CASE OF ȘCERBININA v. THE REPUBLIC OF MOLDOVA AND RUSSIA

SECOND SECTION

CASE OF ȘCERBININA v. THE REPUBLIC OF MOLDOVA AND RUSSIA

(Application no. 76892/14)

JUDGMENT
 

STRASBOURG

29 June 2021

This judgment is final but it may be subject to editorial revision.

In the case of Șcerbinina 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. 76892/14) 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 Moldovan national, Ms Irina Șcerbinina (“the applicant”), on 4 December 2014;

the decision to give notice of the application to the Moldovan and the Russian Governments (“the Governments”);

the Russian Government’s objection to the examination of the application by a Committee and to the Court’s decision to reject it;

the parties’ observations;

Having deliberated in private on 8 June 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case is about alleged denial of fair trial to the applicant as a result of civil proceedings before the courts of the “Moldovan Republic of Transdniestria” (“MRT”) which could not qualify as “independent tribunals established by law” within the meaning of Article 6 § 1 of the Convention.

THE FACTS

2.  The applicant was born in 1981 and lives in Tiraspol. The applicant was represented by Ms N. Hriplivîi, a lawyer practising in Chișinău.

3.  The Moldovan Government (“the Government”) were represented by their Agent, Mr O. Rotari, and the Russian Government were represented by Mr M. Galperin, the Representative of the Russian Federation at the European Court of Human Rights.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  The background to the case, including the Transdniestrian armed conflict of 1991-1992 and the subsequent events, is set out in Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, §§ 28-185, ECHR 2004‑VII) and Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, §§ 8-42, ECHR 2012).

6.  In 2013 the applicant was dismissed from employment. She initiated reinstatement proceedings against her employer before the courts of the self‑proclaimed “Moldovan Republic of Transdniestria” (“MRT”).

7.  The proceedings ended with the final judgment of the Supreme Court of the “MRT” on 5 June 2014 by which the applicant’s action was dismissed.

8.  On an unspecified date the applicant complained to the authorities of Moldova and a criminal investigation was initiated by the Bender District Prosecutor’s Office into that applicant’s complaints. Later the proceedings were discontinued on the ground that the facts complained about by the applicant did not disclose the elements of a criminal offence.

RELEVANT LEGAL FRAMEWORk

9.  Reports by inter-governmental and non-governmental organisations, the relevant domestic law and practice of the Republic of Moldova, and other pertinent documents were summarised in Mozer v. the Republic of Moldova and Russia ([GC], no. 11138/10, §§ 61-77, 23 February 2016).

THE LAWJURISDICTION

10.  The Court must first 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.The parties’ submissions

11.  The applicant submitted that both respondent Governments had jurisdiction.

12.  The Moldovan Government submitted that they had positive obligations to secure the applicants’ rights.

13.  For their part, the Russian Government argued that the applicant did not fall within their jurisdiction and that, consequently, the application should be declared inadmissible ratione personae and ratione loci in respect of the Russian Federation.The Court’s assessment

14.  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 (cited above, §§ 83-101) and in Mozer (cited above, §§ 81‑95). In particular, the applicants and the Moldovan Government submitted that both respondent Governments had jurisdiction, while the Russian Government submitted that they had no jurisdiction.

15.  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).

16.  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 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).

17.  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).

18.  In so far as the Russian Federation is concerned, the Court notes that in Ilașcu and Others it found that the Russian Federation contributed both militarily and politically to the creation of a separatist regime in the region of Transdniestria in 1991 and 1992 (see Ilașcu and Others, cited above, § 382). The Court also found in subsequent cases concerning the Transdniestrian region that up until 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 (see Mozer, cited above, §§ 110-111).

19.  The Court sees no grounds on which to distinguish the present case from Ilașcu and Others, Ivanţoc and Others, Catan and Others, and Mozer (all cited above).

20.  Consequently, it dismisses the Russian Government’s objections ratione personae and ratione loci and holds that the applicant in the present case falls within the jurisdiction of the Russian Federation under Article 1 of the Convention.

21.  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).ALLEGED VIOLATION OF ARTICLE 6 §1 OF THE CONVENTION

22.  The applicant complained that there had been a violation of Article 6 § 1 since her case had been determined by courts that could not qualify as “independent tribunals established by law” and that moreover those tribunals had not afforded her a fair trial. The relevant parts of Article 6 of the Convention read as follows:

Article 6

“1.  In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”Admissibility

23.  The respondent Governments submitted that the application should be rejected for failure to exhaust domestic remedies before the Moldovan courts. The Court recalls that it has already examined and dismissed a similar objection in the cases of Mozer (cited above, §§ 115-121) and Bobeico and Others v. the Republic of Moldova and Russia (no. 30003/04, § 39, 23 October 2018). Since no new arguments have been adduced by the respondent Governments, the Court sees no reason to reach a different conclusion in this case. It follows that the respondent Governments’ objection of non-exhaustion of domestic remedies must be dismissed.

