorities wanted through negotiations.
20. Alexandru MOSANU
736. From 1990 until February 1993 he was the President
of the Moldovan Parliament, and from 1993 until 2001 he was a Member of
Parliament.
737. The Parliament had evidence that the separatist forces
on the left bank of the Dniester were equipped with various kinds of weapons
and trained by officers of the former Fourteenth Army. The television showed
film on 19 May 1992 of tanks of the former Fourteenth Army flying the flag
of the Russian Federation and taking an open part in the conflict. Following
this direct and open intervention by the Fourteenth Army, the Parliament
adopted a Resolution characterising these actions as open military aggression
against Moldova by the Russian Army. This Resolution was addressed to all
Parliaments and peoples in the world. It described the former Fourteenth
Army as an occupying army in a free, sovereign country. The decision to
adopt this Resolution was taken at a full session of the Parliament of
Moldova.
Guennadi Iakovlev, who was the ideologist of the separatist movement,
said in a newspaper article on 18 June 1992 that the Fourteenth Army and
the Transdniestrian people were united. In the Tiraspolkaya Pravda, on
2 September 1992, Smirnov said that the Transdniestrian Republic survived
only thanks to Russia and the Fourteenth Army.
738. Without the support of the Russian Federation, the
Transdniestrian regime would never have survived. The United States Senator
Larry Pressler came to Moldova in the period May to June. He studied the
problem on the ground and concluded, in a report of 24 June 1992 to the
United States Congress, that the problems then were due to the involvement
of the Fourteenth Army.
739. Towards the end of June 1992 General Lebed, as Commander
of the Fourteenth Army, called the witness on the telephone, when the President
of the State was away, and ordered him not to allow the transfer of certain
military formations of the Moldovan Army from one zone of the country to
another. When the witness replied that he did not know who Mr Lebed was
and that he had to come and explain the purpose of his visit to Moldova,
General Lebed said he would come with tanks to Chisinau.
740. At about the same time, at the end of June 1992, the
supply of electricity to Chisinau from the power station in Cuciurgani,
in Transdniestria, was disconnected. As Moldova had no other alternative
source of energy, the witness went to Minsk to ask the President of the
Supreme Soviet in Belarus for help. Mr Shuskevich, President of the Supreme
Soviet of the Republic of Belarus, telephoned President Yeltsin in front
of the witness and asked him to intervene. By the time the witness arrived
home the electricity had been reconnected.
741. In 1992 the witness did not know about the Ilascu
group; he learned about it later. At that time many people were being killed,
arrested and buried. Mr Ilascu was not an MP then. He was first elected
in 1994 on the list of the Popular Front, and re-elected in 1998.
742. The authorities in Moldova provided transport for
Mrs Ilascu to travel to Tiraspol. Mrs Ilascu was also able to draw the
salary due to Mr Ilascu in his capacity as a member of Parliament.
The witness heard of Mr Ilascu on 5 May 1993, when the so-called
trial opened in Tiraspol. The witness organised a meeting on 6 May in Chisinau
to support his group. He knew from the newspapers of Mr Ilascu’ activities
in Tiraspol, but never discussed with him Order No. 6 or his activities
in Tiraspol.
743. A committee was set up in Parliament to deal with
the problem of the Ilascu group. The authorities in Tiraspol were contacted
and the Moldovans were told that nothing could be done. In fact more effective
action was taken outside Parliament. The Moldovan Parliament raised the
issue at the OSCE meetings and at meetings with foreign States, for example
the United States of America. Mr Snegur also raised this issue in 1999
at a meeting in Berlin of the Inter-parliamentary Union, and as a result
a special resolution concerning Mr Ilascu was adopted.
744. There was no reaction on the part of the Russian authorities
when appeals seeking withdrawal of the Cossacks were made. The witness
telephoned Mr Hasbulatov, the Speaker of the Russian Parliament, but he
showed no interest. The Moldovan Parliament also sent representatives to
the Russian and Ukrainian Parliaments to explain their position. There
was no official response to the Moldovan appeals.
In October 1994 Moldova signed an Agreement with the Russian
Federation on the withdrawal of Russian military units from Moldovan territory.
The Moldovan Parliament ratified that Agreement. The Russian Parliament
has never ratified it; moreover it has been taken off the agenda of the
Russian Parliament.
The Moldovan Parliament supported Yeltsin during the coup in
Moscow. In September 1991 Yeltsin sent Mr Nikolay Medvedev, together with
a group of colleagues, to act as mediators. The Moldovan authorities rejected
this initiative because they considered that the problem was an internal
issue and that it was not up to the Russians to intervene. But Mr Medvedev
went to see the witness and told him that the treaty between Moldova and
Russia would not be ratified until the demands of the MRT were accepted
by Moldova.
745. The reason behind the cease-fire agreement of 21 July
1992 was that if Moldova had not signed that humiliating agreement, the
tanks of the Fourteenth Army would have come to Chisinau. Moldova only
had a volunteer army, a weak army with no trained troops. Many were killed
during the skirmishes. Moldova had no choice but to sign.
746. Moldova did not exercise any control over the Eastern
part of the country. All political actors did what could be done to make
representations in favour of the Ilascu group. But the pressures – political
and economic – from outside, from the Russian Federation, were too strong.
The attitude of the Moldovan authorities at the time was: if Moldova does
not grant passports or customs stamps to the Transdniestrians, it cannot
know how they will behave. Now that the leaders in Tiraspol had been deprived
of their right to travel to the West, their attitude had changed. The Moldova
leadership should have accepted in 1992 the United States proposal to take
part in the peace commission.
21. Witness Y.
747. At the time of giving evidence, the witness was a
senior member of the Liberal Party of Moldova. He was a former member of
the Moldovan Parliament and a former diplomat.
748. The Dniester war started in March 1992. The Parliamentary
Committee had no chairman then and was not therefore involved in debating
events concerning the Dniester River. At the time of the Bender events,
the witness was outside the country. On becoming Chairman of the Committee,
he demanded that the three responsible Ministries submit to the Parliament
information concerning the cause of the events in Bender and the actions
of the Moldovan authorities. The relevant documents were transmitted to
Parliament. According to the information in those documents, there were
good grounds for suspecting that the Fourteenth Army had taken the side
of the separatists during those events. On 20 and 21 June, when the first
detachments of the Moldovan Army arrived in Bender, a platoon of soldiers
being transported in a bus in plain clothes and carrying light arms was
attacked; it was machine-gunned from two sides. The area where the firing
came from belonged to the Fourteenth Army. Twenty Moldovan soldiers were
killed.
When President Snegur and the Prime Minister, Andrei Sangheli,
were in Moscow, they raised the issue of the Ilascu group many times. There
were personal meetings between Yeltsin and Snegur, one to one, in which
the issue was raised by Mr Snegur. The witness was the person responsible
for preparing the press releases relating to these meetings. For example,
on 15 May 1993 the issue of the Ilascu group was raised; it was said that,
for both sides, action would be taken to secure the release of this group
as soon as possible.
However, the talks between Moldova and the Russian Federation
regarding the withdrawal of Russian troops from Moldova did not include
the issue of the Ilascu group. The main problem for the Moldovan side in
the negotiations concerning the withdrawal of Russian troops was that the
Russian side was insisting on a synchronisation of the withdrawal of the
Russian Army with the final resolution of the Transdniestrian problem.
For Moldova, these were two distinct processes, with no link between them.
The Moldovan party was aware that, theoretically speaking, if there were
such a link, there was a risk that the Transdniestrian conflict would not
be solved: any party which might have had an interest in keeping a Russian
military presence in Moldova would then have worked to ensure that the
Transdniestrian issue was never settled. This point of view was conveyed
to the Russian counterpart in the negotiations. However, the Russians insisted
on the synchronisation formula and, unfortunately, this went into the final
document.
Failure to solve the overall problem gave the Russians the excuse
to keep their Army there. And it was they who controlled the possibility
of settling the dispute.
The synchronisation formula was proposed by the representative
of the Russian Ministry of Foreign Affairs. It was expressly included in
the press release at their request. When Moldova proposed that the press
release include mention of both sides being interested in the release of
the Ilascu group, the Russians agreed on condition that the synchronisation
formula also be put in. Subsequently, the Moldovan authorities realised
that they had made a big blunder in accepting the synchronisation formula.
749. The witness was not aware of any cases of the peace-keeping
forces breaching their terms of reference. His main dossier was the Russian
Organisational Group, and the peace-keeping troops were not part of his
brief. The witness learned later that the peace-keeping forces were used
several times by the Russian military without the consent of Chisinau.
750. The Ilascu issue was raised many times by the Moldovan
authorities. In December 1992 negotiations were commenced with the Transdniestrian
side, at a venue outside Tiraspol, and the Ilascu issue was raised by the
Moldovans. Up until March 1993 there were four rounds of negotiations.
Moldova never obtained the permission of the separatist authorities to
meet representatives of the Ilascu group. The issue of medical assistance
was also raised. The question of medical doctors going to Tiraspol from
Chisinau to provide medical treatment for the group was discussed. The
issue was taken up by the Parliamentary Committee. The witness received
instructions from President Snegur to raise the issue in meetings with
Russian officials. In September 1993 the witness therefore raised the issue
with the President of the Supreme Soviet of the Russian Federation (the
Speaker of the Russian Parliament), Mr Husbalatov, who had promised that
Russian Members of Parliament going to Tiraspol would try to obtain information
about the Ilascu group.
751. There where indications of the Russian policy towards
Transdniestria on the Internet sites of various research and other institutions
in Russia. Konstantin Zatulin was the head of one such institution, namely
the Law Academy. On the Internet site of that institution there was a report
outlining different scenarios and plans on how things were to be organised
in Transdniestria. There were other examples, such as the site of the legal
section of the Academy of Sciences where there was a theoretical model
for building Transdniestria into a state. The witness could not tell whether
that model had been developed with the authority of the Academy of Sciences.
752. The witness recalled an ultimatum from the Russian
side, given in 1994 at the United Nations General Assembly when the Moldovan
Representative, for the first time at such a level, alluded to the participation
of the Russian side in the Transdniestrian conflict. The Deputy Foreign
Minister of the Russian Federation had a meeting with the witness and told
him that the Russian side was not happy about this initiative taken by
Chisinau at the United Nations. Russia, he said, would find an “adequate
opportunity” to reject this initiative.
753. The treaty drafted in 1990 was much better for Moldova
than the treaty signed with the Russian Federation in 2001. In 1990 it
was a question of a treaty between two Soviet Republics who were members
of the USSR. The desire of Moldova to obtain its independence was reflected
in that treaty. The later treaty, between two independent countries, contains
some provisions which should have been unacceptable for the Moldovan side.
754. From 1997 to 1998 the witness was adviser on Transdniestrian
issues, including the question of the release of the Ilascu group. This
problem was raised many times. In the witness’s view, much more could have
been done, more efficiently, than the efforts that were actually made.
The witness’s plan for the settlement of the Transdniestrian problem was
rejected by the then Moldovan authorities, and he was dismissed as the
principal adviser in charge of Transdniestria because his plan was disclosed.
755. The Russian authorities were unfortunately providing
support to the illegal Transdniestrian regime in Tiraspol. This included
economic support. For a number of years natural gas had been available
to the public in Transdniestria for half the price charged to people living
in other parts of the Moldovan Republic. As from 1 February 2003, the price
had doubled in Transdniestria. Before that, many people in Transdniestria
said they did not wish to rejoin the Moldovan Republic because, if they
did so, they would be paying much more for gas. Transdniestria has a 750-million-dollar
debt to Russia for natural gas. This debt will be cancelled if Russia receives
shares in national enterprises in Transdniestria. Consequently, part of
the population of Moldova is indebted to Russia.
756. On 1 April 1992 President Yeltsin issued a decree
ordering the transfer of the Fourteenth Army under Russian jurisdiction.
In so doing, he breached the national jurisdiction of Moldova and Moldovan
sovereignty. This is because earlier, in January, President Snegur had
issued a decree that all units of the Fourteenth Army stationed on Moldovan
Territory were to be transferred to Moldovan jurisdiction. President Yeltsin
issued his decree without any consultation whatsoever of the Moldovan Government.
This was a problem still to be settled.
757. The 200,000 tons of Fourteenth Army military equipment
remaining in Transdniestria should belong to Moldova because of the decree
of President Snegur. Or perhaps it should be administered and controlled
by the OSCE. There would be no problem if this military equipment were
to pass under international control. The problem had been that, to date,
Russia had exercised control unilaterally.
758. Smirnov was a citizen of the Russian Federation. This
was therefore a problem for Russia to solve, as he was one of their citizens.
President Voronin had said to the Russians that he, as President of Moldova,
would be happy if Russia were to take Smirnov and place him in a Moscow
suburb.
22. Andrei SANGHELI
759. The witness became Prime Minister in July 1992. The
armed conflict occurred before then. At the time of giving evidence, he
was working for a French firm as Director General. The witness had held
no political office after 1997.
760. Although there was no proof that the Fourteenth Army
was involved in the fighting in 1992, arms, ammunition and equipment of
the Fourteenth Army were used by the separatist forces. The ammunition
and armoured vehicles that the Tiraspol rebels used in all their battles
and clashes with the constitutional Moldovan forces came from the reserves
of the Fourteenth Army.
761. The problem of the Ilascu group was on the agenda
at every meeting that Moldova had on Transdniestria. Moldova tried to do
all that it could, morally and materially. The success of the present Government
was due to what had been done before. But the circumstances at the time
meant that Moldova had no other option but negotiations. The conflict in
1992 was a tragedy for the country.
The release of the Ilascu group was a political problem. The
Transdniestrian regime was keeping the remaining applicants in prison as
a bargaining chip. They wanted to derive benefit from any decision to release
the prisoners. Moldova had done all that it could. The constitutional authorities
of Moldova were not responsible for what had happened to the Ilascu group.
The families of the applicants approached the authorities regularly, and
they obtained from the Moldovan authorities political, medical and other
support.
762. Concerning the financial support allegedly accorded
to the rebel regime in Tiraspol by Russia, there were no official documents,
but there was information that could be gleaned from speeches by Russians
visiting Tiraspol. Then there were the energy debts. The gas had been given
to the Transdniestrians free of charge by Russia. This could be considered
economic assistance. In the negotiations with Russia in 1992, the witness
participated on economic issues. The main discussion centred on energy
supply and Russian markets for Moldovan products such as wood and coal,
as well as credit facilities. Gas was to be supplied at a lower price to
Transdniestria than to Moldova. When the witness was Prime Minister the
company supplying gas was a State entity. After it was privatised, the
situation became worse for the Moldovan people. Today it was a joint-stock
company, but the State had the largest shareholding. Neither the Moldovan
nor the Transdniestrian economy could function without Russian gas.
763. In 1993 the witness discussed this debt issue with
the Russian Government and also with the Transdniestrian authorities. They
agreed to divide the debt in two. The witness did not know whether the
Transdniestrians paid their part, but thought that they did not.
23. Witness Z.
764. The witness was a former minister of Moldova.
765. The witness participated in all the relevant negotiations.
He therefore had information about the transfer of military equipment from
the Fourteenth Army and the ROG to the separatist forces. Before the war
broke out there had been a massive transfer of munitions to the separatists.
This started with a decision of the Supreme Soviet to set up a paramilitary
force to ensure order.
