EUROPEAN COURT OF HUMAN RIGHTS
Press release issued by the Registrar
GRAND CHAMBER JUDGMENT IN THE CASE OF ILASCU AND OTHERS
v. MOLDOVA AND RUSSIA
The European Court of Human Rights has today delivered at a public hearing
its Grand Chamber judgment 1 in the
case of Ilascu and Others v. Moldova and Russia (application no. 48787/99). The
Court held
• by eleven votes to six, that the applicants came within the jurisdiction
of Moldova within the meaning of Article 1 of
the European Convention on Human Rights (State jurisdiction) as regards its
positive obligations; and
• by sixteen votes to one, that the applicants came within the jurisdiction of
Russia within the meaning of Article 1 of the
Convention;
Treatment and conditions suffered by the applicants
• by eleven votes to six, that there had been no violation of Article 3 (prohibition
of torture and inhuman or degrading
treatment or punishment) by Moldova on account of the ill-treatment inflicted
on Mr Ila?cu and the conditions in which
he was detained while under the threat of execution;
• by sixteen votes to one, that there had been a violation of Article 3 (prohibition
of torture) by Russia on account of the
ill-treatment inflicted on Mr Ilascu and the conditions in which he was
detained while under the threat of execution;
• by eleven votes to six, that there had been a violation of Article 3 (prohibition
of torture) by Moldova since May 2001
on account of the ill-treatment inflicted on Mr Ivansoc and the conditions in
which he had been detained;
• by sixteen votes to one, that there had been a violation of Article 3 (prohibition
of torture) by Russia on account of the
ill-treatment inflicted on Mr Ivansoc and the conditions in which he had been
detained;
• by eleven votes to six, that there had been a violation of Article 3 (prohibition
of inhuman and degrading treatment) 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 had been detained;
• by sixteen votes to one, that there had been a violation of Article 3 (prohibition
of inhuman and degrading treatment)
by Russia on account of the ill-treatment inflicted on Mr Lesco and Mr
Petrov-Popa and the conditions in which they
had been detained;
Deprivation of liberty
• by eleven votes to six, that there had been no violation of Article 5 of
the Convention (right to liberty and security) by
Moldova on account of Mr Ilascu’s detention;
• by eleven votes to six, that there had been and continued to be a violation
of Article 5 of the Convention by Moldova
on account of the detention of Mr Ivansoc, Mr Lesco and Mr Petrov-Popa after
May 2001;
• by sixteen votes to one, that there had been a violation of Article 5 by
Russia as regards Mr Ilascu until May 2001 and
that there had been and continued to be a violation of Article 5 as regards Mr
Ivansoc, Mr Lesco and Mr Petrov-Popa;
The Court further held
• unanimously, that there was no cause to examine separately the complaint
of a violation of Article 2 (right to life) on
account of the fact that Mr Ilascu was sentenced to death;
• unanimously, that there was no cause to examine separately the complaint
under Article 8 (right to respect for private
and family life);
• unanimously, that it did not have jurisdiction to examine the complaint under
Article 6 of the Convention (right to a fair
trial);
• by fifteen votes to two, that there had been no violation of Article 1 of
Protocol No. 1 (protection of property)
• by sixteen votes to one, that Moldova and Russia had failed to discharge
their obligations under Article 34 of the
Convention (individual applications).
Under Article 41 of the Convention (just satisfaction), the Court held
• by ten votes to seven, that Moldova was to pay Mr Ivansoc, Mr Lesco and Mr
Petrov-Popa 60,000 euros (EUR) each
for pecuniary and non-pecuniary damage, EUR 3,000 to each applicant for
non-pecuniary damage arising from the
breach of Article 34 and an overall sum of EUR 7,000 for costs and expenses,
less EUR 1,321.34 already received in
legal aid;
• By sixteen votes to one, that Russia was to pay EUR 180,000 to Mr Ilascu and
EUR 120,000 to each of the other
applicants for pecuniary and non-pecuniary damage, EUR 7,000 to each applicant
for non-pecuniary damage arising
from the breach of Article 34 and an overall sum of EUR 14,000 for costs and
expenses, less EUR 2,642.66 already
received in legal aid.
The Court further held, unanimously, that Moldova and Russia were to take
all the necessary steps to put an end to the
arbitrary detention of the applicants still imprisoned and secure their
immediate release.
(The judgment is available in English and in French).
