Last Updated on November 30, 2021 by LawEuro
The case is about the applicant’s compulsory military service in the self-proclaimed “Moldovan Republic of Transdniestria” (the “MRT” – see for more details Ilașcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 28-185, ECHR 2004-II). He complains that his military service constituted forced labour and amounted to unlawful detention. He also complains about the lack of effective remedies in respect of his other complaints.
SECOND SECTION
CASE OF GOLUB v. THE REPUBLIC OF MOLDOVA AND RUSSIA
(Application no. 48020/12)
JUDGMENT
STRASBOURG
30 November 2021
This judgment is final but it may be subject to editorial revision.
In the case of Golub v. the Republic of Moldova and Russia,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Carlo Ranzoni, President,
Egidijus Kūris,
Pauliine Koskelo, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no. 48020/12) against the Republic of Moldova and Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Nikolay Golub (“the applicant”), on 18 July 2012;
the decision to give notice to the Moldovan and Russian Governments (“the Governments”) of the complaints concerning Articles 4, 5 and 13 of the Convention and of Article 2 of Protocol No. 4 of the Convention and to declare inadmissible the remainder of the application;
the parties’ observations;
the Russian Government’ s objection to the examination of the application by a Committee and to the Court’ s decision to reject it;
Having deliberated in private on 9 November 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case is about the applicant’s compulsory military service in the self-proclaimed “Moldovan Republic of Transdniestria” (the “MRT” – see for more details Ilașcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 28-185, ECHR 2004-II). He complains that his military service constituted forced labour and amounted to unlawful detention. He also complains about the lack of effective remedies in respect of his other complaints.
THE FACTS
2. The applicant was born in 1993 and lives in Lunga. The applicant was represented by Mr A. Postică, lawyer practising in Chișinău.
3. The respondent Governments were represented by their Agents.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. In September 2011 the applicant was called up for compulsory military service in the “MRT”. As the sole caretaker of his disabled mother, the applicant was entitled under the “MRT” law to the deferral of his conscription. Nevertheless, the applicant and his mother opted for the enrolment in a military education institution in the “MRT”, under the authority of the “MRT” Ministry of Defence, which allowed him to obtain an education diploma and counted as military service.
6. As a cadet, the applicant’s passport was taken away and he was issued a recruit card. He was not allowed to leave the premises of the military institute without the authorisation of the commander.
7. In November 2011 he left the premises of the military institute on several occasions to seek medical treatment after having been allegedly ill‑treated or to care for his mother. Upon his return, from 17 to 24 November 2011 he was disciplined for absence without leave and placed in isolation in the Tiraspol Military Command.
8. During his stay in the Tiraspol Military Command, the applicant was held in a cell with eight other persons and could leave the cell only once per day to use the toilet.
9. On 2 December 2011 a criminal investigation was initiated by the “MRT” authorities against the applicant on charges of absence without leave. It was discontinued on 27 January 2012 on non-rehabilitation grounds.
10. On 20 December 2011 the applicant was excluded from the military institute for lack of discipline and unwillingness to continue his military education. He was sent to the “MRT military unit no. 40896” in Dubăsari to complete the compulsory military service.
11. On 25 December 2011 the applicant left the military unit for an authorised leave but returned several hours past the authorised time. According to the applicant, as an informal sanction he was requested to dig a trench and because he refused, he was disciplined and placed in isolation from 26 December 2011 to 9 January 2012 in the prison of the military unit (“гауптвахта”).
12. On 25 February 2012 the “MRT” Minister of Defence granted the applicant’s request for early dismissal from military service as the sole caretaker of his disabled mother and placed him in the reserve of the “MRT” army. On 27 February 2012 the applicant was informed about this order and left the military unit.
13. On 17 May 2012 the applicant complained to the Moldovan and Russian Prosecutor General’s Offices about his unlawful deprivation of liberty.
14. On 9 and 22 June 2012, respectively, the Russian Military prosecutor informed the applicant about having redirected his complaint to the Moldovan and the “MRT” authorities.
15. On 19 June 2012 the Moldovan Prosecutor General’s Office informed the applicant that a criminal investigation into his unlawful detention had been initiated the same day. On 17 August 2012 the investigation was suspended until the identification of the perpetrators.