At the time of the referendum about joining the Soviet Union
in 1991, and continuing until March 1992, General Iakovlev, former Commander
of the Fourteenth Army, started to transfer weapons and munitions, and
this coincided with the arrival of the Cossacks. This transfer of munitions
was made in particular to the Transdniestrian Guard, which became the Ministry
of Defence of Transdniestria. All units, including the Cossacks, were equipped
with automatic weapons, machine guns, armoured cars, and so on. An engineer’s
battalion from Parcani openly joined the Transdniestrian side. Eighteen
T-74 tanks were given as a gift to the Transdniestrian side.
The witness stated that he was in possession of a great deal
of information on the quantity of arms actually transferred. After the
war the process continued. This was done through resolutions of the Russian
and Transdniestrian Governments. The Russian Prosecutor General inspected
the Russian Army.
The witness pointed out that there was archive evidence, in the
form of television film, which showed clearly that the main tanks that
took part in the assaults were flying Russian flags. Some of these tanks
were indeed flying two flags, the Transdniestrian as well as the Russian
flag.
766. After the armed conflict, there was an exchange of
prisoners. The Dubasari hostages, i.e. 30 policemen captured by the Transdniestrian
forces, were kept for about a month. Moldova exchanged them for General
Iakovlev. Such exchanges often took place. Moldova exchanged those who
had disturbed order and the Transdnistrians exchanged those whom they had
taken prisoner. The witness had tried to discuss the possibility of exchanging
the Ilascu group. The Transdniestrians responded that the members of the
Ilascu group were not simple participants in the conflict but were terrorists
and that, therefore, they could not be exchanged. Moldova had no one comparable
to exchange with them. Ilascu was seen as a fighter against separatism.
Transdniestria needed to justify its existence. This was perhaps the reason
for their not wishing to exchange him or the other applicants.
It was never intended to include the Ilascu group in an operation
involving the exchange of Iakovlev for the 30 policemen, since Iakovlev’s
release had occurred before Mr Ilascu’s arrest.
The issue of the Ilascu group was nevertheless raised by the
Moldovan authorities in the context of an exchange of prisoners. During
the armed conflict Moldova captured a number of prisoners. But the Moldovan
proposal for an exchange was rejected point blank when the issue of the
Ilascu group was raised. This was so at all levels. Moldova was unable
to secure their release despite all efforts. The separatist regime needed
a justification for the accusation that Moldava was involved in terrorist
acts, and the Ilascu trial provided a smokescreen for their own terrorist
acts committed through mercenaries.
767. The direct negotiations with Mr Smirnov were aimed
at the implementation of various decisions taken by Parliament and the
Government regarding the settlement of the conflict. These negotiations
took place with General Creanga and concerned, for example the withdrawal
of military formations. That was in March 1992. Then, on 21 July 1992,
there was the Moldovan/Russian Agreement on the settlement of the Transdniestrian
conflict. The witness was included in the discussions leading to the solution
of conflict at the local level.
768. The relations between Moldova and Transdniestria were
governed by the Moldovan/Russian treaty of 21 July 1992.
The Control Commission was initially composed of a Russian delegation,
a Moldovan delegation and a Transdniestrian delegation. Later they were
joined by delegations from the OSCE and the Ukraine. The Control Commission
was intended to deal with all the problems arising from the conflict –
for example compensation for damage, withdrawal of troops and so on. Some
problems were solved. Later, because of Russia’s inertia and different
strategy, the Russian military forces stayed on. Where there used to be
a Russian peace-keeping force, now there were Russian military forces.
And, as the OSCE had confirmed, the Transdniestrians now produced missiles
and military equipment.
769. The separatist regime could not exist without Russian
support. It was not ethnic, religious or even internal political reasons
that prompted this conflict. It was dictated by external reasons. It was
designed to split Moldova because Moldova was not willing to sign a treaty
to join the Soviet Union. Within a few months, the Transdniestrian separatists
liquidated the constitutional prosecution and law-enforcement bodies –
the prosecutors’ offices, the police and the rest. They could not have
done this without the support of the Fourteenth Army. Previously the left
and right banks of the Dniester lived in peace. This conflict, this splitting
of the left and right banks, was provoked by Russia for political reasons
of its own.
770. This was not an ethnic conflict. Guslyakov was the
General in command of the Bender police station. He ensured law and order
there on behalf of the constitutional Moldovan order. He was Russian-speaking.
He did all that he could to maintain order, for as long as he could. He
subsequently became a Deputy Minister in Moldova.
771. Moldova was na?ve when signing documents with the
Transdniestrians. Moldova was not ready for the war that broke out on 19
June when the police station in Bender was surrounded. Kostenko attacked
Dubasari on 16 June. A decision was taken on the Moldovan side to send
Special Forces to aid the police. After the town of Bender was free of
Kostenko’s gangs, the Moldovan soldiers, who did not know where to disperse,
came to the citadel where they were taken prisoner and some of them shot.
The Russian Army, which was occupying the citadel and controlling that
area, was involved in this. When they freed the bridge, the Moldovans did
not fire on the Russian forces, but Russian tanks flying the Russian flag
fired on them.
772. Iakovlev was arrested by the Moldovan security service.
There was enough evidence of his having helped to arm the separatists.
It is not true that he was freed because there was not enough evidence
against him.
773. General Lebed, who was the Commander of the Russian
Operational Group, was elected to the Transdniestrian Parliament in 1993.
Moldova was indignant about his political support for the separatists.
But the Russian Duma had quite clearly stated its position on this. Only
later did General Lebed himself come to understand what kind of regime
he stood for. He said that it was a criminal regime.
774. Paramilitary forces from Transdniestria took part
in the war in Abkhasia. A Dolphin force detachment belonging to the Transdniestrians
took an active part in the operations in Abkhasia. This was confirmed by
Antiufeev’s colleague from OMON, Goncharenko Matveev, Deputy Minister of
Security of the Tiraspol regime. Goncharenko was one of the commanders
of the Russian Special Forces operating in the Baltic countries. He took
part in the operation in Riga. He then came to Transdniestria with Shevtsov/Antiufeev,
and was responsible for the formation of the Transdniestrian forces.
Goncharenko requested that people who had fought against the
legal, constitutional forces of Georgia be decorated. These were similar
conflicts involving separatist, Russian-speaking rebels, supported by Soviet
and later Russian troops. Russia had a record of being responsible for
providing military support to these illegal paramilitary forces.
775. Moldova had no regular forces when the conflict broke
out. The police force bore the brunt, together with volunteer units. The
forces in the conflict were unequal. There was a well-equipped army on
one side, police and armed citizens on the other. Moldova could not survive.
Russia provided peace-keeping troops but imposed certain conditions.
The Russian/Moldovan Agreement was drafted in Moscow and Moldova was not
able to introduce anything important, as it had wished, for instance, on
the notion of state independence, sovereignty, etc. This Agreement was
only a military tool for a certain time, but three months later, in September
1992, Moldova stated that this Agreement had been implemented and that
there was a need to organise further negotiations leading to other conventions
that would ensure peace.
24. Anatol PLUGARU
776. The witness was the Minister of National Security
between August 1991 and July 1992. Before that, he was a colonel and was
appointed head of the KGB in Moldova at the time when the Soviet Union
was breaking up in August 1991. Before that, he was a parliamentarian,
a member of the Supreme Soviet. From July 1992 to September 1993 he served
as Deputy Minister of Foreign Affairs. Thereafter he did not work in Government.
At the time of giving evidence he was a free-lance legal expert and journalist.
777. The witness knew Mr Ilascu because of his job. He
came into contact with him when Moldova was forced to mobilise its citizens
because of the emergence of the illegal regime in Transdniestria. This
was in March 1991. A resistance movement, initially uncontrolled, sprang
up in Transdniestria. Tens of thousands of citizens were asking for arms
in order to defend their country. Moldova did not have an army. The Ministries
of Defence, the Interior and Security were meant to mobilise people who
had received some military training. Mr Ilascu fell into that category.
778. The witness did not know whether the Russian special
services, the Alpha Group, were involved in the interrogation of Ilascu.
779. The witness considered that Mr Ilascu was a prisoner
of war falling under the Geneva Conventions of 1949 and their Protocols.
A number of attempts had been made to exchange Mr Ilascu and his colleagues
but Moldova had no prisoners they could offer in exchange.
780. Moreover, Moldova knew who was behind all that. The
Fourteenth Army wanted to cross the river. “A Cossack is a Cossack even
in Bucharest,” is what could be heard at the time. Moldova could not afford
to use force, although it did carry out some operations, for example the
one relating to Iakovlev. General Iakovlev was arrested by the secret service
of Moldova. Mr Ilascu was not involved in this. Iakovlev was detained because
he had supplied arms to the separatist rebels. He could only be kept in
custody for a limited period, but the investigators could not collect enough
evidence to bring him to trial. General Stolyrov, the deputy to Marshal
Shaposhnikov, Commander in Chief of the CIS Forces, came from Moscow –
he was the Deputy Head of the Russian secret service – to ask for Iakovlev’s
release. As soon as it was clear that there was insufficient evidence to
prosecute him, the Moldovan authorities came up with the idea of exchanging
him and the witness discussed the matter with Stolyrov. In the end, General
Iakovlev was exchanged for 30 police officers detained in Dubasari.
781. The Ministry of the Interior did talk to the Transdniestrian
authorities. Many attempts were made to have Mr Ilascu and the other applicants
released. But all proposals were rejected because the Ilascu case represented
a means of effective leverage for the Transdniestrians, a tool which they
could use to humiliate Moldova. The regime was supported by Russia and
the Ukraine. More energetic efforts to get Mr Ilascu and his colleagues
released would have led to greater tension. The Transdniestrian regime
was able to exercise pressure on the constitutional Moldovan authorities
through the Ilascu case, in order to obtain recognition.
782. The separatist regime de facto, was outside the legal
control of the constitutional Moldovan authorities. The Moldovan legal
authorities had been effectively destroyed in Transdniestria. The Transdniestrian
regime was armed with weapons from the stocks of the Fourteenth Army. Iakovlev
had armed these paramilitary forces. Lebed had pursued a policy of “active
neutrality”. Moldova had no access there. On taking up his command, General
Lebed should have reported to President Snegur, as the official Head of
the State where the Fourteenth Army was stationed. But General Lebed had
ignored these elementary rules. When he arrived, he did not notify the
President of Moldova; and there was no notification either from the Kremlin.
783. There was the “Balkan Arch Plan” with the following
scenario : if Moldova had not stopped the armed conflict, it would have
spilled over into Romania. Presidents Yeltsin and Putin had made statements
in favour of Moldovan sovereignty, but many members of the State Duma,
including Mr Rutskoi, had gone to Transdniestria and supported the Transdniestrian
separatists. They had interfered in Moldova’s internal affairs in a brazen
manner. If a section of the Russian Government, the official Government,
had cooperated, the armed conflict could have been avoided.
784. Russia had at the time great problems with the huge
army that it had stationed in Moldova. Many soldiers did not want to go
back to Russia. No preparations had been made to receive them there. The
Russian military in Transdniestria were providing military support to the
Transdniestrian regime. Tanks of the Russian Army took part in the armed
conflict; this was broadcast on the television. Other than those of the
Fourteenth Army, there was not a single tank in Moldova at the time.
785. The cease-fire agreement with the Russians was signed
in July 1992. The witness was dismissed five days before that, under pressure
from the Russians.
786. The witness stated that he had never met Mr Gorbov.
Earlier, before the armed conflict, he was dismissed from the Moldovan
Ministry of the Interior. When the conflict broke out, he offered his services
to the Tiraspol regime because he could not agree with the Chisinau authorities.
He was given responsibility for dealing with the Ilascu group. He prepared
the investigation, together with the Commander of the Fourteenth Army and
Colonel Bergman. Then the relations between him and the Tiraspol regime
soured. He might have gone to Moscow.
The witness knew Olga Capat?na, he knew that she was a civil
activist. She was involved in the League of Wives and Mothers of Soldiers
who died in Afghanistan. The witness had no information about her involvement
as an intelligence agent during the conflict. But anyway he did not know
who were the individual agents working in the field.
787. The witness met Mr Ilascu in his capacity as head
of the ex-Soviet Union’s KGB. Mr Ilascu was mobilised by order of the KGB
of Moldova. He was not an agent of the KGB as such. He was mobilised because
he had experience of gathering information. After the KGB structure was
changed, three Ministries were involved: Defence, the Interior and Security.
Moldova was fighting enemies who had penetrated the country, groups who
had infiltrated the country, that is, in Tiraspol, which was part of the
Republic of Moldova.
788. The Moldovan Ministry of Security did not receive
any support from outside. It is true that Romania provided Moldova with
some arms, but these were very old weapons which did not work.
But support was given by Russia to ethnic Russians in Transdniestria.
The Cossacks came to Transdniestria because they had been let out of prison.
There were long convoys of weapons being transported to Transdniestria.
The Moldovan Ministry of Security sent agents to work in Transdniestria
and the Fourteenth Army. That was quite normal, having regard to the situation.
At the time, Moldova had documentary evidence, received through agents,
to show that after April 1992 the Fourteenth Army was helping the rebels
with arms and in other ways. General Netkachev admitted that Transdniestrians
were using lorries to get access to the armament stores through minefields.
25. Nicolai PETRICA
789. The witness was a graduate of a tank academy. On 17
April 1992 he left the Soviet Army and joined the Moldovan Army until June
1993. Before that, in Afghanistan, he was Deputy Head of the Military School.
From 1964 until 1974 he had served in Chisinau, and after that, he left
the Fourteenth Army and went to Moscow to serve in the Soviet Army. At
the time of giving evidence, he was the holder of the Military Chair in
the Technical University of Moldova.
790. He commanded the Moldovan forces in the Dubasari fighting.
It was Russian Army soldiers that shot at the Moldovans. They were using
152 mm shells, which the separatists did not have at that time. They were
shooting from the Cocieri-Dubasari line. Negotiations took place on 24
May 1992 with the Colonel who was commanding the Transdniestrian paramilitary
forces. There were no representatives of the Fourteenth Army present. But,
had it not been for the presence of Russian forces in Transdniestria, the
separatist forces could not have been armed. On 19 May the separatists
had received thirteen T-64 tanks from the Fourteenth Army. They used other
military equipment, such as artillery, which must have come from the same
source. The witness did not actually see the Fourteenth Army or their soldiers.
791. The church in Golicani was destroyed by a 152 mm shell;
shells of that calibre also fell in the village of Cruglic. In later discussions
that the witness had with commanders from the Fourteenth Army, they had
confirmed that there had been cases when artillery equipment was used against
the right-bank forces.
General Lebed openly said that he was pursuing a policy of “active
defence”. They, the Russian soldiers, fired shots towards the town of Tighina
(Bender).
792. Between 21 July and 16 October 1992, when the witness
was the commander of the Moldovan peace-keeping forces, he was not informed
about Russian peace-keeping forces being involved on the rebel side. On
the contrary, Moldova and Russia together were able to secure peace in
that zone. The witness collaborated very well with the Russian General,
and they kept full control of the situation.
793. In May 1992 sixteen tanks were handed over to the
Transdniestrian Guards. Of them, thirteen tanks went to the Kacheevskii
bridge-head. But on 24 May the witness met his opposite number, whom he
knew as a comrade from the Far East. They agreed to maintain their positions,
but without engaging in any fire. But on 19 June the tragedy happened.