1. Principal facts
The applicants, Ilie Ilascu, Alexandru Lesco, Andrei Ivansoc and Tudor
Petrov-Popa, who were Moldovan nationals at
the time when the application was lodged, were born in 1952, 1955, 1961 and
1963 respectively. Mr Ilascu acquired
Romanian nationality in 2000, as did Mr Lesco and Mr Ivansoc in 2001. The
applicants, with the exception of Mr
Ilascu and Mr Lescu, who were released in May 2001 and June 2004 respectively,
are currently detained in the
“Moldavian Republic of Transdniestria” (“the MRT”), a region of Moldova known
as Transdniestria, which declared its
independence in 1991.
At the material time Mr Ilascu was the local leader of the Popular Front and
was working towards the unification of
Moldova with Romania. He was twice elected to the Moldovan Parliament and was
appointed as a member of the
Moldovan delegation to the Parliamentary Assembly of the Council of Europe. 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.
Between 2 and 4 June 1992 the applicants were arrested at their homes in
Tiraspol by a number of people, some of
whom were wearing uniforms bearing the insignia of the former USSR’s Fourteenth
Army. They were accused of
anti-Soviet activities and illegally combating the legitimate government of the
State of Transdniestria, under the direction
of the Moldovan Popular Front and Romania. They were also charged with a number
of offences which included two
murders. On 9 December 1993 the “Supreme Court of the MRT” sentenced Mr Ilascu
to death and ordered the
confiscation of his property. The other applicants were sentenced by the same
court to terms of 12 to 15 years’
imprisonment, and their property was likewise ordered to be confiscated.
2. Procedure and composition of the Court
The application was lodged on 14 June 1999. On 20 March 2001 the Chamber to
which the case had been allocated
relinquished jurisdiction in favour of the Grand Chamber (Article 30 of the
Convention). The Grand Chamber decided
to hold a hearing on the admissibility and merits of the application, and the
President invited the Romanian Government
to take part. By a decision of 4 July 2001 the application was declared partly
admissible, after a hearing had been held
on 6 June 2001. A delegation of the Court conducted an on-the-spot
investigation in Chisinsu and Tiraspol from 10 to
15 March 2003.
Judgment was given by the Grand Chamber of 17 judges, composed as follows:
Luzius Wildhaber (Swiss), President,
Christos Rozakis (Greek),
Jean-Paul Costa (French),
Georg Ress (German),
Nicolas Bratza (British),
Loukis Loucaides (Cypriot),
Ireneu Cabral Barreto (Portuguese)
Fransoise Tulkens (Belgian),
Corneliu Bsrsan (Romanian),
Josep Casadevall (Andorran),
Bostjan Zupansis (Slovenian),
John Hedigan (Irish)
Wilhelmina Thomassen (Netherlands),
Tudor Panssru (Moldovan),
Egil Levits (Latvian)
Anatoli Kovler (Russian),
Elisabet Fura-Sandstrsm (Swedish), judges,
and also Paul Mahoney, Registrar.
3. Summary of the judgment 2
Complaints
The applicants complained of a violation of Article 6 of the Convention on
the grounds that the court which had
convicted them did not have jurisdiction and that, at all events, the
proceedings which had led to their conviction had not
been fair. They also complained, under Article 1 of Protocol No. 1 to the
Convention, of the confiscation of their
possessions, and maintained that their detention had been unlawful, contrary to
Article 5. Mr. Ilascu further complained
of a violation of Article 2 on account of his being sentenced to death. All the
applicants complained in addition of the
conditions of their detention, relying expressly on Articles 3 and 8 and, in
substance, Article 34.
They submitted that the Moldovan authorities were responsible for the
violations they alleged since they had not taken
adequate measures to put a stop to them. In their submission, the Russian
Federation shared that responsibility as the
territory of Transdniestria was under Russia’s de facto control owing to the
stationing of its troops and military
equipment there and the support it gave to the separatists.
Decision of the Court
Article 1
As regards Moldova
On the basis of all the material in its possession, the Court considered
that the Moldovan Government, the only
legitimate government of the Republic of Moldova under international law, did
not exercise authority over part of its
territory, namely that part which was under the effective control of the “MRT”.
However, even in the absence of
effective control over the Transdniestrian region, Moldova still had a positive
obligation under Article 1 of the
Convention to take the measures that it was in its power to take and were in
accordance with international law to secure
to the applicants the rights guaranteed by the Convention.