RELEVANT MATERIALS
16. The relevant materials have been summarised in Mozer v. the Republic of Moldova and Russia [GC] (no. 11138/10, §§ 61-77, 23 February 2016).
THE LAW
I. ADMISSIBILITY
A. Jurisdiction
17. The Court must determine whether the applicant falls within the jurisdiction of the respondent States for the purposes of the matters complained of, within the meaning of Article 1 of the Convention.
18. The applicant submitted that in light of the Court’s constant case-law both respondent Governments had jurisdiction.
19. The Moldovan Government submitted that they had positive obligations to secure the applicant’s rights and the Russian Federation had jurisdiction due to their continuous military presence in the region.
20. For their part, the Russian Government argued that the applicant did not fall within their jurisdiction.
21. The Court notes that the parties in the present case maintain views on the issue of jurisdiction which are similar to those expressed by the parties in Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04 and 2 others, §§ 83-101, ECHR 2012 (extracts)) and in Mozer (cited above, §§ 81‑95). In particular, the applicant and the Moldovan Government submitted that both respondent Governments had jurisdiction, while the Russian Government submitted that they had no jurisdiction.
22. The Court recalls that the general principles concerning the issue of jurisdiction under Article 1 of the Convention in respect of actions and facts pertaining to the Transdniestrian region of Moldova were set out in Ilaşcu and Others (cited above, §§ 311-319), Catan and Others (cited above, §§ 103-107) and Mozer (cited above, §§ 97-98).
23. In so far as the Republic of Moldova is concerned, the Court notes that in Ilaşcu, Catan and Mozer it found that although Moldova had no effective control over the Transdniestrian region, it followed from the fact that Moldova was the territorial State and that persons within that territory fell within its jurisdiction. However, its obligation, under Article 1 of the Convention, to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention was limited to that of taking the diplomatic, economic, judicial and other measures that were both in its power and in accordance with international law (see Ilaşcu and Others, cited above, § 333; Catan and Others, cited above, § 109; and Mozer, cited above, § 100). Moldova’s obligations under Article 1 of the Convention were found to be positive obligations (see Ilaşcu and Others, cited above, §§ 322 and 330-331; Catan and Others, cited above, §§ 109-110; and Mozer, cited above, § 99).
24. The Court sees no reason to distinguish the present case from the above-mentioned cases. Besides, it notes that the Moldovan Government do not object to applying a similar approach in the present case. Therefore, it finds that Moldova has jurisdiction for the purposes of Article 1 of the Convention, but that its responsibility for the acts complained of is to be assessed in the light of the above-mentioned positive obligations (see Ilaşcu and Others, cited above, § 335).
25. The Court notes that in Ilașcu and Others it has already found that the Russian Federation contributed both militarily and politically to the creation of a separatist regime in the region of Transdniestria in 1991-1992 (see Ilaşcu and Others, cited above, § 382). The Court also found in subsequent cases concerning the Transdniestrian region that up until at least September 2016 (Eriomenco v. the Republic of Moldova and Russia, no. 42224/11, § 72, 9 May 2017), the “MRT” was only able to continue to exist, and to resist Moldovan and international efforts to resolve the conflict and bring democracy and the rule of law to the region, because of Russian military, economic and political support (see Ivanţoc and Others v. Moldova and Russia, no. 23687/05, §§ 116‑120, 15 November 2011; Catan and Others, cited above, §§ 121-122; and Mozer, cited above, §§ 108 and 110). The Court concluded in Mozer that the “MRT”‘s high level of dependency on Russian support provided a strong indication that the Russian Federation continued to exercise effective control and a decisive influence over the Transdniestrian authorities and that, therefore, the applicant fell within that State’s jurisdiction under Article 1 of the Convention (Mozer, cited above, §§ 110-111).
26. The Court sees no grounds on which to distinguish the present case from Ilașcu and Others, Ivanţoc and Others, Catan and Others, Mozer and Eriomenco (all cited above).
27. It follows that the applicant in the present case fell within the jurisdiction of the Russian Federation under Article 1 of the Convention.