Lebed was using his troops and tanks. Presumably he had his orders, because
no General would act in that way without instructions from his political
superiors. Bender was destroyed by the artillery and the tanks of the Fourteenth
Army, not by the Moldovan side. The tanks used were tanks of the Fourteenth
Army, of the 59th Division. But Lebed had also disarmed the Kostenko brigade,
a brigade of Transdniestrian rebels. In other words, he took the decision
to stop the fighting.
It was not possible for the Transdniestrians to seize tanks.
Lebed was permanently there. The order came from Moscow and Lebed had to
implement it.
794. On 21 July 1992 Russia took a decision to settle the
Transdniestrian problem and that decision included something about the
release of Ilascu and his group. But perhaps Moldova was not persistent
enough. Moldova took up the issue in the Joint Control Commission set up
under the Moldovan/Russian Agreement of July 1992. Mr Catana was there.
26. Vasile RUSU
795. At the time of giving evidence, the witness was the
Prosecutor General of Moldova. Before that he was a lawyer and a Member
of Parliament, on the Communist Party list.
796. The criminal investigation opened in December 1993
against the judges and prosecutors involved in the Ilascu trial was not
taken far because the necessary inquiries would have had to have been undertaken
on the eastern, left bank of the Dniester, and that was under the control
of the separatist regime. The legitimate authorities of Moldova had no
access to the eastern part of the Republic. Likewise, in relation to the
complaints filed in 1992 under Article 82 of the Criminal Code of Moldova
in connection with the murder of the citizen Gusar, the Moldovan authorities
were regrettably not in a position to carry out any investigation in the
territory of Transdniestria.
In December 2002 the investigation was suspended. A criminal
investigation was also opened in 2000 in respect of the governor of Hlinaia
Prison for unlawful deprivation of liberty, but that investigation had
also been suspended because it was impossible to carry out any real investigatory
work.
The witness was of the opinion that the proceedings instituted
against the judges and prosecutors under Articles 190 and 192 of the Criminal
Code were incorrect. It would have been more appropriate to investigate
under Articles 116 § 2 and 207 for usurpation of the identity of an official
person and unlawful imprisonment, as was done in regard to the investigation
launched against the governor of Hlinaia Prison.
797. An exchange of prisoners involving the Ilascu group
was proposed to the Transdniestrian authorities, but the proposal was rejected.
In the witness’s period of office there had been no exchange of convicted
prisoners between Moldova and the regime in Tiraspol.
The witness did not know the Prosecutor General of Transdniestria,
he had never had any telephone contact with him.
798. If the judges and prosecutors involved in the Ilascu
trial or the governor of Hlinaia Prison chose to come to Chisinau, as they
could, they would be questioned and the required procedure would be carried
out. It would not be necessary to detain them and it could not be known
whether, as a result of any interrogation, they would actually be charged
with deliberate usurpation of public office - that would be prejudging
the investigation.
The witness was not aware that the offences with which the prosecutors
and judges were charged (under Articles 116 and 207 of the Criminal Code)
were considered to be time-barred according to the Public Prosecutor Iuga’s
decision of August 2000.
The witness was of the opinion that if the Tiraspol prosecutors
or judges involved in the Ilascu trial travelled to the right bank of the
Dniester, a criminal investigation under Article 207 of the Criminal Code
could be launched against them despite possible problems of prescription.
Persons can be convicted in absentia if there is sufficient evidence
to confirm their guilt. If these persons went abroad, for example, to Russia,
then it would be possible to ask the Russian authorities to extradite them
to Moldova. Colonel Golovachev, the Governor of Hlinaia Prison, was informed
of the opening of the investigation against him and summoned to Chisinau
through the Prosecutor’s Office in Tiraspol.
799. As Prosecutor General, the witness was not allowed
to travel to the left bank. At the time of giving evidence, his Office
had no control over events on the other side of the river. The witness
preferred not to answer the question as to whether he was able to work
with his colleagues on the other side of the Dniester River.
800. The witness stated that if the file came before him
as Prosecutor General of Moldova, he would initiate an investigation into
the death of the two victims of the alleged terrorist acts of the Ilascu
group – Gusar and Strapenko – despite the fact that they were citizens
of the Russian Federation.
The witness had not had the opportunity to question Mr Ilascu
when he came to Chisinau after his release, on 5 May 2001, since he had
taken up his duties as Prosecutor General only on 18 May and, on 10 May
2001, Mr Ilascu had received the highest order of Romania, “The Star of
Romania”.
27. Vasile STURZA
801. From 2000 until 1 January 2003 he was Chairman of
the Commission for negotiations with Transdniestria. As its name suggested,
this Commission had the task of negotiating the status of Transdniestria
and related matters. During the period 1991 to 1992 he was the First Deputy
of the Prosecutor General of Moldova, having taken up that office in September
1990 and remaining in it until April 1994. From April 1994 until May 1998
he was Minister of Justice. From May 1998 until January 2001 he was again
the First Deputy of the Prosecutor General.
802. The Commission of which the witness was Chairman was
dealing essentially with the political problems relating to the status
of Transdniestria and its main goal was to settle the latter’s legal status.
There was another Commission dealing with the social and economic problems
arising from the Transdniestrian situation. The economic, cultural and
social aspects were handled in parallel in another commission.
803. In the context of the negotiations on the status of
Transdniestria there were discussions about the legality of official acts
accomplished by the Transdniestrian authorities, but the Moldovan side
had always insisted on the unconstitutionality of acts carried out by the
Transdniestrian authorities. Between 2001 and 2003 many draft texts for
the status of Transdniestria were discussed during the negotiations, some
of which contained provisions concerning what was to be done about decisions
of the Transdniestrian authorities, for example criminal sentences imposed
and civil court judgments delivered in the previous ten years.
804. Concerning the possible release of Ilascu and his
group, the Prosecutor General’s Office asked the Prosecutor’s Office in
Transdniestria for them to allow the Ilascu case to be investigated by
the constitutional authorities of Moldova. The witness discussed the matter
several times with Prosecutor Luki?, who was supervising this investigation
in the period 1992 to 1993. The problem was that whatever the prosecuting
authorities in Transdniestria did about the Ilascu case was unconstitutional
and could not be executed in Moldova. Moldova proposed therefore that prosecutors
from other countries be invited to investigate the case, for example representatives
of the former USSR such as the Ukraine, Belarus and the Russian Federation.
The witness personally went to Minsk to discuss the matter with the Prosecutor
General of Belarus, who agreed to investigate the case. But the Transdniestrians
refused. He also had a meeting with Mrs Ivanova, who was in charge of the
trial and tried to convince the Transdniestrians that investigation by
an unconstitutional body would cause problems for everybody. Again they
refused.
805. In 1994, while the witness was in the Prosecutor General’s
Office, he was sent by President Snegur to Transdniestria to seek the release
of Mr Ilascu and the other applicants. Later, in 1996, he was allowed by
Mr Smirnov to have a first meeting in person with Ilascu in Hlinaia Prison.
The witness was the first to meet him in this way. The witness had a personal
discussion with Smirnov, on the instructions of President Snegur, to request
the release of Ilascu and the others. It was a complex and sensitive matter.
A lot of politics were involved in the case. He had many discussions with
Mrs Ivanova, the judge who tried the case as President of the so-called
Supreme Court of Transdniestria, with Mr Luki?, the prosecutor in the case,
with the Minister of the Interior of the Transdniestrian regime, and with
the President of the Supreme Soviet of Transdniestria. At the beginning
they agreed to examine the case with a view to the release of all the prisoners
who had been tried, but they required that the procedure laid down in Transdniestria
be followed.
806. There was a Decree issued by Smirnov in March 1993
whereby a Commission on Pardons was created. A Regulation on the activity
of this Commission was brought out. In order to observe the proper procedure,
therefore, one had to convince the members of this Commission to release
the detainees in question. The witness therefore had meetings with the
Chairman of the Commission. Throughout 1996, from April until the autumn,
the witness had many discussions with the Commission, which had the power
to grant pardons to all persons tried in Transdniestria. It was complicated,
because one had to convince each individual member of the Commission. The
last meeting that the witness had was with the representatives of all the
services, that is to say, the Prosecutor’s Office, the Supreme Court and
the Supreme Soviet. All attended. Their conclusion was that the release
of the Ilascu group could go ahead if confirmed by the decision of Mr Smirnov,
who refused however.
The discussions concerning release continued after 1996. Smirnov
would say “yes”, and then “no”. The final decision was taken in spring
2001. Previously, on 16 May 2000 at one meeting between President Lucinschi
and Smirnov, the Moldovans again asked Smirnov about Mr Ilascu. Smirnov
said he could not agree on a release, pure and simple, but could agree
to the re-examination of the case by a court of a different State. That
led to a number of subsequent initiatives. For example, Moldova asked Ambassador
Hill, Head of the OSCE Mission, to use the good offices of the OSCE to
raise the possibility of referring the Ilascu case to a court of a different
State. Following an address made by Ambassador Hill in Vienna, Switzerland,
Poland and Hungary agreed to the possibility of the Ilascu case being tried
in one of their courts. Ambassador Hill discussed the possibility with
the representatives of Switzerland. Discussions were initiated by the witness
himself with the Ambassadors of Poland and Hungary in Chisinau. They even
went into discussing the technical details, such as the number of judges
who should sit, which code of criminal procedure should be applied, who
should be the prosecutor, who should support the Moldovan participants,
and so on.
The Moldovan authorities continued at the same time to discuss
with the Transdniestrian authorities the unconditional release of Ilascu
and his group. Mr Voronin and Mr Hill made separate appeals. There was
a request for a trial of the case by the Polish courts. These appeals were
sent by the witness to the Transdniestrian authorities. Finally, on 12
April 2001, the Transdniestrian authorities agreed to proceed with an unconditional
release, and not one mediated through a foreign court. Discussions took
place as to the technical details of the release. On 16 April the witness
went to Tiraspol by car in order to bring back the detainees to Chisinau,
but the Transdniestrians refused even though there was an agreement. The
witness met all the members of the group in the prison in Tiraspol, together
with a representative of the OSCE. On this occasion the Transdniestrians
were saying that they were ready to release all the detainees.
When, on 5 May 2001, only Mr Ilascu was released, and not all
the applicants, this was a big surprise for the Moldovans. They received
a letter from Smirnov informing them of the release.
As to why the Transdniestrians refused to release them all, Moldova
had to negotiate to settle the problem of the Transdniestrian region. The
Moldovan authorities could not refuse to talk to unconstitutional bodies.
At the same time a criminal investigation was opened against the judicial
officials who had taken part in the illegal trial in Transdniestria against
the Ilascu group. But at that time, the Moldovans were convinced that all
the applicants would be released.
Following the failure to release the others, this issue was raised
at all meetings with the Transdniestrians when the witness headed this
Commission. There was another appeal signed by the witness and by the then
Minister of Justice, Mr Morei.
807. After May 2001 there was no further meeting with Smirnov
on this topic. They avoided any such meetings. The witness discussed the
issue of the applicants’ release with his Tiraspol counterpart in the Commission
for negotiations on Transdniestria.
808. As to the order for the investigation of judicial
officials who had taken part in the illegal trial in Transdniestra, this
was quashed on 16 August 2000 by Mr Didic, Deputy to the Prosecutor General.
The witness had a discussion with President Snegur at the relevant
time on this issue, and then a lunch with the Transdniestrian authorities
who were constantly asking for this criminal investigation to be annulled.
It was discussed at the level of the leadership of the prosecuting authorities
on both sides. It was stipulated as one of the conditions for the settlement
of the status issue in general. But the legal and political considerations
were different and separate. The witness was of the opinion that what the
Transdniestrian prosecutors and judges had done was unconstitutional and
that they should be brought to justice. The status of Transdniestria is
still the subject of discussion on the basis of a draft instrument. This
discussion embraced the general question of criminal liability not just
that of the persons involved in the Ilascu case.
The Moldovan authorities were aware of the request to resolve
the problematic situation of the people involved in creating the conflict.
The witness therefore found it difficult to say whether the decision of
16 August 2000 was a legal decision or one linked to a political decision.
The draft instrument on status covered precisely this issue.
809. The withdrawal from Transdniestria of Russian troops
was never raised in the status-negotiation Commission. This issue was addressed
in a different context. In the list of guarantees on the status of Transdniestria,
one related to military issues. The Ministries of Foreign Affairs and Defence
discussed the question of the withdrawal of Russian troops within the framework
of the bilateral relations between Moldova and Russia. Although the link
between the resolution of the status of Transdniestria and the withdrawal
of Russian troops was raised by the Transdniestrian side, the issue was
discussed in a separate context – namely the chapter in the draft instrument
which dealt with guarantees for the status of Transdniestria.
In Transdniestria thousands of criminal cases had been tried.
There was a lot of politics bound up with the Ilascu case. The Transdniestrians
had always said it was not a political case but an ordinary case of citizens
who had committed murders and must therefore serve their sentences. Moldova
has a different angle: if these people have committed illegal acts, then
the case should be investigated and they should be tried by constitutional
bodies. After the trial, the proceedings in the Ilascu case were examined
by Professor Rzeplinski from Poland. In the light of his report, the Transdniestrians
must have realised that they had made many procedural mistakes in conducting
the prosecution and trial. But it was important for them to show that they
exist as a State.
810. The witness met the applicants, and also their families
on many occasions, in connection with various issues such as medical care,
material support, conditions of detention. All their requests had been
satisfied in so far as they came within the competence of the constitutional
Moldovan authorities. Family visits to the prison had been facilitated
by the Moldovan authorities with the provision of transport. Health care
had been provided through the Moldovan Ministry of Health. Mr Sturza’s
Commission saw to it that they were sent what they requested, such as newspapers
and financial support for the family.
811. The Ministry of Justice carried out preparatory work
for Moldova’s entry as a member of the Council of Europe. The main problem
was the question of the observance of human rights. It was clear that the
legal Moldovan authorities could not ensure observance of human rights
in this region of Transdniestria. This led to the controversial reservation
to the European Convention on Human Rights, which was approved by the Parliament
of Moldova in September 1997. The text of this reservation was discussed
and coordinated, word by word, with the Council of Europe. Moldova liaised
with officials from Strasbourg. The witness considered the fact that the
other detainees in the Ilascu group had not yet been released to be proof
that the legal Moldovan authorities were not able to ensure observance
of human rights in the region.
812. The Moldovan authorities have never recognised the
judicial decisions and official acts of the Transdniestrian region; they
consider them unconstitutional. In order to prevent the Transdniestrian
people from suffering from this situation after the events of 1990, Moldovan
courts for areas in the Transdniestrian region have been established on
the right bank of the river. In the instances mentioned in the question
(of measures in family-law matters adopted by Transdniestrian courts and
authorities), citizens are forced to go to the constitutional (i.e. legal)
courts of Moldova to have their case re-examined after a decision by the
Transdniestrian courts or authorities. The witness had many discussions
in order to resolve this problem. The Transdniestrians think that the problem
should be settled in a different way, so that the policy adopted in relation
to such decisions does not adversely affect the Transdniestrian population.
The problem concerns not only registry offices for marriage but also police
matters, notaries’ offices, and so on. For example, if Transdniestrian
people wish to go to the Ukraine or Russia, they have to go the right bank
of the river in order to get travel documents.
This whole problem is the subject of on-going discussions. Ten
thousand civil cases have already been decided by the Transdniestrian courts.