Consequently, the applicants were within the jurisdiction of the Republic of
Moldova for the purposes of Article 1, but
its responsibility for the acts complained of was to be assessed in the light
of its positive obligations under the
Convention. These related 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.
As regards the applicants’ situation, the Court noted that before
ratification of the Convention in 1997 and even after
that date the Moldovan authorities had taken a number of measures to secure the
applicants’ rights. On the other hand,
it did not have any evidence that since Mr Ilascu’s release in May 2001
effective measures had been taken to put an end
to the continuing infringements of their Convention rights complained of by the
other applicants. In their bilateral
relations with the Russian Federation the Moldovan authorities had not been any
more attentive to the applicants’ fate;
the Court had not been informed of any approach by the Moldovan authorities to
the Russian authorities after May 2001
aimed at obtaining the remaining applicants’ release.
Even after Mr Ilascu’s release in May 2001, it had been within the power of
the Moldovan Government to take
measures to secure to the applicants their rights under the Convention. The
Court accordingly concluded that Moldova’s
responsibility was capable of being engaged on account of its failure to
discharge its positive obligations with regard to
the acts complained of which had occurred after May 200
As regards Russia
During the Moldovan conflict in 1991-92 forces of the former Fourteenth Army
(which had owed allegiance to the
USSR, the CIS and the Russian Federation in turn) stationed in Transdniestria,
had fought with and on behalf of the
Transdniestrian separatist forces. Large quantities of weapons from the stores
of the Fourteenth Army had been
voluntarily transferred to the separatists, who had also been able to seize
possession of other weapons unopposed by
Russian soldiers. In addition, throughout the clashes between the Moldovan
authorities and the Transdniestrian
separatists the Russian leaders had supported the separatist authorities by
their political declarations.
The Russian authorities had therefore contributed both militarily and
politically to the creation of a separatist regime in
the region of Transdniestria, part of the territory of the Republic of Moldova.
Even after the ceasefire agreement of 21
July 1992 Russia had continued to provide military, political and economic
support to the separatist regime, thus
enabling it to survive by strengthening itself and by acquiring a certain
amount of autonomy vis-s-vis Moldova. 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, were
capable of engaging responsibility for the consequences of the acts of that
regime.
The Russian army was still stationed in Moldovan territory in breach of the
undertakings to withdraw them completely
given by Russia at the OSCE summits in 1999 and 2001. Both before and after 5
May 1998, when the Convention
came into force with regard to Russia, 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. All of the above proved that the “MRT” remained under the effective
authority, or at the very least under the
decisive influence, of Russia, and in any event that it survived by virtue of
the military, economic, financial and political
support that Russia gave it.
That being so, the Court considered that there was a continuous and
uninterrupted link of responsibility on the part of
Russia for the applicants’ fate, as its policy of support for the regime and
collaboration with it had continued beyond 5
May 1998, and after that date Russia had made no attempt to put an end to the
applicants’ situation brought about by its
agents and had not acted to prevent the violations allegedly committed. The
applicants therefore came within the
“jurisdiction” of Russia and its responsibility was engaged with regard to the
acts complained of.
The Court’s jurisdiction
The Court observed that the Convention had come into force with regard to
Moldova on 12 September 1997 and with
regard to Russia on 5 May 1998. It pointed out that the Convention applied only
to events subsequent to its entry into
force with regard to the Contracting States concerned. Consequently, the Court
did not have jurisdiction to examine the
complaint under Article 6 and had jurisdiction to examine those under Articles
3, 5 and 8 only in so far as they
concerned events subsequent to the dates on which the Convention had entered
into force with regard to Moldova and
Russia. Lastly, the Court had jurisdiction to examine Mr Ilascu’s complaint
under Article 2.
Article 2
Since Mr Ilascu had been released and was now living with his family in
Romania, the Court considered that the risk of
enforcement of the death penalty imposed on him was more hypothetical than real.
On the other hand, it was 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. That being so, the Court considered that the facts
complained of by Mr Ilascu did not call for
a separate examination under Article 2 of the Convention, but would be more
appropriately examined under Article 3
instead.