28. The Court will hereafter determine whether there has been any violation of the applicant’s rights under the Convention such as to engage the responsibility of either respondent State (see Mozer, cited above, § 112).
B. Exhaustion of domestic remedies
29. The Moldovan Government submitted that the applicant had failed to exhaust the remedies available to him in Moldova without referring to any concrete remedy. They argued therefore that the part of the application concerning Moldova should be declared inadmissible for failure to exhaust domestic remedies in Moldova.
30. The Russian Government also submitted that the application should be rejected for failure to exhaust domestic remedies before either Moldovan courts or Russian courts.
31. The applicant contended that there were no effective remedies which needed to be exhausted in either State.
32. The Court notes that a similar objection was raised by the Moldovan Government and dismissed by the Court in Mozer (cited above, §§ 115‑121), and by both Governments and dismissed in the cases of Vardanean v. the Republic of Moldova and Russia (no. 22200/10, §§ 27 and 31, 30 May 2017) and Bobeico and Others v. the Republic of Moldova and Russia (no. 30003/04, § 39, 23 October 2018). Since neither of the Governments specified the domestic remedies which the applicant should have exhausted and no new arguments have been adduced, the Court sees no reason to reach a different conclusion in this case. It follows that the Governments’ objections on non-exhaustion of domestic remedies must be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION
33. The applicant complained that his compulsory military service in the “MRT” constituted forced labour, contrary to Article 4 of the Convention, the relevant part of which reads as follows:
“2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this article the term ‘forced or compulsory labour’ shall not include:
…
(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
…”
34. The applicant contended that the compulsory military service in the army of an unrecognised entity constituted forced labour. His enrolment in the military education institution and his subsequent service in the Dubăsari military unit had not been voluntary because draft evasion was a criminal offence in the “MRT”. Because the service was in the military structure of an unrecognised entity it did not fall under the exception of Article 4 § 3 (b) of the Convention and was therefore prohibited under Article 4 § 2 of the Convention.
35. The Moldovan Government submitted that the applicant had voluntarily enrolled in the military education institution when he could have obtained an exemption from compulsory military service as the sole caregiver of his disabled mother. However, the Moldovan Government did not recognise the legal obligation to perform military service in the self‑proclaimed “MRT” and argued that such service did not correspond to the exception under Article 4 § 3 (b) of the Convention. In any event, the Moldovan Government contended that they had fulfilled their positive obligations in respect of the applicant.
36. The Russian Government made no specific submissions.
37. The Court reiterates its case-law on Article 4 of the Convention (Van der Mussele v. Belgium, 23 November 1983, §§ 32, 34 et 38, Series A no. 70; Siliadin v. France, no. 73316/01, §§ 112, 115 and 116, ECHR 2005‑VII; Stummer v. Austria [GC], no. 37452/02, §§ 116-118 and 120, ECHR 2011; and Chitos v. Greece, no. 51637/12, § 79, ECHR 2015 (extracts)).
38. Even assuming that the applicant’s service in the “MRT” military was not covered by the exception under Article 4 § 3 b) of the Convention, the Court notes that in the present case it appears that the applicant had “offered himself voluntarily” for the work in question (Van der Mussele, cited above, § 39; Graziani-Weiss v. Austria, no. 31950/06, § 38, 18 October 2011; C.N. and V. v. France, no. 67724/09, §§ 71 and 76, 11 October 2012; and Chitos, cited above, §§ 88 and 96).
39. In particular, the Court notes that under the “MRT” law an individual generally risked imprisonment for draft evasion if he did not carry out compulsory military service (see Aslanian v. the Republic of Moldova and Russia, no. 74433/11, 22 June 2021). However, in the present case, the applicant himself submitted that he was entitled to the deferral of his conscription as the sole caretaker of his disabled mother and that it had been his and his mother’s decision to opt instead for military service through an enrolment in the military institution (see paragraph 5). Moreover, it appears from the facts of the case that once the applicant and his mother had changed their mind and had applied for an early dismissal on the same grounds, in February 2012 the applicant had been granted his request and relieved from any service (see paragraph 12).