It is necessary to settle what will happen in those cases. It would be
an unrealistic solution for them all to be reviewed afterwards. However,
if a citizen living in Transdniestria does not agree with the decision
taken by the Transdniestrian court, he or she should have the right to
appeal to the constitutional Moldovan authorities in order to have the
case reviewed.
813. In any instance where a citizen whose case has been
decided in Transdniestria goes to the Supreme Court of Moldova, he or she
will obtain a review. And the Supreme Court will declare the Transdniestrian
decision unconstitutional. There have been many such cases over the years.
Civil cases are reviewed, so as to ensure that the rights of the individual
are preserved.
814. When the Moldovan authorities heard of the deaths
of Gusar and Ostapenko, they were ready to investigate and to find out
who were the culprits. They entered into contact with the Tiraspol Prosecutor’s
Office in order to find out who was to blame for the murders. But the Moldovan
authorities were met with a blank wall.
815. The negotiations about the technical details of the
Ilascu group’s release started on 12 April 2001. On 16 April 2001 the witness
personally went to Tiraspol in order to bring them all back to Chisinau.
When he met with the refusal of the Transdniestrian authorities, he had
to start work all over again. On 5 May members of the Transdniestrian secret
services brought Ilascu to the secret services in Chisinau, not to the
prosecution authorities. It is difficult to say whether Mr Ilascu could
have been interrogated by the prosecuting authorities upon his release.
The criminal investigation was still open but Ilascu was a free man, he
left Moldova of his own accord.
Immediately after May 2000 when Smirnov said that he could agree
to the review of the Ilascu case by another country, the Moldovan authorities
contacted Hungary, Poland and Switzerland. Technical discussions with these
countries took place. However, the release of Ilascu in 2001 put an end
to the possibility of having the case as a whole examined by another court
in another country.
816. Every thing done in the Ilascu case and in relation
to the Transdniestrian problem in general, was done in earnest, with the
utmost seriousness, regardless of when the events occurred. The witness
himself studied the case-file several times. Some important studies were
carried out at the instigation of the OSCE. Any preliminary criminal investigation
would be complicated today, eleven years later, but the Moldovan prosecuting
authorities would try their best.
28. Victor VIERU
817. The witness has been the Vice-Minister of Justice
since 2001. Before that he was a lawyer. The witness never dealt with the
Ilascu case. It was never raised in any meeting that he attended.
The witness was indeed a member of the Commission on the negotiation
of status headed by Mr Sturza. However, in meetings in which he participated,
release of the remaining members of the Ilascu group was never raised as
an issue.
818. The witness found, as a lawyer, that the decision
taken by the Prosecutor General’s Office in August 2000 to quash the order
of 1993 opening a criminal investigation against the persons responsible
for the trial of Ilascu and his colleagues was incorrect.
819. The Moldovan authorities have never recognised documents
issued by the unconstitutional authorities of Transdniestria. The witness
was of the view that the protocol of May 2001, signed by Mr Voronin and
Mr Smirnov, was not legally binding. Firstly, the supreme law of the Republic
of Moldova, as laid down by the Constitution, does not include in the category
of legal acts an act such as this political decision. Secondly, it cannot
be deemed to be an international instrument under the terms of the Vienna
Convention on the Law of Treaties of 1969: the right to sign treaties is
available only to States and Transdniestria cannot be so recognised. Thirdly,
any legal act must be published in the Official Gazette. In any event,
documents issued by the constitutional Moldovan authorities are not recognised
in the Eastern part of the country.
29. Andrei STRATAN
820. The witness was the Director of Customs Control from 1999
until 2001. At the time of giving evidence, he was Ambassador, Head of
the Office for the Pact for Stability in South-East Europe at the Ministry
of Foreign Affairs. Prior to 1999, he was Deputy Director at the Customs
Department, attached firstly to the Ministry of Finance and then directly
to the Government.
821. The Moldovan customs authorities have no authority
de facto regarding the transport of goods in the territory of Transdniestria
up to the border of Ukraine, because they have no access to this territory.
Most of the corporate entities in Transdniestria prepare their
customs documents in Tiraspol. When they want export permits, for example
for textiles, they approach the authorities in Chisinau who will issue
the appropriate documents. There are no constraints on corporate entities
in Transdniestria coming to Chisinau for appropriate documents for exports
to third countries. In Transdniestria, however, exports and imports are
carried out without the authorisation of the constitutional Moldovan authorities.
They frequently receive goods imported directly to Tiraspol. Some goods,
such as textiles, can be exported to the European Union only after they
have received a permit from the Moldovan Ministry of the Economy. This
is because there are export quotas. This is not a customs procedure as
such. It is a procedure for obtaining a permit from the Ministry of the
Economy. The Customs Department has no control over this procedure.
Arms exports from Moldova come under the jurisdiction of the
constitutional authorities of Moldova. A Government decision is needed.
In fact, an inter-departmental Committee takes decisions as regards the
export of, or other transactions in regard to, arms. The witness did not
know what the procedure used by the authorities in Tiraspol was.
Arms were exported from Tiraspol via Ukraine directly to other
countries, because Chisinau was unable to exercise control at the Ukrainian
border.
822. The Customs Department was not responsible for the
issue of certificates of origin. That came under the responsibility of
the Chamber of Commerce.
823. Some goods were manufactured partly in Moldova and
partly in Transdniestria, in which case they were transported to and from
Transdniestria. It was natural for left-bank corporate entities to deal
with those on the right bank. The Moldovan authorities had no statistics
on this, as this was considered to be domestic trade.
824. No joint customs posts were ever set up between the
right and left banks of the river. Since 1995 Moldova has been part of
the International Customs Union. Transdniestria is an integral part of
Moldova, but customs control has never been exercised by Moldovan authorities
over services and goods emanating from the left bank region. There has
therefore never been any smuggling, formally speaking.
825. Energy supplies from Russia to Moldova are organised
in accordance with the agreements that were signed before the conflict.
The Customs Department knows the volume of energy imported from Russia
to Moldova. There is a unit in the Customs Department which supervises
the importation of energy supplies. The Customs Department receives official
papers concerning the supply of gas and electricity. But the Moldovan authorities
cannot control what happens on the border between Moldova and Ukraine in
order to record the import volumes for the Transdniestrian segment. There
is an exchange of information between Russian and Moldovan Customs Departments
about gas exports from Russia to Moldova. Moldovagas also supplies a declaration,
which the Department has to verify as correct. There is no customs duty
as such imposed in relation to the importation of natural gas to Moldova
from Russia, only payment for customs procedures and value added tax.
826. The witness did not know whether the transport of
goods, destined for export from Transdniestria direct to another country,
would be registered. The witness never had any such documentation before
him, which suggested, to his mind, that other ways of exporting such goods
had been found and that there was uncontrolled trade between Transdniestria
and third countries, apart from weapons. The Moldovan Customs Department
has a brigade for the investigation of illegal exports. But this brigade
can only operate in territory that is accessible to them and open to their
control. Cross-border trade between Transdniestria and the Ukraine is therefore
not controlled by the Moldovan Customs Department.
827. The witness did not know how it was possible that
on bottles of brandy made in Tiraspol available for sale in Russia the
country bar code on the bottle was that of Russia and not Moldova. He considered
that the question should be put to the custom authorities of the Russian
Federation.
828. The Moldovan Customs Department does not operate any
customs control on the right bank of the Dniester because this is not an
international border. Consequently, the Moldovan authorities do not carry
out any investigations on the matter. It is not a crime to transport goods
from the right to the left bank of the river.
30. General Boris SERGEYEV
829. The witness was born on 17 January 1950 in Orenburg,
Russia. He has been the commander of the ROG since 18 January 2002. Before
that, from 1996, he was Deputy Chief of Staff of the ROG.
830. The mission of the ROG is twofold: Peace-keeping force
(PKF) and units responsible for guarding, and gradually repatriating to
the Russian Federation, the ammunition and property of the former Fourteenth
Army.
831. As to the PKF, there are about 360 persons: two battalions
and an aviation group. The battalions alternate on duty and, when on duty,
they are subordinate only to the Joint Command of the PKF. The Russian
PKF battalions are organisationally dependent on the ROG. These battalions
are located separately from the ROG troops, and have their own command
centre. Other units of the ROG are not involved in the PKF and never were.
The Russian PKF has no tanks. The aviation group is responsible for Tiraspol
airport.
832. The present headquarters of the ROG were formerly
the headquarters of the Fourteenth Army. The overall number of staff in
the ROG was at the time of his giving evidence less than 1,500 persons,
comprising all military units.
833. There is a military airport in Tiraspol. During Soviet
times there was an air division based there. After the collapse of the
Soviet Union in 1991 aviation equipment was divided between Moldova, the
Ukraine and Russia. The Fourteenth Army had only a helicopter squadron
based in Tiraspol. This squadron became a part of the PKF. Today it has
nine helicopters and a logistics back-up service comprising about 180 servicemen.
They are not a part of the ROG, but are subordinate directly to the Russian
Air Force. They are used only for the PKF inspections: they monitor the
security zone.
834. There is very little traffic at Tiraspol airport.
Air space is controlled by Ukrainian and Moldovan air traffic controls:
when an aircraft flies over the territory of Ukraine, air traffic control
is provided by the air traffic control services of Ukraine, and when an
aircraft approaches the territory of Moldova, it is directed by the air
traffic control services of Chisin*u. Therefore, without the permission
of the Moldovan air traffic controllers in Chisinau, the Russian aircrafts
and helicopters could not land and take-off.
As to the security of the airport, the ground used for the landing
and take-off of heavy aircraft and helicopters of the Russian forces is
protected by the Russian forces. The territory of the aerodrome is nevertheless
open, so the Transdniestrians, if they wanted, could interfere. However,
they do not interfere and similarly the Russian forces do not interfere
with the way the Transdniestrians use their part of the airport.
835. The withdrawal of the ROG should have been completed
by the end of 2002. It has now been put back to the end of 2003. At present,
equipment from the warehouses in Kolbasnoye was being transported. 69 trips
were required for the supplies and ammunition, and another 15 for military
equipment. This would take until the end of 2003. The witness stated that
he preferred not to say why the withdrawal had taken so long, as making
a statement on this issue would be beyond his call of duty. The timetable
was fixed by the President and the Ministry of Defence. The witness only
had to implement their decisions.
Withdrawal to Russia was usually done by train and only in exceptional
cases by air. The last time equipment was taken away by air was in 1996
for anti-tank ammunition. Some items were destroyed on the spot, like armoured
vehicles and air-defence complexes. A prototype destruction method for
a given type of combat material is agreed with the OSCE experts, and thereafter
OSCE closely monitors this process. The destruction is performed in a way
that excludes any possible future use or reconstruction. 108 tanks were
destroyed in 2002 and currently air-defence systems were being destroyed.
836. The witness stated that he would contact the Transdniestrian
authorities regarding the withdrawal only if he was directed to do so in
each individual case by his superior authorities. The process is often
hindered by the Transdniestrian authorities, but at present they have undertaken
to cooperate and to let the transport pass. The ROG offered compensation
to the “MRT” for the withdrawal, either by writing off debts or by transferring
non-military assets to them.
837. The OCSE performs inspections both at the places where
the equipment is loaded for transportation, and in Russia where it arrives.
The Moldovan authorities also supervise the process: first through the
OSCE, then when the transport (train) is ordered from Moldova, the Russian
authorities specify the items and quantity to be loaded, and a list of
the load is forwarded to the Moldovan authorities for the crossing of the
Moldovan - Ukrainian border.
838. ROG personnel can only move around if authorisation
is given by the Transdniestrians. The same authorisation is needed for
importing goods and supplies. Express authorisation is also needed from
the Transdniestrian authorities to use railroad and road transportation,
both in and out. The ROG is required to submit notice of every proposed
movement, with details about the vehicle. Otherwise the Transdniestrian
authorities detain or block cars and transport vehicles.
The witness stated that at the time of giving evidence, there
were three vehicles detained illegally by the Transdniestrian authorities.
839. The ROG held no joint exercises with the Transdniestrian
armed forces.
840. Whenever the need arose to contact the Transdniestrian
authorities, the hierarchy in Moscow specifically authorised the witness
to contact someone in the Transdniestrian administration, specifying the
persons and the subjects for discussion.
841. The ROG does not lack military supplies and ammunition
and does not need to bring in any fresh material of that kind. Other supplies
for maintenance purposes (e.g. fuel) come from various places - from the
Ukraine, Poland or directly from Russia. Heavy equipment (such as aircraft
engines) needing repair are sent back to Russia. For this sort of thing
a request is sent to the local authorities, not to the central Moldovan
authorities. The ROG buys some food locally, in Transdniestria. Whatever
is brought in by air, the Moldovan officers from the peace-keeping forces
are invited since, under the terms of the 1992 Agreement, they are responsible
for customs and border control.
842. The Transdniestrian authorities consider that, following
the break-up of the Soviet Union, a part of the property of the former
Fourteenth Army in Transdniestria belongs to them. The ROG only transfers
to them non-military equipment. It does not include any arms, ammunition
or armoured vehicles, only catering equipment, cars, certain types of engineering
equipment, shovels, fuel-transportation equipment, tents, power equipment
and the like. Before the transfer, the list is authorised by the Ministry
of Defence and the Ministry of State Property in Moscow. Tanks were never
transferred to the Transdniestrian authorities.
843. In 1992 Mikhail Bergman was the military commander
in Tiraspol, the head of the Commandatura. At that time, the headquarters
of the Army was a closed compound, entrusted with specific military tasks.
The Commandatura was situated separately from the ROG headquarters and
dealt with various administrative tasks, like the registration of newly
arriving servicemen, registration of leave and missions, etc. It had a
24-hour military presence and military communications. At the Commandatura
there were also military police and detention cells. The building of the
Commandatura was situated about one kilometer away from the HQ. About three
years ago the building was transferred to the Transdniestrian authorities.
844. The Fourteenth Army was created in 1956, as part of
the Odessa military circuit. The headquarters were in Chisinau, but in
1986 or 1988 the command centre moved to Tiraspol. The Army was situated
in the territories of both the Ukrainian SSR and the Moldovan SSR. No units
were ever stationed on Russian territory. The Fourteenth Army did not include
any aircraft division. In Moldovan territory there were air-defence, engineering,
communications and logistics units, and paratroopers. In the Ukrainian
SSR there were airborne troops. The Army was divided in the following way:
everything that was on Moldovan territory went to Moldova, with the exception
of the equipment on the left bank of the Dniestr, which went to Russia.
After December 1991, the Army briefly belonged to the CIS armed forces.
On 1 April 1992 Russia took over the Army. Mr Lebed was the first commander
of the Fourteenth Army after 1991. After that the Fourteenth Army was renamed
ROG; then General Yevnevich took it over. At the time of giving evidence,
the witness was the commander of the ROG. Generals Yakovlev and Netkachev
used to serve in the Soviet Army, but were never members of the new Russian
armed forces.
The witness did not know anything about General Lebed’s election
to the Transdniestrian parliament in 1993. After Tiraspol he was appointed
Secretary of the Security Council in Moscow.
845. The uniform of the ROG has a chevron on the sleeve
saying Russia which was introduced by the Ministry of Defence in 1994.
Before that, from 1988, the uniform had chevrons and shoulder straps saying
SA for Soviet Army. The witness stated that although the two chevrons were
different, he could not tell whether they could be distinguished by an
onlooker.