Article 3
As regards Mr Ilascu
During the very long period he had spent on “death row” the applicant had
lived in the constant shadow of death, in fear
of execution. Unable to exercise any remedy, he had 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. The
anguish and suffering he felt had been aggravated by the fact that the sentence
had no legal basis or legitimacy for
Convention purposes. The “Supreme Court of the MRT” which had passed sentence
on Mr Ilascu had been set up by
an entity which was illegal under international law and had not been recognised
by the international community. That
“court” belonged to a system which could hardly be said to function on a
constitutional and legal basis reflecting a
judicial tradition compatible with the Convention. That was evidenced by the
arbitrary nature of the circumstances in
which the applicants had been tried and convicted, as they had described them
in an account which had not been
disputed by the other parties and as described and analysed by the institutions
of the OSCE.
As regards the applicant’s conditions of detention while on death row, the
Court noted that Mr Ilascu had been detained
for eight years in very strict isolation: he had 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 had been unheated, even in severe winter conditions, and had had no
natural light source or ventilation. Mr
Ilascu had also been deprived of food as a punishment, and, given the
restrictions on receiving parcels, even the food he
received from outside had often been unfit for consumption. He had been able to
take showers only very rarely, often
having to wait several months between one and the next. On that subject the
Court referred to the report of the
Committee for the Prevention of Torture following its visit to Transdniestria
in 2000, in which it had described isolation
for so many years as indefensible.
The applicant’s conditions of detention had had deleterious effects on his
health, which had deteriorated in the course of
the many years he had spent in prison; he had not received proper care, having
been deprived of regular medical
examinations and treatment and dietetically appropriate meals. The Court noted
with concern the existence of rules
authorising discretion in relation to correspondence and prison visits, on the
part of both prison warders and other
authorities, and emphasised that such rules were 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 had made the applicant’s conditions of detention even more difficult.
The death sentence imposed on the applicant, coupled with the conditions he
had been living in and the treatment he had
suffered during his detention had been particularly serious and cruel and must
accordingly be considered acts of torture
within the meaning of Article 3. As Mr Ilascu had been detained at the time
when the Convention came into force with
regard to Russia, the latter was responsible for his conditions of detention,
the treatment inflicted on him and the
suffering caused to him in prison. Mr Ilascu had been released in May 2001 and
it was only from that date on that
Moldova’s responsibility was engaged for failure to discharge its positive
obligations. Consequently, there had been a
violation of Article 3 by Russia but not by Moldova.
As regards Mr Ivansoc
In the light of all the information at its disposal, the Court considered
that it could take it as established that during the
applicant’s detention he had received a large number of blows and other
ill-treatment, and that at times he had been
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 drew attention to the
persecution and ill-treatment to which he had been
subjected in May 1999 after lodging his application to the Court.
In addition, Mr Ivansoc had been detained since his conviction in 1993 in
solitary confinement, without contact with
other prisoners and without access to newspapers. He was 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 saw fit to give it. All these restrictions, which had no legal basis and
were left to the authorities’ discretion, were
incompatible with a prison regime in a democratic society and had played their
part in increasing the applicant’s distress
and mental suffering. He had been detained in an unheated, badly ventilated
cell without natural light, and had not
received the treatment required by his state of health, despite a few medical
examinations authorised by the prison
authorities.
Taken as a whole, and regard being had to its seriousness, its repetitive
nature and its purpose, the treatment inflicted on
Mr Ivansoc had caused “severe” pain and suffering, had been particularly
serious and cruel and had constituted acts of
torture within the meaning of Article 3. As Mr Ivansoc had been detained at the
time when the Convention came into
force with regard to the Russian Federation, the latter was responsible on
account of his conditions of detention, the
treatment inflicted on him and the suffering caused to him in prison. There had
therefore been a violation of Article 3 by
Russia and by Moldova.
As regards Mr Lesco and Mr Petrov-Popa
The Court considered that it could take it as established that during their
detention Mr Lesco and Mr Petrov-Popa had
experienced extremely harsh conditions of detention (visits and parcels from
their families subject to the discretionary
authorisation of the prison administration; deprivation of food at times, or
distribution of food unfit for consumption,
deprivation most of the time of all forms of appropriate medical assistance
despite their state of health, which had been
weakened by these conditions of detention; lack of the dietetically appropriate
meals prescribed by their doctors). These
conditions had deteriorated since 2001.
In addition, Mr Petrov-Popa had been held in solitary confinement since 1993,
having no contact with other prisoners or
access to newspapers in his own language. Both Mr Petrov-Popa and Mr Lesco had
been denied access to a lawyer
until June 2003.