40. For this reason, the Court concludes that the applicant’s complaint under Article 4 of the Convention is manifestly ill-founded.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION AND ARTICLE 2 OF PROTOCOL No. 4 TO THE CONVENTION
41. The applicant complained that his forced stay and the restrictions to his freedom of movement while in the military institute and the Dubăsari military unit amounted to unlawful detention and was contrary to Article 5 of the Convention, or alternatively, to Article 2 of Protocol No. 2 to the Convention.
42. The relevant part of Article 5 of the Convention reads as follows:
“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;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. …”
43. The relevant part of Article 2 of Protocol No. 4 to the Convention reads as follows:
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
…3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”
A. The parties’ submissions
44. The applicant submitted that the restrictions on his liberty varied in time. In particular, he distinguished (i) the period from 6 August to 20 December 2011, spent with the military institute, except for (ii) the period from 17 to 24 November 2011 spent in the Tiraspol Military Command, and (iii) the period from 20 December 2011 to 27 February 2012 spent with the Dubăsari military unit. The applicant argued that Article 2 of Protocol No. 4 to the Convention applied in respect of period (i), while Article 5 of the Convention applied to periods (ii) and (iii). The applicant submitted that all restrictions in respect of his freedom were unlawful because they were ordered by the unrecognised authorities of the “MRT”. He further argued that he had not consented to such restrictions since military service was compulsory and his enrolment in the military institute was the only option to avoid military service without punishment.
45. The Moldovan Government distinguished between (i) the periods from 17 to 24 November 2011, spent in the Tiraspol Military Command and from 26 December 2011 to 9 January 2012, spent in the prison of the Dubăsari military unit, and (ii) the rest of the applicant’s “military service”. They argued that Article 2 of Protocol No. 4 to the Convention was applicable in respect of the period (ii) but that there was no violation of that provision because the applicant had consented to such restrictions when he had opted for military service instead of deferral. However, Article 5 of the Convention was applicable to the periods (i), to which the applicant could not have consented and that there was a violation of that provision because the applicant’s deprivation of liberty had been ordered by unrecognised authorities. The Moldovan authorities fulfilled their positive obligations by initiating a criminal investigation into the applicant’s unlawful deprivation of liberty.
46. The Russian Government made no specific submissions.
B. The Court’s assessment
47. The Court reiterates that the difference between restrictions on movement serious enough to fall within the ambit of a deprivation of liberty under Article 5 § 1 and mere restrictions of liberty which are subject only to Article 2 of Protocol No. 4 is one of degree or intensity, and not one of nature or substance (Ilias and Ahmed v. Hungary [GC], no. 47287/15, § 212, 21 November 2019). In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see Engel and Others v. the Netherlands, 8 June 1976, §§ 58-59, Series A no. 22; Guzzardi v. Italy, 6 November 1980, § 92, Series A no. 39; and Riera Blume and Others v. Spain, no. 37680/97, § 28, ECHR 1999‑VII; De Tommaso v. Italy [GC], no. 43395/09, § 80, 23 February 2017).
48. Applying these principles to the facts of the present case, the Court notes that during most of his stay with the military institute and in the Dubăsari military unit, the applicant was free to move around the military institute and the military unit, as well as to leave and return albeit with restrictions (see paragraphs 6, 7 and 11). However, when the applicant had been sanctioned for absence without leave, he was held in a confined space for a determined period of time in prison-like conditions (see paragraphs 8 and 11).
49. For this reason, the Court distinguishes the time spent by the applicant in disciplinary detention – from 17 to 24 November 2011 and from 26 December 2011 to 9 January 2012 (see paragraphs 7 and 11) – to which Article 5 of the Convention is applicable, from the rest of his stay at the military institute and in the military unit, to be examined under Article 2 of Protocol No. 4 to the Convention.
1. Complaint under Article 5 of the Convention
50. The Court observes that the alleged violation of the applicant’s rights under Article 5 of the Convention ended with his release on 24 November 2011 and 9 January 2012 respectively and did not give rise to a continuous situation (Sabri Güneş v. Turkey ([GC], no. 27396/06, § 54, 29 June 2012). The applicant submitted his application on 18 July 2012, which is more than six months after his release on both occasions. It follows that the complaint under Article 5 of the Convention is inadmissible for non‑compliance with the six‑month rule set out in Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4 of the Convention.