846. The ROG holds joint exercises with the Moldovan armed
forces, in central Moldova, but there was never a case of joint exercises
with the Transdniestrian forces.
The cooperation with Moldova is done within the CIS framework,
under the military cooperation agreements. The witness declared that he
had regular meetings and telephone contacts with the Moldovan authorities
- the Ministry of Defence, the Chief of Staff and the President. He had
never met Smirnov, however.
847. The witness was subordinate to the commander of the
Moscow military circuit, the Chief of Staff and the Ministry of Defence.
Russian male citizens aged over 18 years may be drafted into the armed
forces even if they do not reside permanently in Russia. The ROG has recruits
from the Moscow military circuit. The witness stated that he did not know
of 400 persons apparently drafted in Transdniestria in February 2000.
848. Soldiers guarding ammunition stores are issued with
a manual explaining when they can open fire. There has never been any question
of opening fire on Moldovan troops.
31. Colonel Alexander VERGUZ
849. The witness was born on 24 November 1960, in Tiraspol.
He was Deputy Commander of the ROG in charge of educational work since
April 1999.
850. There had been three instances in 2002 of Transdniestrian
authorities seizing ROG vehicles with supplies and holding them illegally.
851. The ROG’s main function in Transdniestria was to maintain
order within the ROG forces; it was not involved in political issues. The
ROG was stationed outside Russian territory, and dealt only with things
that arose within the ROG. The main tasks of the ROG were guarding the
arms and ammunition stores and training military personnel. The PKF’s task,
to keep order in the security zone, was directed towards the “outside world”,
but the PKF troops were not a part of the ROG; they were a separate force.
852. The witness has been serving in Tiraspol since 1992.
In June 1992 there was fighting in the towns of Bender and Dubassari, but
not in Tiraspol, so he did not witness any fighting. The witness further
stated that the Russian military remained strictly neutral and took no
part in the fighting. He was not aware of tanks taking part in the conflict.
853. There was no transfer of weapons, but weapons were
forcibly seized because the people were in revolt. It was unforeseeable.
Women and children came and, under cover of their intervention, the seizure
of weapons took place. The soldiers who were under a duty to guard the
weapons could not possibly shoot at women and children. The situation was
truly exceptional. The people who did it were desperate: there was a war;
they needed to defend their homes. Lorries were also used to break into
stores that were protected by mines. It would have been impossible to recover
the seized weaponry without provoking a combat situation. There were no
seizures of weapons before the armed conflict broke out.
854. The loss of weapons was categorised as robbery or
theft, and proceedings were started to investigate each and every incident.
The witness stated that he was not aware of the outcome of these criminal
proceedings.
855. Mikhail Bergman was the Commandant in 1992. The building
of the Commandatura was situated in the Kirpichny proezd, about one kilometre
away from the HQ. It was under full control of the Russian military at
that time; it could not be shared with any Transdniestrian authorities.
32. Lieutenant-Colonel Vitalius RADZAEVICHUS
856. The witness was born in Vitebsk, Belarus. He was discharged
from service in December 2002; before that he was senior officer in the
military intelligence of the ROG. He had served in the region since February
1993. His duties were collecting data and training intelligence groups.
857. The movement of transport in Transdniestria was difficult.
Recently three transport vehicles being sent to Russia were detained. The
ROG had no contacts with either the Transdniestrian authorities or their
intelligence service. Meeting the Moldova intelligence service was not
part of the witness’s duties either.
858. Olga Capatina served in the ROG under the name of
Olga Suslina. The witness thought she was an agent of Smirnov.
859. The witness denied that the marines or the Alpha Group
of the FSB were ever deployed in Transdniestria.
33. Colonel Anatoli ZVEREV
860. The witness was born in 1953 in the Kaluga region
of Russia. He has been in service in Tiraspol since January 2002; before
that he served in the Moscow military circuit.
861. The joint peace-keeping forces were established by
virtue of the Agreement of 1992 between the Moldovan and Russian Presidents.
The Russian part of the peace-keeping forces was made up of 294 personnel,
29 vehicles, and 264 rifles. It also had 17 armoured vehicles, stationed
at the posts of the PKF and used for communication. The guns were Kalashnikov
machine-guns and Makarov pistols; there were no heavier weapons, like grenade-launchers,
flame-throwers, anti-tank missiles, etc. All vehicles and servicemen of
the PKF bore special insignia. They were allowed to travel around freely
- as stipulated by the 1992 Agreement. The Russian Peace-keeping forces
and the ROG were entirely separate. The senior positions in the PKF were
occupied by officers from Russia. From 1992 to date, the post of Senior
Commander of the Russian PKF had never been held by someone from the ROG;
the Commander had always been someone from Moscow. The PKF did not cooperate
with the ROG in the performance of their duties.
862. The PKF’s duties were to prevent the transport of
arms, explosives and drugs, and to ensure law and order in the security
zone.
The Moldovan and Transdniestrian forces were responsible for
monitoring and preventing actions by destructive forces from their respective
sides. In 1992-1993 the tasks of the PKF were different: to stop the armed
conflict, to separate the combatants, to take away the arms and help to
restore order. At present they were maintaining peace and monitoring the
implementation of the agreements.
863. The witness’s immediate superior was the Joint Control
Commission (JCC), which was set up by the same 1992 Agreement. The JCC
was composed of three delegations: one from the Russian Federation, one
from the Republic of Moldova and one from the Region of Transdniestria.
Each party had six representatives from the Ministry of Foreign Affairs,
the Ministry of Defence, the Ministry of the Interior and the Ministry
of State Security. There was also the Joint Military Command, responsible
for the PKF. Since 1996 a group of military observers from the Ukraine
had participated in the JCC. All decisions were taken by consensus between
the three parties and the Ukraine. The PKF was based on the principle of
the equal division of tasks and responsibilities between members. The JCC
cooperated with the OSCE.
34. Lieutenant-Colonel Boris LEVITSKIY
864. The witness was born on 31 May 1961 in the Novgorod
Region of Russia. He was President of the 80th Military Garrison Court.
At the time of giving evidence, he had been serving in this position since
2000.
The witness was the President of the court, and the only judge.
The place of the second garrison judge remains vacant. The witness was
dealing with administrative, civil and criminal cases as well as military
disciplinary offences. As a military judge, he was subordinate to the Judicial
Department of the Supreme Court - not to the ROG or their commanders, or
to the Ministry of Defence or Ministry of Justice.
The military court which existed in Transdniestria in the days
of the Fourteenth Army was transferred to the jurisdiction of the Russian
Federation at the same time as the Army. Such courts are part of the legal
system of the Russian Federation. As a Russian military court it has jurisdiction
only over Russian citizens - servicemen of the ROG and non-military personnel.
The court does not have jurisdiction over anybody else such as the local
population, the Transdniestrian militia, etc. In case of theft of military
property, for example, the court would have jurisdiction over a Russian
citizen in service in Transdniestria, but if the suspected thief were a
Transdniestrian person, that would be a matter for the local courts. In
any event, the ROG’s military court in Tiraspol would not have the means
of dealing with such a situation. The witness stated that he had not come
across any cases related to the theft or illegal transfer of ammunition
or arms.
865. The ROG had no direct contacts with either the Moldovan
or the Transdniestrian judicial authorities. If anyone were to escape to
Moldovan territory, the ROG would have to seek that person’s extradition
through the Ministry of Defence and the Ministry of Foreign Affairs in
Moscow, who would address themselves to the authorities in Chisinau.
The witness stated that the Transdniestrian authorities prevented
the free movement of the ROG’s military personnel. For instance, he was
himself one day stopped in his car when travelling to Kolbasnoye, and was
prevented from getting there.
35. Lieutenant-Colonel Valery SHAMAYEV
866. The witness was born on 9 June 1966 in Yaroslavl,
Russia. He was appointed to his present position as Prosecutor of Military
Unit 14101 in April 2002; before that he was the Deputy Military Prosecutor
of the Moscow Region. At the time of giving evidence, he was being transferred
to another position in the Moscow Region.
867. As Prosecutor of Military Unit 14101 the witness was
directly responsible to the Military Prosecutor of the Moscow military
circuit. The Chief Prosecutor of the Moscow District could not however
tell the witness to take a particular line in a prosecution, although he
could point out that he was not following the correct procedure. Military
prosecutors were not subordinate to the ROG command; they had no responsibility
to it. The ROG commander could not give them instructions.
The witness’s duties were to oversee compliance with the law
in the ROG, and to investigate criminal offences committed by ROG military
personnel, not those committed by local civilians. The witness had had
no cases of theft, robbery or the illegal transfer of arms or equipment.
868. The ROG’s military prosecutors did not generally have
direct contacts with either the Moldovan or the Transdniestrian judicial
authorities. The witness did not have any special instruction on how to
deal with the Transdniestrian authorities.
The only case involving any co-operation had occurred in 2002.
A ROG soldier and some under-age civilians were suspected of beating up
an elderly person, who had died. The law enforcement bodies in Tiraspol
gave the witness some documents from which it appeared that one of the
ROG’s servicemen might indeed have participated. The witness carried out
an investigation against that soldier and summoned some civilians as witnesses.
So the ROG did have some minimal form of cooperation with the Transdniestrian
law-enforcement bodies, which involved exchanging telephone calls and helping
to locate witnesses.
As the witness did not lay any charges against those civilians,
he did not institute proceedings against them, but the local prosecuting
authorities did bring a case against the local suspects before the Transdniestrian
courts. The witness was not aware of any other such instances of cooperation.
869. The witness stated that the ROG’s personnel had no
problems moving around in Transdniestria; he himself could move around
freely in his car. They could also travel freely to the other side of the
river, with the permission of their superior officer.
870. The witness was aware of the three vehicles detained
illegally by the Transdniestrian authorities. No investigation had been
conducted into the case, because the military prosecutor only has jurisdiction
over Russian military personnel. The witness knew that the Command was
trying to negotiate their return. Likewise the theft of arms from the Russian
Army by Transdniestrian militia would not fall within the witness’s powers.
He would investigate if it were uncertain who had committed the theft but,
once the evidence established that it was Transdniestrian people he could
not take the matter further. He would send the file to Moscow, who would
have to contact the official Moldovan prosecuting authorities to take over
the investigation. Connivance or negligence by Russian military personnel
in facilitating the theft would be within the witness’s jurisdiction, but
the witness had never experienced such a situation and had no information
about what had occurred before he was there.
871. The witness could not contact the Moldovan authorities
directly, unless he had special permission.
36. Vasiliy TIMOSHENKO
872. The witness was born on 3 September 1941 in Kirovograd,
Ukraine. At the time of giving evidence he was retired. From September
1982 until April 2002 he had occupied the position of Military Prosecutor
of the Fourteenth Army, then of the ROG.
873. The Fourteenth Army headquarters moved to Tiraspol
from Chisinau in 1984.
The witness’s job was to oversee the law and order in the Fourteenth
Army. The jurisdiction extended only to the military - previously of the
Fourteenth Army, now of the ROG - not to civilians or the Transdniestrian
militia. If there were an assault on a Russian serviceman by a Transdniestrian
civilian, that would be investigated by the Transdniestrian prosecuting
authorities. In practice the Transdniestrian authorities always acted on
their own, and did not ask for Russian participation. The ROG’s military
prosecutors would normally investigate suspected connivance by military
personnel, including circumstances where the actual theft had been carried
out by civilians and, if there were sufficient evidence of connivance by
military personnel, they would go ahead with a prosecution. In the event
of theft of army property by the Transdniestrian militia with the connivance
of Russian military personnel, the ROG military prosecutor could thus prosecute
the latter but not the former. But no such facts had occurred in normal
times. The ROG’s military prosecutors investigated cases against servicemen
when arms and equipment were taken from the Russian military, but only
during a conflict. And during the 1991-1992 conflict there was in fact
no supply of military equipment to outsiders by Fourteenth Army military
personnel.
874. The Commandatura building had detention facilities.
It was under the supervision of the prosecutor’s office and also subject
to the garrison head of the Fourteenth Army. No civilians would be detained
there. The Commandatura was disbanded in 1996, and now the Transdniestrian
prosecutor’s office was situated there.
875. The witness gave the following account of the applicants’
arrest and detention. When the conflict broke out, a group of terrorists
began operating in the region, the Bujor group. Some prominent persons,
like Gusar, a member of the Transdniestrian militia, Ostapenko and others
were killed, and their funerals turned into massive demonstrations. These
people were killed by the Chairman of the Popular Front Ilascu and the
circumstances in which these people had been shot and burned were known
to the whole town.
Therefore, Mr Chariev, the Transdniestrian prosecutor, made a
request to the commander, General Lebed, to place the terrorists in the
military premises for a while, in order to prevent public revenge. General
Lebed refused permission. The witness, as prosecutor, inspected the guard-house
(date not recalled). He noticed that in one wing there were three or four
cells partitioned off and, instead of a ROG escort and guard, there were
Transdniestrian police. There was also a separate entrance for access to
the wing where the applicants were held. Mikhail Bergman told the witness
that he had given permission for the terrorists to be held temporarily
at the ROG guard-house, to protect their lives and health from the mob.
The witness drew his attention to the fact that he had broken disciplinary
regulations and directed that the guard-house be vacated immediately, which
Mikhail Bergman refused to order. The witness then informed General Lebed
about this, who became very angry with Mr Bergman. The witness went the
next day to see Mr Bergman in order to use his powers to deal with the
breach. But the cells had already been emptied. Therefore, the applicants
were only kept there one or two days.
Bergman was wrong to allow the detention of these civilians in
the Commandatura and their supervision and interrogation by the Transdniestrian
militia. No disciplinary proceedings were instituted against Bergman, because
this was a minor disciplinary infringement which was corrected almost immediately.
876. The applicants were not transferred to the Moldovan
authorities for trial, as this was a time of war. These people had blood
on their hands and had to face justice for what they had done. If the applicants
had been released, it was not certain they would have been punished. Emotions
in the population were running high.
877. After the collapse of the Soviet Union, the Fourteenth
Army was divided between the Ukraine, Moldova and Russia. Moldova and the
Ukraine received tank regiments. Immediately after the collapse of the
Soviet Union, many officers who did not want to serve in the Moldovan or
Ukrainian army or take the oath there, were laid off and came to Transdniestria.
The situation was very volatile. Naturally, every soldier was tending to
think of himself. Two battalions changed their allegiance and switched
to the Transdniestrian authorities. This was during the period of the CIS
command. No legislation on this kind of defection existed. Those were very
difficult times - for Russia as well.
On 1 April 1992 President Yeltsin declared the Fourteenth Army
in Moldova to be under Russian jurisdiction. After that the situation calmed
down, and there were no more defections, or transfers of military personnel
from Russia to Transdniestria. However, those servicemen who wanted to
return to Moldova were free to do so.
878. The Russian Army sleeve chevrons and shoulder flashes
were introduced in 1994; before that the insignia were those of the Soviet
Army. The Transdniestrians had been using their flag and symbols since
1992.