Such treatment was apt to engender pain or suffering, both physical and
mental. Taken as a whole, and regard being had
to its seriousness, it could be termed inhuman and degrading treatment within
the meaning of Article 3. As Mr Lesco
and Mr Petrov-Popa had been detained at the time when the Convention came into
force with regard to Russia, the
latter was responsible for their conditions of detention, the treatment
inflicted on them and the suffering caused to them
in prison. There had therefore been a violation of Article 3 by Russia and by
Moldova.
Article 5
Referring to its conclusions under Article 3 regarding the nature of the
proceedings in issue, the Court found that none of
the applicants had been 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 could not be
regarded as “lawful detention” ordered “in accordance with a procedure
prescribed by law”. That being so, the
deprivation of liberty suffered by the applicants could not satisfy the
conditions laid down in paragraph 1 (a) of Article 5
of the Convention. It followed that there had been a violation of Article 5 § 1
of the Convention until May 2001 as
regards Mr Ilascu, and that there had been and continued to be a violation of
that provision as regards the applicants still
detained.
Having regard to the fact that the applicants were detained at the time of
the Convention’s entry into force with regard
to Russia, the Court concluded that the conduct constituting a violation of
Article 5 was imputable to the Russian
Federation as regards all the applicants. Taking into account its conclusion
that the responsibility of the Republic of
Moldova by virtue of its positive obligations was engaged from May 2001, the
Court concluded that there had been no
violation of Article 5 by Moldova as regards Mr Ilascu, but a violation of that
provision as regards the other applicants.
Article 8
The applicants’ complaint was limited to the fact that it was impossible to
write freely to their families and the Court
from prison and to the difficulties they had encountered in receiving visits
from their families. As to the complaint
relating to the impossibility of applying to the Court from prison, this fell
more naturally under Article 34, which the
Court was to examine separately. However, having taken these allegations into
account in the context of Article 3, the
Court considered that it was not necessary to examine them separately from the
standpoint of Article 8.
Article 1 of Protocol No. 1
Even on the supposition that it had jurisdiction to rule on this complaint,
the Court noted that it had not been
substantiated, and therefore concluded that there had been no violation of the
provision relied on.
Article 34
The Court noted that the applicants had asserted that they had not been able
to apply to it from their place of detention
and that their application, which had been signed by their wives, had been
lodged by the only lawyer who was
representing them at the beginning of the proceedings. It further noted the
threats made against the applicants by the
Transdniestrian prison authorities and the deterioration in their conditions of
detention after their application was lodged.
Such acts constituted an improper and unacceptable form of pressure which had
hindered their exercise of the right of
individual petition.
In addition, the Court noted with concern the content of a note of April
2001 sent by Russia to the Moldovan
authorities, from which it appeared that the Russian authorities had requested
Moldova to withdraw the observations it
had submitted to the Court in October 2000 in so far as these implied
responsibility on the part of Russia on account of
the fact that its troops were stationed in Moldovan territory, in
Transdniestria. At the hearing on 6 June 2001 the
Moldovan Government had declared that it wished to withdraw the part of its
observations concerning Russia. Such
conduct on the part of the Russian Government 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 the Court’s 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 had therefore been a breach by Russia
of Article 34 of the Convention.
The Court further noted that after Mr Ilascu’s release he had spoken to the
Moldovan authorities about the possibility of
obtaining the release of the other applicants, and that in that context Mr
Voronin, the President of Moldova, had publicly
accused Mr Ilascu of being the cause of his comrades’ continued detention,
through his refusal to withdraw his
application against Moldova and Russia. 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, represented direct pressure intended to hinder exercise of
the right of individual petition. That
conclusion held good whatever the real or theoretical influence that authority
might have on the applicants’ situation.
Consequently, Mr Voronin’s remarks amounted to an interference by Moldova with
the applicants’ exercise of their
right of individual petition, in breach of Article 34.
Judge Casadevall expressed a partly dissenting opinion, joined by Judges
Ress, Tulkens, Bsrsan and Fura-Sandstrsm.
Judges Ress and Loucaides each expressed a partly dissenting opinion. Judge
Bratza expressed a partly dissenting
opinion, joined by Judges Rozakis, Hedigan, Thomassen and Pansiru. Judge Kovler
expressed a dissenting opinion.
These opinions are annexed to the judgment.