2. Complaint under Article 2 of Protocol No. 4 to the Convention
51. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and it is not inadmissible on any other grounds. It must therefore be declared admissible.
52. The Court notes at the outset the Moldovan Government’s argument that the applicant had forfeited his rights under Article 2 § 2 of Protocol No. 4 by enrolling voluntarily in the service which implied a restriction of his freedom of movement.
53. The Court has previously examined situations in which the applicants were said to have waived their rights under the Convention (see, among many other authorities, Correia de Matos v. Portugal [GC], no. 56402/12, § 128, 4 April 2018 in respect of Article 6 of the Convention; Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 103-110, 5 July 2016 in respect of Article 5 of the Convention; Eweida and Others v. the United Kingdom, nos. 48420/10 and 3 others, § 83, ECHR 2013 (extracts) in respect of Article 9; Berkovich and Others v. Russia, nos. 5871/07 and 9 others, § 97, 27 March 2018 in respect of Article 2 of Protocol No. 2 to the Convention). Outside the context of non‑derogable rights and of procedural rights, the Court took the approach to weigh the applicant’s alleged waiver of rights when considering the proportionality of the restriction rather than negating any interference with the relevant right (see in respect of freedom of religion Eweida and Others, cited above, § 83; in respect of the freedom of movement Berkovich and Others, cited above, § 97). The Court sees no reason to depart from this approach.
54. In the present case, the Court notes that the applicant had his passport taken away and his movement outside the premises of the military institute and of the military unit was strictly monitored; in the absence of due authorisation any movement outside that space constituted the offence of absence without leave which was sanctioned with disciplinary detention (see paragraphs 6, 7, 9, 11 and 48).
55. The Court reiterates that Article 2 of Protocol No. 4 guarantees to any person a right to liberty of movement within a given territory and the right to leave that territory, which implies the right to travel to a country of the person’s choice to which he or she may be admitted (see Baumann v. France, no. 33592/96, § 61, ECHR 2001-V; Khlyustov v. Russia, no. 28975/05, § 64, 11 July 2013; Berkovich and Others, cited above, § 78; and Dobrovitskaya and Others v. the Republic of Moldova and Russia, nos. 41660/10 and 5 others, § 94, 3 September 2019).
56. The Court further reiterates that – unlike some other Articles of the Convention such as Article 4 § 3 (d) or Article 11 § 2 – Article 2 of Protocol No. 4 does not make any distinction between civilians and members of the armed forces. Even though the rights of military personnel may, in certain circumstances, be restricted to a greater degree than would be permissible in the case of civilians, such a restriction must in all cases be capable of achieving its protective function (see Berkovich and Others, cited above, § 97; Soltysyak v. Russia, no. 4663/05, § 53, 10 February 2011, and the case-law cited therein).
57. The Court observes that it has previously analysed restrictions of the freedom of movement imposed by the “MRT” authorities from the standpoint of the State’s negative obligations and held that they had amount to an interference with the right guaranteed under Article 2 of Protocol No. 4 to the Convention (see Dobrovitskaya and Others, cited above, §§ 94-97). The Court sees no reason to depart from this approach in the present case.
58. In this connection, the Court notes that the applicant was restricted in his free movement within the territory of the Republic of Moldova, owing to the retention of his passport and to the restriction from leaving a part of this territory – the military institution and, subsequently, the military unit in the Transdniestrian region – without the authorisation of the military commander. The measures were imposed by the military institute of the “MRT” Ministry of Defence and by the “MRT” military commander during over six months. Accordingly, these measures amounted to an interference with the applicant’s freedom of movement within the meaning of Article 2 of Protocol No. 4.
59. It must therefore be examined whether the interference was “in accordance with the law”, pursued one or more of the legitimate aims set out in Article 2 § 3 of Protocol No. 4 and whether it was “necessary in a democratic society” to achieve such an aim.
60. The Court recalls that the notion of lawfulness is fundamental for the limitation of any Convention right. In this connection, it notes that the interference with the applicant’s right to freedom of movement on the territory of the Republic of Moldova had not been carried out in accordance with Moldovan law. Therefore, bearing in mind its case-law to the effect that no “MRT” authority could order anyone’s lawful arrest (see Mozer, cited above, § 150), it concludes that no “MRT” authority, could lawfully order the restriction of the freedom of movement of individuals either (see Dobrovitskaya and Others, cited above, § 96).