879. There had been no occupation of Moldova by Russia.
The main reason for the tragedy there was the chaotic circumstances surrounding
the collapse of the Soviet Union. The armed conflict was ignited in 1990,
when a new language law was adopted in Moldova. The situation in Transdniestria
became very tense. “Moldova belongs to the Moldovans,” was the slogan one
could hear. Mr Ilascu issued Order No. 6, which was published in September
1990 and immediately incited fear in the Transdniestrian population. People
started to leave the region after it. And it was immediately after the
issue of that “order” that these tragic events started. The Ilascu group
did a lot of damage, stirring up ethnic troubles. The “Bujor” group was
preparing to blow up the building of the local parliament; for this purpose,
they brought in large quantities of explosives. Because of the unrest and
the activities of this terrorist group at that time, many officers sent
their families away, including the witness, who evacuated his family to
the Ukraine.
880. When the conflict started in 1992, the ROG continued
to maintain good communications with the Moldovan military. When the premises
of the Fourteenth Army near Bender were hit by shells from the Moldovan
side, the witness called them on the telephone to tell them that they had
hit the ROG. After that, the Russian troops opened an investigation into
the bombardment. The file was sent to Moldova for further investigation,
but there had been no reply since.
881. Neither the Fourteenth Army nor its tanks were involved
in the armed conflict. There was an incident when two tanks were hijacked
by the Transdniestrians and driven onto the bridge. The Russian forces
tried to stop them, and one of them was hit from the Moldovan side and
set on fire.
882. The witness had never heard about 40 unarmed Moldovans
being killed in a bus in Bender near the fortress. But he did hear about
an ambulance being shot at by the Moldovan armed forces, an attack in which
a pregnant woman and a nurse had died. He also heard about other atrocities
committed by the Moldovan forces - for example, the incident about one
month later when the Moldovan forces bombed inhabited settlements. The
Moldovan planes bombed the town of Parcani, which is on the Transdniestrian
side. There was no Russian aviation present in the region, only helicopters.
883. The witness was not aware of incidents when the Fourteenth
Army supplied arms to the Transdniestrian authorities or armed civilians.
The Fourteenth Army retained all its military hardware; nothing was handed
over. No theft of Fourteenth Army military property occurred during the
1991-1992 period. There were four cases of seizure of military property
at the beginning of the armed conflict. The witness sent these cases to
the Transdniestrian prosecutor, as it was not possible to send the file
on to the Moldovan authorities.
884. The witness knew General Costas, former head of the
Moldovan DOSAAF (Voluntary Society to Support the Army, Air Force and Navy).
The DOSAAF of Moldova had a lot of military equipment for training - planes,
tanks, armoured vehicles, etc. It had a military range where it would give
people training in how to drive tanks, make parachute jumps, fire and reload
cannons, and so on. The Moldovan DOSAAF left their equipment to Moldova,
and the part in Transdniestria went to the local authorities.
885. The witness knew personally Mr Nosov, the first deputy
to the Chief Military Prosecutor, but was not aware that Mr Nosov had come
to Tiraspol in 1996. He thought that had there been any investigation carried
out by Mr Nosov he would have been informed or would have been involved
in it. The witness disputed the existence of the report of 30 August 1996
and the authenticity of the document.
37. Vladimir MOLOJEN
886. The witness was the General Director of the Department
of Information Technology (DIT) of the Government of Moldova. He had held
this post for two and a half years. Before that he was the Head of the
Department responsible for citizenship documents in the Ministry of the
Interior. In 1991 and 1992 he was the Deputy Minister of the Interior.
887. The witness’s Department delivers passports and part
of its work is drawing up the register of Moldovan citizens. As far as
people living in Transdniestria are concerned, documents are delivered
confirming that they are Moldovan citizens. The register of Moldovan citizens
does not yet include all citizens because the establishment of the register
is a ten-year programme, continuing until 2005. Citizens wanting a passport
will apply to passport offices which exist in various places in the country.
This applies to citizens living in Transdniestria as well. Officially there
is no such thing as a Transdniestrian passport. There are rumours to the
effect that one is being planned. The Moldovan DIT has no contacts with
the Transdniestrian authorities as regards the issue of passports.
888. The DIT of Moldova has no lists concerning the number
of Russian citizens living in Transdniestria, although foreign citizens
residing in Moldova should comply with Moldovan legislation and register.
The DIT has no official data as to whether Smirnov possesses a Russian
passport, though this is what is said in the newspapers. The DIT only has
the data received from the regional offices and from the Russian consular
authorities.
Any person who wants the establishment or renewal of a Russian
passport would have to go to the Russian Embassy. According to the Moldovan
statistics there are more than a thousand Russian citizens residing in
Moldova. But, those statistics do not cover Transdniestria. The DIT has
never asked the Russian Embassy to give them such information, although
the DIT enjoys good cooperation with the Russian Embassy and, whenever
they want information, they send the Russian Embassy an official request.
The witness pointed out that at the time of giving evidence,
according to Moldovan law, a person could only hold one citizenship. Consequently,
if a Moldovan citizen took out the citizenship of another country, then
they would be expected to send a request to the DIT for cancellation of
their Moldovan citizenship. In exceptional cases, by virtue of a presidential
decree, a Moldovan citizen could have dual citizenship. Only Moldovan citizens
could work in the public service and be a civil servant.
889. Telephones, both land and mobile, come under the Department
that deals with communications, not the Information Technology Department.
The DIT has no contact with the telephone people. The witness did not know
whether there was a common telephone system for Moldova, including the
Transdniestrian region, or whether there were separate systems.
890. Mr Smirnov does not hold Moldovan citizenship and
has never asked for it. There was a protocol of 6 May 2001 between the
Moldovan President and the leader of the Transdniestrian regime in this
connection. The Moldovan President was trying to ease the relations with
the Transdniestrian leadership, but this protocol remains merely a statement
of intent with no official value. In order to make this protocol effective,
Moldova would have to change the law. When cancelling Moldovan citizenship,
the DIT acts on request, but does not impose it. The drawing-up of the
national register of citizens is an exercise being carried out within a
ten to twelve year framework. This exercise does lead the DIT to a certain
extent to verify whether persons have a second citizenship. The DIT is
also discussing the possibility of exchanging information with various
other States, such as Romania, the Ukraine, Bulgaria and Russia, but this
is not operational yet. There is no sanction for non-compliance with the
obligation to renounce Moldovan citizenship on acquiring another citizenship.
The DIT believes that a significant number of Moldovan citizens do have
second passports. This is not a problem that concerns only Russia (as the
country of second citizenship) but all the countries of South-Eastern Europe.
891. In 1992 the majority of the population in Moldova
still had a Soviet passport. It was only in 1993 that the Moldovan President
signed a decree on a unified passport system for Moldova. The first passports
were issued in 1995 and 1996. What showed that a person was a Moldovan
citizen before that date was an entry in the Soviet passport from 1974.
Moldova introduced legislation involving a zero option. Persons living
in the territory were accorded a certain status, but a timetable was established
within which that status had to be confirmed. Persons who did not have
the special entry in their Soviet passport had to apply for citizenship.
All those who lived in the territory of Moldova had the right to obtain
Moldovan citizenship if they wanted to.
A person possessing two passports would be offered a choice.
But he or she would remain a Moldovan citizen until the choice had been
made, despite having two passports at the same time.
892. A telephone call from Chisinau to Tiraspol is an internal
call.
893. The question whether a residence permit could be refused
to someone who has committed a crime was not a matter for the DIT, but
for the Immigration Department. The witness knew however that Moldovan
legislation provided for the refusal of a residence permit to a foreign
applicant who had committed a crime.
Concerning the issue of a Moldovan identity document to Mr Ordin,
a member of the Supreme Soviet of Transdniestria regarded as a danger to
the national security of Moldova, the witness stated that the DIT issues
documents without asking questions. An identity card as a citizen of Moldova
is issued to any person who is permanently resident in Moldova.
38. Ion COSTAS
894. The witness was the Minister of Defence of Moldova
from February 1992 until 30 July 1992.
The witness became a General in the Soviet Army in 1984. He is
a graduate of the Air Officers’ Institute. He was a military pilot. He
graduated from the Gagarin Military Academy in Moscow and served in the
Far East and the Balkans.
From 24 May 1990 until 20 February 1992, he was the Minister
of the Interior. Before that he was the Chairman of the Parliamentary Committee
on Defence. After his period as Minister of Defence, he served as military
attach? in Bucharest, from July 1992 until October 1993. Thereafter he
withdrew completely from politics and never entered the public arena again.
He was now a retired person living on his pension, and a reserve General.
895. In 1992 the Moldovan side started recruiting people
for the defence of the realm against the forces of Smirnov. Moldova had
some troops under the Ministry of the Interior. In March 1992 they started
recruiting troops for the Ministry of Defence. At that time many Moldovan
military personnel were coming back to the country. Fifty-one officers
returned from the army of the former Soviet Union. At the Ministry of the
Interior the witness realised that they had to create a Ministry of Defence
as soon as possible. Moldova had no national army when the conflict broke
out, when war was imposed on them by the Transdniestrian side. The Ministry
of Defence therefore joined forces with the Ministry of the Interior. There
were eight, ten, perhaps twelve battalions, that is all Moldova had to
oppose the Cossacks, militia and military forces on the other side. This
was confirmed by Mr Seleznev when he addressed the Moldovan Parliament
in 2002. On the Moldovan side there must have been twenty-five to thirty-five
thousand people altogether. This figure included reservists and non-military
personnel such as construction engineers and so on. At the same time the
Russian Army in Moldovan territory numbered about 14,000 professional soldiers.
The Transdniestrians had nine thousand militiamen trained and
armed by officers of the Fourteenth Army. These officers were moved to
the reserves and appointed commanders of platoons and battalions of the
OSTK police. In addition, there were five to six thousand volunteers who
came forward after an appeal was made on Russian television for fighters
to go to Transdniestria to support the cause. These volunteers came from
all over the Russian Federation. On top of this there were fifteen to twenty
thousand soldiers. There were, therefore, at least thirty-five to forty
thousand troops from the left bank who were opposed to the legal forces
of the Republic of Moldova.
This is without talking about the arms and ammunition which were
available on both sides. There were no tanks at all on the right side of
the river - no artillery of the Grad-type, mobile missile launchers or
heavy shells. On the left side of the river they had three battalions of
Grad-type artillery, missile launchers and grenade launchers. They had
aircraft from the DOSAAF Organisation and helicopters and tanks of the
Fourteenth Army. Moldova had no tanks. General Lebed made available to
the volunteers (the Cossacks, OSTK) whole stockpiles of ammunition situated
on the perimeter of the East bank of the river.
896. At a meeting that President Snegur had with Mr Gorbachev
in 1990, the latter made it clear that, unless Moldova signed the Federative
State Agreement, three Republics would be created in Moldovan territory,
namely a Gagauzian Republic, a Transdniestrian Republic and a Moldovan
Republic. And that is what had happened.
897. As to the presence of Russian troops in Moldova in
1991 to 1992, this was covered by a decision signed by Marshal Shapashnikov,
former Commander-in-Chief of the CIS forces, countersigned by a number
of Generals and Colonels, i.e. Document No. 314/1 of 23 March 1992. The
arms and ammunition of the Fourteenth Army were divided up. This document
specified which arms and ammunition were to remain with the Fourteenth
Army, and which were to go to the Republic of Moldova.
898. The witness stated that he held information from the
General Staff that in 1990 to 1991, when the Soviet Union still existed,
the Moscow leadership took a secret decision to withdraw the Army from
Republics over which a question mark hung, including the Baltic States
and Moldova. Tank regiments were withdrawn en masse from Moldova. For example
120 tanks, together with a missile brigade, were withdrawn from Balti.
Munitions were stockpiled in Kolbasna. All tanks were withdrawn from the
right bank of the Dniester, as well as missile launchers. Nothing remained
on the right side, even the mortar units and grenade launchers held by
certain units in Moldova were completely withdrawn and transferred to the
left bank. The 300th airborne regiment should have remained with the Moldovan
Army, but instead it was withdrawn to the territory of Russia.
899. DOSAAF was a civic organisation composed of all persons
fit for combat, from the age of fourteen to the age of sixty. It included
therefore the whole society and was an immense organisation, with a permanent
structure. In the Soviet Union it was a paramilitary organisation headed
by active servicemen, and their deputies were all military people. The
rest were civilians. The object of the organisation was to train people,
particularly young people. It was a monster, comprising 102 million people
in the Soviet Union. In Moldova it had 2 million members. It had sports
aircraft, delta planes, radar systems, marine schools for training people
to use submarines, and so on.
There were no tanks, helicopters, missile launchers and the like
available to DOSAAF in Soviet times. There was not much weaponry made available
to that organisation; it was mainly for training.
The CIS, after it was set up, had armed forces, with a command
led by representatives of the Russian Army. Marshal Shapashnikov was the
Commander and also the Minister of Defence of the CIS. This Minister was
appointed in accordance with a proposal made by the President of the Russian
Federation, Mr Yeltsin. But there was also a Russian Minister of Defence
at the same time, namely Pavel Gratchev.
All the top commanders of CIS troops were from Moscow, the others
were Ukrainian and Russian Slavs.
Moldova did not ratify the military part of the CIS Treaty. Moreover,
Moldova had no influence on the acts of the Minister of Defence of the
CIS, Marshal Shapashnikov. It was during the conflict that the Fourteenth
Army was transferred from the CIS to the Russian Federation.
900. Marshal Shapashnikov, Commander-in-Chief of the united
armed forces of the CIS, did not respond to the letter sent to him in April
1992 by the President of Moldova, drawing his attention to the fact that
CIS military forces were participating in the transfer of arms to the separatists.
The policy which he was pursuing was designed to keep Moldova
and other republics within the Soviet Union, or at least within the sphere
of direct influence of the former Soviet Union.
When Lebed took over the Fourteenth Army, a substantial transfer
of weapons occurred, including a lot of anti-personnel mines, to the separatists
by the Fourteenth Army. Stockpiles of arms were moved from Kolbasna. In
1990, when he was the Minister of the Interior, the witness took part in
a meeting with General Iakovlev, Commander of the Fourteenth Army and the
Moldovan Prime Minister Muravschi. As regards the separatists, Iakovlev
said that he had received specific instructions from the Russian Ministry
of Defence to provide arms to the militia in Transdniestria. In reply to
Mr Muravschi, who wanted to know if that was a warning, General Iakovlev
said: “No, it is just a fact that 10,000 Kalashnikovs have been transferred
to the militia for the defence of the Transdniestrian region.” General
Iakovlev added that he had been given instructions to resist attempts by
Moldova to bring the region under its control and not to allow Moldova
to establish any such control.
The transfer of weaponry was therefore inevitable. Everything
was well organised. Moldova had authoritative factual evidence, for example,
from prisoners taken by the Moldovan forces, who admitted that this had
happened. Moldova had also obtained documents from the Fourteenth Army
showing that weaponry had been transferred to the separatists. At a certain
moment, in May 1991, the then Commander of the Fourteenth Army, Netkachev,
received instructions from the Minister of Defence in Moscow to call up
reservists and to put the troops and military equipment into a state of
combat readiness because Transdniestria was “Russian territory and ...
we [Russians] must defend it by every means.” The witness had a meeting
with General Netkachev who told him that reserve officers were leaving
the Fourteenth Army to train the separatists.
The witness pointed out that civilians cannot lay mines; this
specific task can only be performed by professionals with military training.
After the conflict, Moldova asked for the help of specialists from the
United States to clear mines from the territory of Transdniestria. Americans
also trained Moldovan specialists to demine the minefields.