61. The Court found that the “voluntary” element was decisive in respect of the applicant’s complaint under Article 4 of the Convention (see paragraphs 38-40 above). However, the Court notes that, unlike Article 4 of the Convention which does not contain a requirement of lawfulness, Article 2 of Protocol No. 4 to the Convention provides explicitly that “[n]o restrictions shall be placed on the exercise of [this right] other than such as are in accordance with law …”. For this reason, the alleged status of the applicant as a conscript or the fact that he had acknowledged the possibility of a restriction when he had enrolled in the military institution and the “military service” cannot alter the conclusion that the restriction failed to have a legal basis under Moldovan law.
62. Accordingly, the Court is not required to examine if the interference pursued any legitimate aim and if it was necessary in a democratic society to achieve that aim.
63. The applicant has been affected by the restriction on his right to move freely on the territory of the Republic of Moldova for six months without a legal basis. The Court finds, therefore, that there has been a breach of Article 2 of Protocol No. 4 to the Convention on account of the applicant’s restriction of his freedom of movement.
3. Responsibility of the respondent Governments
64. The Court must next determine whether the Republic of Moldova fulfilled its positive obligations to take appropriate and sufficient measures to secure the applicant’s rights (see paragraphs 23-24 above). In Mozer, the Court held that Moldova’s positive obligations related both to measures needed to re-establish its control over the Transdniestrian territory, as an expression of its jurisdiction, and to measures to ensure respect for the individual applicant’s rights (see Mozer, cited above, § 151).
65. As regards the first aspect of Moldova’s obligations, to re-establish control, the Court found in Mozer that, from the onset of the hostilities in 1991-1992 until July 2010 Moldova had taken all the measures in its power (see Mozer, cited above, § 152). The events complained of in the present case took place in 2011-2012. The Court notes that none of the parties submitted any evidence that the Republic of Moldova had changed its position towards the Transdniestrian issue during this period of time and it therefore sees no reason to reach a different conclusion from that reached in Mozer (ibidem).
66. Turning to the second aspect of the positive obligations, namely to ensure respect for the applicant’s individual rights, the Court found in Ilașcu and Others (cited above, §§ 348-352) that the Republic of Moldova had failed to fully comply with its positive obligations, to the extent that from May 2001 it had failed to take all the measures available to it in the course of negotiations with the “MRT” and Russian authorities to bring an end to the violation of the applicants’ rights. In the present case, the applicant submitted that the Republic of Moldova had not discharged its positive obligations because the initiated criminal investigation had not been efficient to protect his rights and because since March 2017 the position of the Moldovan president had been ambiguous in respect of the “MRT” authorities.
67. The Court considers that Moldovan authorities did not have any real means of guaranteeing the applicant’s freedom of movement in the “MRT” territory (see, a contrario, Pocasovschi and Mihaila v. the Republic of Moldova and Russia, no. 1089/09, § 46, 29 May 2018). Moreover, they could not properly investigate the allegations of deprivation of liberty.
68. The Court notes that the facts of the case go up to 2012 and, therefore, it was not necessary to consider the applicant’s arguments concerning the conduct of the Moldovan authorities beyond that date.
69. In the light of the foregoing, the Court concludes that the Republic of Moldova did not fail to fulfil its positive obligations in respect of the applicant. There has therefore been no violation of Article 2 of Protocol No. 4 to the Convention by the Republic of Moldova.
70. In so far as the responsibility of the Russian Federation is concerned, the Court has established that Russia exercised effective control over the “MRT” during the period in question (see paragraphs 25-27 above). In the light of this conclusion, and in accordance with its case-law, it is not necessary to determine whether or not Russia exercised detailed control over the policies and actions of the subordinate local administration (see Mozer, cited above, § 157). By virtue of its continued military, economic and political support for the “MRT”, which could not otherwise survive, Russia’s responsibility under the Convention is engaged as regards the violation of the applicant’s rights.