901. The Ministry of Defence of Moldova was not able to
put up any meaningful resistance to the Transdniestrian forces. When the
conflict broke out the separatists had 30 tanks, 50 artillery pieces, mortars
of 6 and 120 mm and tactical groups well trained in the use of artillery.
Their military actions were well organised by active military officers.
Shells of 120 mm cannot be bought on the open market; only the Fourteenth
Army had shells like that in the region. DOSAAF did not have any shells
of that calibre. There was quite a powerful group of the Fourteenth Army
in Bender, along with the Transdniestrian Popular Guard. The buses in which
unarmed Moldovan soldiers were being transported were fired at from the
fortress in Bender/Tighina. Following investigations by the Moldovan authorities,
the conclusion was that it was Russian soldiers who had done this. Twenty-three
persons died.
902. The witness had not wanted to retire; it was the decision
of Parliament and President Snegur, who were saying that his departure
was required by Moscow.
903. There was an incident in which Moldovan aircraft dropped
bombs on a village in Transdniestria. There were two air missions, involving
four units, with two aircraft taking part on each occasion. When the order
came through to stop the separatists crossing the bridge, the order was
given to bomb the bridge. The aircraft used were not properly equipped
for bombing missions. The bombs were dropped but did not fall on the bridge.
There were tanks on the bridge. It was not necessary to be a military officer
to identify whose tanks they were; it was clear that the tanks and the
soldiers were from the Fourteenth Army. They had deliberately put the soldiers
on reserve, and then called on them to man the tanks. The people manning
those tanks were not amateur cyclists. Only a professional could manoeuvre
a tank. They fired on the Moldovan forces. It was all filmed and recorded.
904. The military action could have been avoided had the
Russian side not provoked and supported this invasion. The conflict was
the deliberate decision of the Russian leadership at the time.
905. When the Soviet Union broke up, a small country like
Moldova found enormous difficulties in co-existing with a great country
like Russia. The first step for Moldova was to create an army, a Ministry
of Defence. Neither the Ministry of the Interior nor the Ministry of Defence
proved able to maintain the territorial integrity of the country. In the
first few months of its existence, Moldova could not act effectively; it
had no arms, ammunition or weapons, because most of this material had been
withdrawn to Russia or Transdniestria in 1990 to 1991. It had no artillery
units able to resist, or to attack, the units on the other bank of the
river. Moldova had no other military equipment. In order to obtain military
equipment, Moldova asked its neighbour, Romania. Moldova bought light arms
from Romania. No Romanians, however, took part in the fighting, despite
what the newspapers said. No military personnel from foreign States were
enrolled in the forces of the Moldovan Ministry of Defence.
906. General Lebed said many times that his Fourteenth
Army was able to reach Bucharest in two hours, although it never had this
in mind as an objective. The object of the Russian aggression was to retain
power over the territory of Transdniestria and to maintain pressure on
the small country of Moldova.
907. The separatists in Transdniestria in 1991 to 1992
did not have much difficulty in restructuring their manufacturing lines
in the existing factories there in order to produce arms. Probably by 1992
they were already able to manufacture arms of their own.
The Moldovan air force had Mig-29 aircraft combat. The Commander-in-Chief
of the Armed Forces was the President, President Snegur, and the General
Staff was under General Creanga. The witness denied having spoken to Mr
Plugaru on the telephone in relation to the use of combat aircraft, since
Mr Plugaru was not on that level.
908. The witness stated that he had never received any
reports alleging ill-treatment by Moldovan soldiers of the civilian population
and that he had no power anyway to investigate such matters.
909. After the bloodshed had stopped, Russia followed
the same policy, protecting its own strategic interests, in trying to maintain
its influence in Moldova.
39. Valentin SEREDA
910. At the time of giving evidence, the witness had been
the Director General of Prisons in Moldova since August 2001. He had been
working in the penitentiary system since 1978/1979.
911. There are no agreements for judicial cooperation in
the penitentiary field between Moldova and Transdniestria. There are no
practical arrangements for the transfer of detainees. There has never been
a transfer of prisoners from one side to the other. One attempt was made
to have people in Tighina/Bender transferred to a hospital in Moldova.
But the Moldovan authorities refused because no agreement had been reached.
Moldovan doctors do not have access to the prisons in Tiraspol, and vice
versa. There are no telephone conversations between prison doctors in Moldova
and Transdniestria. The witness had no information about doctors outside
the prison service treating prisoners. Transfer of prisoners to other States
does occur, by means of extradition procedures. This is handled by the
Office of the Prosecutor General.
912. The institution which treats patients for tuberculosis
in Tighina had its water and electricity supplies cut off by the Transdniestrian
authorities. Moldovans sent a diesel energy plant and water tanks there.
Cars visiting from Moldova were detained at the border for one to three
days. The local authorities in Tighina prohibited the transfer of tuberculosis
patients from Moldova to this medical centre. The Tighina militia posts
checked every car in and out.
913. There is not one single prisoner detained in Moldovan
prisons on the basis of a decision by a Transdniestrian court. This is
so even in Moldovan institutions in Tighina. Similarly, no person is detained
in a Transdniestrian prison on the basis of a Moldovan court decision.
914. The witness came from Tighina, but he had never visited
any prisons there during the last fifteen years. However, he thought that
there were no major differences as regards the conditions of detention,
prison food, medical assistance, and so on, between Moldova and Transdniestria.
915. If a prisoner from Moldova escaped and fled into Transdniestria,
Moldova would probably seek assistance from the Transdniestrian authorities.
916. In 2002 Moldova began removing the shutters (“eyelashes”)
on the windows of prison cells; this operation should be finished by the
end of 2003. These shutters prevent ventilation and natural light penetrating
into the cells. Moldova tries to improve cells generally, but as there
are not sufficient funds, they have begun with juvenile detainees. They,
for example, have wash basins and a shower in every single cell. It is
possible for prisoners to receive television sets and so on from their
relatives.
917. During the cross-examination by the applicants’ lawyers,
the witness was informed that a transfer of detainees occurred between
the Russian Federation and the “MRT”.
In particular, the applicants’ lawyers put forward the case of
V.C., who was born in 1968, arrested in the “MRT” in 1992 and transferred
in 1993 to Astrakhan (Russian Federation) where he was sentenced by a Russian
Federation court to fifteen years’ imprisonment. The same year he was brought
back to Transdniestria. Then in 1999 he was transferred again to a Russian
Federation prison and he was finally transferred back to a Transdniestrian
prison in 2002. A second example put forward was that of one R.C., born
in 1973, who was arrested on 20 October 1992 in Astrakhan and transferred
on 2 July 1993 to Tiraspol, Transdniestria, where he was convicted on 14
March 1996 by the “Supreme Court of the MRT”. On 27 November 1999 he was
transferred to Moscow and on 8 December 1999 to Astrakhan. There he was
convicted by a court of the Russian Federation and sentenced to ten years’
imprisonment. On 21 October 2002 he was transferred to a prison in Tiraspol.
In response to this information, the witness stated that he was
not aware of that, and that he could not be, as he was only aware of transfers
from or to the territory controlled by the Moldovan authorities. He was
certain that those transfers were not effected through or with the authorisation
of Moldovan institutions and assumed that they were arranged directly between
the authorities of Transdniestria and those of the Russian Federation.
40. Victor BERLINSCHI
918. The witness was a Member of Parliament from 1990 until
1994 and Chairman of the Parliamentary Committee on fighting crime. At
the time of giving evidence, he was a practicing lawyer and no longer a
Member of Parliament.
919. The Parliamentary Committee had no involvement with
the Transdniestrian conflict. The witness himself had no direct knowledge
of the Ilascu case. He withdrew completely from politics in 1994.
He was however involved in the discussions in 1991 until 1992
with the Transdniestrian leadership to resolve the conflict. But they said
that they had their own armed forces and would do their own job, and the
discussions came to nothing.
41. Constantin OBROC
920. The witness was Deputy to the Moldovan Prime Minister
from May 1990 till June 1992. From 1993 until 1996 he was an adviser to
President Snegur on local administration. From 2002 onwards he had been
an independent consultant. As Deputy to the Prime Minister, he was dealing
mainly with problems of local administration. There were three Deputies
to the Prime Minister in the Muravschi Government. The witness was appointed
head of the Parliamentary Committee dealing with the negotiations with
the Transdniestrian regime. As one of its last acts, this Committee managed
in 1992 to bring Transdniestrian parliamentarians to the Moldovan Parliament.
Then the armed conflict broke out.
921. The witness did not resign of his own accord in June
1992. The whole Muravschi Government was dismissed; there was a crisis
between Parliament and the Government because of the Transdniestrian situation.
The relation between Russia and Transdniestria was very
clear. According to the last statements by the President of the State Duma,
Mr Selezniov, when he was in Chisinau, whatever happens in Transdniestria
is intrinsically tied up with the Russian Federation.
922. The witness did not have any information about the
distribution of arms by the Fourteenth Army to the Transdniestrian population.
However, the participation of the Fourteenth Army in the conflict
was a well known fact. It was fully documented in the press. The tanks
of the Fourteenth Army, in particular, were involved. The witness was not
in the field, he did not see the military operations himself, so that he
could not describe directly to what extent the Fourteenth Army participated,
how many soldiers and so on. But it was quite clear that it happened; everyone
knew about it.
923. The witness did not take part in any negotiations
with the Russians, but with the Transdniestrian people. The Parliamentary
Committee he headed brought together elected parliamentarians from Transdniestria,
the Ukraine, Moldova and Romania. No representatives of the Russian Parliament
were contacted in the context of the negotiations carried out by the Committee.
924. The witness’s opinion was that the Ilascu trial was
the consequence of a political game on a large scale. There were no clear
reasons for their trial. There had been an exchange of prisoners on both
sides, but this group had been excluded.
If the Russian side had wanted the release of the Ilascu group,
this would have happened.
925. The interests in Moldovan territory went back more
than two centuries, to the time of the Russian-Turkish war. There had been
so many Slavs, i.e. Russians and Ukrainians, living in Moldova. These big
countries took the presence of their people as an excuse for wanting to
control what went on in Moldova.
The activities on the left bank were promoted and coordinated
by the Soviet authorities. President Gorbachev sent his representative,
Marshal Achrameyev.
926. The witness came up with a proposal to resolve the
Transdniestrian problem: give the Transdniestrians a degree of power to
govern themselves, so as to allay their fears and to satisfy them. The
witness suggested that the area be called the Transdniestrian “Region”
(whereas they now call themselves a Republic), that there be a common currency
and a common responsibility for foreign relations for the whole country
of Moldova, that the Transdniestrians be allowed to have some symbol of
their own, such as a flag, and that they have some military forces under
their authority. A similar scheme was proposed for Gagauzia. The plan also
involved dividing the Regions into counties but preserving Moldova as a
single entity. The idea was to leave more autonomy to the people of the
Transdniestrian region and counties because of their particular history.
But this proposal was rejected.
Originally, the point of view of the Transdniestrian authorities
was the same as that of the Moldovan authorities. When the Moldovan Republic
was being created, no one talked of the infringement of the rights of these
Russian-speaking people. But there were in this region other people who
had separatist and other objectives. At the same time the Popular Front
was creating conditions for Moldova to reunite with Romania. Moldova had
to deal with this situation. Before the local administration of the illegal
Transdniestrian regime was formed, of course the local authorities there
were recognised. The central authorities worked with them; they participated
in all the normal activities. After the separate regime in Tiraspol was
created, the right bank ceased to recognise the local authorities on the
left bank. However, in reality, the Moldovans were in contact with real
people on the other side. The de facto situation was that they were the
leaders of the region.
Concerning the recognition issue, it was difficult to adopt a
strictly legal, formalistic approach, to the effect that since the lawfulness
of the Transdniestrian regime is not recognised by the Moldovan Government
or the international community, Moldova should not have any working contact
whatsoever with them. This would mean that the conflict could never be
resolved, but Moldova was concerned with helping real people.
927. The witness did not know anything about the applicants
being allegedly Moldovan intelligence agents in Transdniestria.
928. No one in the Government was in favour of the use
of force in order to solve the Transdniestrian conflict. But when the militia
premises and other buildings were occupied in the beginning, Moldova had
to react with force.
Romania has interests in Moldova. Moldovans and Romanians are
people of the same ethnic origin. Romania was involved in the Tighina/Bender
negotiations. The Romanian side always acted in an objective way, beyond
reproach. The negotiations achieved a compromise. They brought back the
local representatives to act as one State.
929. Assistance was provided by the central Moldovan Government
and local authorities to the families of the Ilascu group. In his position
as presidential adviser, the witness had received Mrs Ilascu on several
occasions and taken her to see the President of Moldova.
930. One objective of the Yeltsin/Snegur Agreement of 21
July 1992 was to stop the military conflict, the battles and the killing.
This did not mean that the Moldovan Government had abandoned its sovereignty
over this territory.
42. Mihail SIDOROV
931. At the time of giving evidence, the witness was a
Member of Parliament and Chairman of the Committee for Human Rights and
National Minorities.
The witness started his career as a professional judge. For fifteen
years he worked in the judicial system of Moldova. He was appointed as
a judge 30 years ago. He was a member of the Praesidium of the Supreme
Criminal Court. From 1981, following his judicial career, he went to work
at the former Supreme Soviet. He was Deputy Head of the Legal Department
of the Secretariat of the Supreme Soviet. In 1991 he was dismissed from
his office in Chisinau only because he was of Russian origin and he took
the decision to go to Transdniestria. He was appointed Head of the Justice
Directorate in Transdniestria. He worked less than a month there. Until
December 1993 he worked in private business. From February 1994 until 1998
he was a Member of Parliament. From 1998 until 2001 he was the Ombudsman.
932. When he was elected Member of Parliament in 1994,
the chapter in his life concerning his position as former Head of the Justice
Directorate in Transdniestria was closed. No one on the Central Election
Committee raised any objections. There the witness did not hear anything
of the Ilascu case.
The fact that for a short while he was at the service of the
separatist regime in Transdniestria has not been an obstacle for the witness
in his subsequent career in Moldova, as Ombudsman, for example.
933. In May or June 1998, when the witness was Ombudsman,
the wives of the Ilascu group came to see him. The witness and his colleagues
advised them that they had no real means of solving the problem and that
they would be better served in going to see the OSCE Mission. The witness
then worked with the OSCE. Other citizens from Transdniestria came to see
the witness with problems, but the Ombudsman’s office was not capable of
solving these problems without the OSCE.
934. The Moldovan Government had no power to influence
the Transdniestrian regime in order to secure the release of the Ilascu
group. After the illegal regime created its own administration, including
courts, there was no contact, no official channel through which the Moldovan
authorities could influence them. Four years after the trial, there were
attempts to do something. Before that it would have been pointless, because
Moldova had no means of tackling the problem. The witness realised that
even the meetings involving the OSCE did not change the situation.
The witness took part in international meetings of Ombudsmen
because he took the view that Moldova could not solve the problem internally.
Moldova acceded to the Framework Convention on Minorities in 1996. In 1997
Moldova enacted the Law on the Status of National Minorities. The human
rights situation in Moldova was discussed by the Committee of Ministers
of the Council of Europe, where it was said that a lot was being done in
Moldova to ensure observance of human rights. The Government has a department
on inter-ethnic relations. The minorities in Moldova are made up of 13%
Ukrainian, 13 % Russian, 5% Gagauz, 4% Bulgarian and 3% Jewish. Over 35%
of the population in Moldova is made up of ethnic minorities. In Transdniestria
40% are Moldovan, 28% are Ukrainian and 22% are Russian.