71. In conclusion, and after having found that the applicant’s rights guaranteed by Article 2 of Protocol No. 4 to the Convention have been breached (see paragraph 63 above), the Court holds that there has been a violation of that provision by the Russian Federation.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
72. Lastly, the applicant complained that he had no effective remedies in respect of his complaints under Article 2 of Protocol No. 4 to the Convention. He relied on Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. Admissibility
73. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
74. The applicant submitted that he had had no means of asserting his rights in the face of the actions of the “MRT” authorities.
75. The Moldovan Government submitted that there had been a violation of Article 13 in the present case, for which they could not be held responsible. The Russian Government did not make any specific comment.
76. The Court observes that it found that the applicant’s complaint under Article 2 of Protocol No. 4 to the Convention was arguable. He was therefore entitled to an effective domestic remedy within the meaning of Article 13 in respect of this complaint.
77. The Court already found the absence of an effective remedy in respect of violations committed by the “MRT” authorities (see for example, Mozer, cited above, §§ 210-212, and Eriomenco, cited above, § 96; Dobrovitskaya, cited above, §108). In view of the similarity of the complaints made and of the coincidence of the time-frame of the events in the present case with those in Eriomenco (cited above), the Court sees no reasons to depart from that conclusion in the present case.
78. The Court therefore concludes that the applicant did not have an effective remedy in respect of his complaint under Article 2 of Protocol No. 4 to the Convention. Consequently, the Court must decide whether the violation of Article 13 can be attributed to any of the respondent States.
79. The Court notes that in Mozer (cited above, §§ 213-216) it found that Moldova had made procedures available to applicants commensurate with its limited ability to protect their rights. It had thus fulfilled its positive obligations and the Court found that there had been no violation of Article 13 of the Convention by that State. The Court sees no reasons to depart from that conclusion in the present case (Mangîr and Others v. the Republic of Moldova and Russia, no. 50157/06, § 71, 17 July 2018). Accordingly, the Court finds that there has been no violation of Article 13 of the Convention by the Republic of Moldova.
80. As in Mozer (cited above, §§ 217-218), in the absence of any submission by the Russian Government as to any remedies available to the applicant, the Court concludes that there has been a violation by the Russian Federation of Article 13 of the Convention, taken in conjunction with Article 2 of Protocol No. 4 to the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
81. 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.”
82. The applicant claimed 9,000 euros (EUR) in respect of non-pecuniary damage and EUR 2,100 in respect of costs and expenses. The applicant submitted a copy of the contract with his representative and an itemized timesheet of his work. The applicant requested that the amount of the costs and expenses be paid directly to his representative’s bank account.
83. The Moldovan Government considered the applicant’s claims excessive and asked the Court to dismiss them. The Russian Government made no specific submissions.
84. The Court notes that it has not found any violation of the Convention by the Republic of Moldova in the present case. Accordingly, no award of compensation for damage or costs and expenses is to be made as regards that respondent State.
85. In light of the violations found by the Russian Federation, the Court awards the applicant EUR 6,500 in respect of non-pecuniary damage and his request in full in respect of costs and expenses, to be paid directly to his representative, plus any tax that may be chargeable on the applicant.
86. The Court considers it appropriate that the default interest rate 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, UNANIMOUSLY,
1. Declares the complaints concerning Article 2 of Protocol No. 4 to the Convention and Article 13 of the Convention, read in conjunction with Article 2 of Protocol No. 4, admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of Article 2 of Protocol No. 4 to the Convention by the Republic of Moldova;
3. Holds that there has been a violation of Article 2 of Protocol No. 4 to the Convention by the Russian Federation.
4. Holds that there has been no violation of Article 13 of the Convention in respect of the complaint concerning freedom of movement by the Republic of Moldova;
5. Holds that there has been a violation of Article 13 of the Convention in respect of the complaint concerning freedom of movement by the Russian Federation;
6. Holds
(a) that the Russian Federation is to pay the applicant, within three months, the following amounts:
(i) EUR 6,500 (six thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,100 (two thousand one hundred euros), plus any tax that may be chargeable, in respect of costs and expenses, to be paid directly to the applicant’s representative’s bank account;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 30 November 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Carlo Ranzoni
Deputy Registrar President
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