935. In March 1994, just after Mr Ilascu had been elected
as a Member of Parliament for the first time, the Parliament prepared the
conditions for him to serve as Member of Parliament. At that time the Ilascu
file had a political dimension. If one viewed the case only from a strictly
legal point of view, perhaps one could have acted in a quicker and more
constructive way.
Mr Ilascu’s release was the result of a political move; it did
not follow from any measure by the legal authorities.
The Government did not have any realistic possibility of doing
anything about the Ilascu case. It could not deal with it as a matter of
priority. In 1997 the witness was nominated to act with the Deputy Minister
of Justice, Mr Sturza, to deal with the Ilascu problem. There was a meeting
between Mr Sturza and the so-called Minister of Justice of Transdniestria.
This was a purely protocol meeting. It did not change anything. There were
no relations afterwards. If the meetings had continued, the Ilascu problem
would have been raised, but things did not happen that way.
936. The witness could not remember which of the three
Ombudsmen dealt with the Ilascu case. It was during the first months of
the Ombudsman’s office. The witness had meetings with the OSCE at which
he raised the issue of the Ilascu case. As a parliamentarian he did not
approach any international organisations about the Ilascu case. His opinion
was that they were not in a position in Moldova to resolve this specific
problem.
937. The witness was not aware that a judgment of 3 February
1994 by the Moldovan Supreme Court had ordered the Ilascu case to be sent
to the Moldovan Public Prosecutor for a fresh criminal investigation. He
was only aware of Sturza’s proposal that the charges against the Ilascu
group be the subject of a new trial in a foreign country.
938. The witness had never seen the Ilascu file. From the
information he had, it seemed to him that the main provisions of criminal
procedure were fulfilled – that is to say, the accused were charged and
indicted, the defence had access to the court file, evidence was taken
from witnesses, proof of the alleged conduct was adduced, and there was
a hearing before a court at which the defendants were present. From the
procedural point of view, it appeared to the witness that all the standards
of criminal procedure were fulfilled. The witness admitted that the judgment
of the trial court was quashed as being unconstitutional and agreed that
that decision itself needed to be implemented. He thought that an appeal
or review court should study the whole file.
As regards the victims of the alleged crimes, the witness’s opinion
was that the decision in this case would be linked to the settlement of
the whole Transdniestrian problem.
939. In so far as further action should be considered in
terms of criminal procedure, the witness saw two possible scenarios. Firstly,
the Supreme Court of Moldova, as the highest court in the land, would review
the case. Secondly, one could start from the premise that the facts did
indeed prove that a criminal prosecution should have been brought: there
was a criminal investigation, evidence was assembled, and so on. On that
basis, the case should be referred to the Supreme Court for further study.
There should be a re-consideration of impartial evidence, outside the political
context. The witness was of the opinion that the Code of Criminal Procedure
did not include any provision for what was done by the Supreme Court in
the Ilascu case. In any event, he did not know of any other such cases
in Transdniestria and Moldova. Finally, he found it obvious that international
standards were not complied with by the Moldovan Supreme Court.
940. The witness was aware of the decision of August 2000
by the Prosecutor General to quash the criminal investigation against the
Transdniestrian prosecutors and judges who had taken part in the Ilascu
trial. In 1995 or 1996 the Moldovan Parliament had a meeting with colleagues
from Tiraspol during which the witness asked them why they would not come
to Chisinau. The parliamentarians from Transdniestria replied that they
could not come to Chisinau because a criminal investigation had been opened
against them by the Moldovan Prosecutor General. The witness thought that
the launching of this criminal investigation against the Transdniestrian
prosecutors and judges was a political rather than a legal act. Likewise
it was a political issue whether to cancel the decision to launch a criminal
prosecution.
941. The witness stated that at the time when he was Ombudsman
there were three Ombudsmen. He could not remember which one of them was
specifically dealing with the Ilascu case. If they had directly approached
the Transdniestrian administration, they would not have achieved anything.
This was illustrated by their efforts regarding the problems encountered
by the institution which existed for the treatment of prison inmates with
tuberculosis in Bender. The Transdniestrian local authorities had cut off
the electrical and gas supplies and the sewers. One of the Ombudsmen approached
Mr Smirnov. But there was no response at all. The Ombudsman’s office approached
the OSCE, an international organisation – the only entity with some influence
in the region.
942. Courts had been functioning in Transdniestrian towns
for more than ten years; they had ruled on more than 4,000 criminal cases
and more than 10,000 civil cases. The question therefore arose whether
every such judgment should be annulled or not. Either all these cases would
be re-heard or there would be a simple review of these cases on request,
if necessary with a decision by the Supreme Court.
943. The crisis of 1991 to 1992 was not the result of spontaneous
acts. In 1989 a new languages law was enacted in Moldova. This was not
a welcome decision. It led to part of the population organising protests
as from June/July 1989, with the left bank, Tiraspol, taking an active
part. This constituted the first push towards the break-up. In 1990 the
situation worsened in Chisinau when certain political forces began organising
activities against parliamentarians from the left bank. There are 360 seats
in the Parliament. Some left-bank parliamentarians were beaten up, the
law-enforcement bodies did not take any action and, as a result, about
60 parliamentarians from the left bank left Parliament. From then on the
situation worsened.
Similar events occurred in the Gagauzian region. Parliament was
summoned in order to settle the problem through peaceful means, but the
Gagauzians and the Transdniestrians decided to set up their own power structures.
Parliament thereupon declared these power structures unconstitutional.
Consequently, as from August 1990 there were three regions in Moldova.
After the Gagauzian situation was resolved, it was only Transdniestria
which de facto was not under Parliament’s authority.
The events in 1990 developed very fast. In October 1990 there
was a march by volunteers to southern Moldova. This march was provoked
by the proclamation of the Gagauz Republic in August of that year. It was
all part of an attempt to instil fear in the country. Luckily, in the South
there was no fighting or loss of life. The armed conflict was provoked
by what happened in Dubasari on 2 November 1990, and from then onwards
it was practically impossible to stop developments.
In March 1992 the armed conflict flared up, first in Dubasari
and then in Bender. After that all the links of the negotiating process
broke down. Parliament had no access to the left bank. There were no relations
between official structures from 1992 onwards. It was only in 1994 that
Parliament established a Committee for re-establishing contact between
the official structures of Moldova and Transdniestria. The witness was
a member of the Parliamentary Committee for the resolution of the Transdniestrian
problem. This committee set up an investigative team to investigate what
had occurred in 1992. In 1995 a few meetings were held with parliamentarians
from Transdniestria. In 2000 yet again a special Committee for dealing
with the Transdniestrian problem was created. A few meetings were held
in 2001, but none in 2002 unfortunately. The witness stated that he had
high hopes for the success of the initiative taken by the OSCE Mission,
with the participation of the Ukraine and Russia. He welcomed the statement
by President Voronin and the draft settlement that had been worked out.
944. The witness took part in drafting the law on Gagauzia,
which conferred an autonomous status on this region in 1994. There was
no military conflict between Gagauzia and Moldova, and Moldova hoped that
it would be possible to solve the conflict with Transdniestria in the same
way. But the war in 1992 in Transdniestria caused hundreds of deaths on
both sides and time was needed to heal such deep wounds. The witness thought
that if politicians on both sides were now willing to take a step forward,
this problem could be solved within a short time.
945. Since the end of 1990 there had been a separate
judicial system in Transdniestria. None of the judgments delivered by the
courts in Transdniestria was recognised by the judiciary in Moldova. The
conviction of Mr Ilascu and his group was quashed but their case has never
been examined by the courts in Moldova.
946. The witness underlined that Transdniestria exists
de facto as a sovereign State, with its own legislation, its own judiciary
and its own processes for the execution of judgments. It had recently created
a Constitutional Court. He pointed out that Russia had always insisted
on preserving the territorial integrity of Moldova as it existed in 1997,
which was confirmed by the Agreements with Russia.
The witness was of the opinion that there was no responsibility
on the part of the Russian Federation for the events being considered by
the Court. The relations between Russia and Transdniestria were tense.
The administration of Transdniestria had never met the President or Prime
Minister of the Russian Federation, whereas the Moldovan President and
Moldovan Ministers had gone to Transdniestria.
947. Referring to the influence other countries have over
Transdniestria, the witness emphasised that Transdniestria was a free market
place. Its most stable source of investment was German capital but that
there was also some Belgian investment in local enterprises. According
to the Transdniestrians, their currency was printed in Germany.
948. Moldova provides the telecommunications system for
Transdniestria. There is one single “space” for telecommunications in Moldova.
But in Transdniestria they have their own telecommunications company, and
it is to this company that Transdniestrian people pay their telephone bill.
It is only cellular telephones that do not work in Tiraspol. The Moldovan
football championship includes Transdniestria. Indeed, the current football
champion of Moldova is Tiraspol and they have a fine football stadium in
Tiraspol. The Moldovan national football team was going to play the Netherlands
on 1 April 2003 in the Tiraspol stadium. Transdniestria is therefore essentially
a political problem.
949. In November 1990 Parliament adopted a decision as
regards the taking of measures to stabilise the social and economic situation
in Moldova. This decision condemned any attempts to resolve inter-ethnic
disputes by force. The witness worked for the department preparing the
relevant bills. An inter-ethnic department was created in the Government.
Its brief was to protect national minorities. A Law was adopted in 2001.
But, previously, a grave problem had existed in Moldova as regards ethnic
minorities.
43. Pavel CREANGA
950. The witness was Deputy Minister of Defence in May/June
1992. He was then Minister of Defence from 1992 until 1997. At the time
of giving evidence he was retired. Before his service as Deputy Minister
of Defence in 1992 he had returned to Moldova in 1990 from Belarus, where
he had been an army commander. After serving as an adviser on Cuba, the
witness retired from the Soviet Army and came back home. He then took an
oath of allegiance on taking up new duties in Moldova.
From 1990 until 1992 he worked at the Military Department. From
1997 onwards he had not held any official posts.
951. After the declaration of Moldovan independence,
some people in Moldova wanted to stay part of the Soviet Union. They pursued
this objective by the creation of paramilitary troops, the so-called Popular
Guards, which became the separatist forces. Moldova could not accept this
and tried to solve the problem by peaceful means. But in 1990 it was obliged
to create battalions from reservist forces. Armed groups started to make
their appearance then. The Ministry of Defence, for its part, started doing
something in May 1992, when the witness began as Deputy Minister. He was
Deputy Minister of Defence and a member of the President’s Private Office.
He was told to open a command centre in Transdniestria in May 1992.
It was no secret that the separatists received support from Odessa
and Moscow. Moldova ceased to have control over the eastern part of the
country from the end of 1991 and the beginning of 1992.
The Moldovan armed forces in 1992 comprised approximately ten
battalions, that is, six thousand active troops on a permanent basis and
that was the position until the end of the conflict. They were made up
of troops from the Ministry of the Interior and the police, and there were
three detachments of volunteer forces. That made a total of up to six thousand
active troops. The Transdniestrian forces also numbered about six thousand.
The Russian Fourteenth Army had about twelve to fourteen thousand troops.
The Moldovan armed forces did not have the kind of equipment
that the separatists had. The Moldovan forces had one automatic weapon
for every ten people in the beginning. They did not have proper units.
The Fourteenth Army provided the separatists with equipment and
support. The officers of the Popular Guards came from the Fourteenth Army
and the Fourteenth Army was supplying them with weapons.
The witness went to see Iakovlev who told him that the Transdniestrians
had thousands of rifles. Under the guise of seizure, using children and
women, large numbers of weapons were handed over. About 30 tanks were transferred,
32 armoured personnel carriers, 24 artillery weapons, mortars, anti-tank
grenade launchers, anti-tank artillery and air defence units. The Commander
of the Fourteenth Army, General Lebed, declared on television that he had
personally called up and armed twelve thousand soldiers for the Transdniestrians
and that he personally had made the existence of their armed forces possible.
The operations of the Transdniestrian armed forces were carried out under
the control of officers of the Fourteenth Army.
The tanks that appeared on the Dniester Bridge belonged to the
Fourteenth Army. Tanks have numbers on them.
The witness stated that he had documents on the handing over
of weapons to the separatists by the Fourteenth Army and added that perhaps
the documents were still in the Ministry of Defence. One thing is a physical
handover, a transfer. A formalised transfer on the basis of official documents
is quite another thing. The separatists “seized” weapons from the Fourteenth
Army by the use of women and children. The tanks which had been seized
with the help of human shields were from the 183rd motorised infantry regiment
and other units of the Fourteenth Army. Under the disguise of a seizure
using a human shield of women and children, it was in reality a handover.
The weaponry and equipment in question could not have been part
of DOSAAF property. DOSAAF did indeed have one million bullets, but only
very light weapons. DOSAAF did not have any combat weapons at all.
952. The armed units of the Transdniestrians were better
equipped than the Moldovan units. They had tanks, whereas the Moldovans
did not have one single tank. They had more armoured cars than the Moldovans
did. The Moldovans had powerful artillery, for example the Uragan system
which is capable of travelling up to 27 km, but that was not used. Moldova
only used artillery when the Transdniestrians used tanks. The Moldovans
warned the Transdniestrians that if they used tanks, Moldova would use
artillery in response. The Moldovans also had howitzers and cannons.
953. Moldova never opened fire on villages or inhabited
areas. Not one single building was destroyed by Moldovan forces. But this
was not the sort of war the witness was prepared for in military college.
954. As to the shooting in the Tighina/Bender fortress,
when the Moldovan forces entered the city of Bender, some of the so-called
Popular Guards retreated into the fortress, in the past occupied by the
chemical defence battalion of the Fourteenth Army. Subsequently they fired,
possibly together with the chemical battalion.
955. Moldova had 122 mm ammunition and used it. The Uragan
artillery system that the Moldovans had was much more efficient than the
Grad system that the Transdniestrians had. But the Moldovans never used
the Uragan system because they knew its destructive power. If Moldova had
wanted victory at any price, it would have used the powerful Uragan system.
The Moldovan troops did have an air defence, but there was no
collective defence with the Ukraine and Romania. The Moldovan forces had
to use Mig 29 airplanes for bombing. There were armed groups on the other
side using artillery; it was not a police operation. There was only one
solution - to bomb the bridge but not the residential quarters. The intention
was to destroy the bridge in order to prevent tanks crossing it, and thereby
to prevent heavy losses on the Moldovan side. This was in Bender (Tighina).
956. The volunteer groups fighting for Moldova did not
kill other people. They were defending their country against separatists.
The Moldovan armed forces never shot at inhabited settlements.
957. Moldova did not send intelligence groups into Transdniestria.
The Moldovan forces used people they knew. They did not send anyone specifically
there to act as an intelligence agent. But they had people voluntarily
sending them information.
958. During the conflict, the Fourteenth Army was stationed
at the Tiraspol military airport. It was used by one of their squadrons.
Planes were flying in from Moscow. After the conflict, there was an agreement
which defined the rules according to which the airport was to be used.
959. At the time when the witness was Minister of Defence,
there were agreements signed between Moldova and the Russian Federation
on the withdrawal of certain units of the Fourteenth Army. The 300th parachute
regiment was withdrawn, as were a communications battalion and some other
units. These agreements also concerned the regime of the military airport
in Tiraspol and the legal status of the Russian soldiers on Moldovan territory.