24.  The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other ground. The Court therefore declares it admissible.Merits

25.  The applicant argued that the “MRT” courts that had decided her case could not be considered as “independent tribunals established by law” within the meaning of Article 6 § 1. They also argued that the proceedings were unfair.

26.  The Moldovan Government agreed with the applicant’s claims and submitted that the “MRT” courts could not be considered “tribunals established by law” for the purposes of Article 6 of the Convention. However, that was not attributable to the Republic of Moldova.

27.  The Russian Government made a brief summary of the legislation and international law applicable in the MRT and described the judicial system and the law enforcement authorities of the region. They pointed to the existence of an MRT Ombudsman and Constitutional Court and gave a description of the linguistic situation and the foreign policy of the MRT. They finally mentioned the MRT’s cooperation with the United Nations, the Organisation for Security and Co-operation in Europe and the Human Rights Commissioner of the Council of Europe.

28.  The Court reiterates that in certain circumstances, a court belonging to the judicial system of an entity not recognised under international law may be regarded as a “tribunal established by law” provided that it forms part of a judicial system operating on a “constitutional and legal basis” reflecting a judicial tradition compatible with the Convention, in order to enable individuals to enjoy the Convention guarantees (see Ilaşcu and Others, cited above, § 460). It further recalls that in Mozer it held that the judicial system of the “MRT” was not a system reflecting a judicial tradition compatible with the Convention (see Mozer, cited above, §§ 148-149). It made a similar finding in respect of facts going up to September 2016 in the case of Eriomenco, cited above, § 72).

29.  In the light of the above, the Court considers that the conclusions reached in Mozer and Eriomenco are valid in the present case too and that the “MRT” courts could not qualify as a “tribunal established by law” for the purposes of Article 6 § 1 of the Convention (see Vardanean v. the Republic of Moldova and Russia, no. 22200/10, § 39, 30 May 2017 and Apcov v. the Republic of Moldova and Russia, no. 13463/07, § 57, 30 May 2017). The Court therefore finds that there has been a breach of Article 6 § 1 of the Convention in the present case.

30.  The Court must next determine whether the Republic of Moldova fulfilled its positive obligation to take appropriate and sufficient measures to secure the applicants’ rights (see paragraph 17 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 individual applicants’ rights (see Mozer, cited above, § 151).

31.  As regards the first aspect of Moldova’s obligation, 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). Since the parties did not adduce any evidence to show that the Moldovan Government has changed its position concerning the Transdniestrian region in the years preceding the facts of the present case, the Court sees no reason to reach a different conclusion (ibid.).

32.  Turning to the second part of the positive obligations, namely to ensure respect for the applicant’s rights, the Court notes that the Moldovan authorities made efforts to secure her rights, namely a criminal investigation was initiated in respect of the facts complained about by her.

33.  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 applicants. There has therefore been no violation of Article 6 § 1 of the Convention by the Republic of Moldova.

34.  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 18-19 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 applicants’ rights.

35.  In conclusion, and after having found that the applicant’s rights guaranteed by Article 6 § 1 have been breached (see paragraph 29 above), the Court holds that there has been a violation of that provision by the Russian Federation.

36.  In view of the above, the Court does not consider it necessary to examine separately the applicant’s remaining complaints under Article 6 § 1 of the Convention.ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 6 OF THE CONVENTION

37.  The applicant also complained that she had no effective remedy in respect of her complaint under Article 6 of the Convention.

38.  However, having regard to the facts of the case, the submissions of the parties and its findings under Article 6 § 1 of the Convention, the Court considers that it has examined the main legal question raised in the present application, and that it is not necessary to examine either the admissibility or the merits of the complaints under Article 13 (see Kaos‑GL v. Turkey, 450 no. 4982/07, § 65, 22 November 2016; Ghiulfer Predescu v. Romania, 451 no. 29751/09, § 67, 27 June 2017; Political Party “Patria” and Others v. the Republic of Moldova, nos. 5113/15 and 14 others, § 41, 4 August 2020).APPLICATION OF ARTICLE 41 OF THE CONVENTION

39.  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.”Damage

40.  The applicant claimed 9,000 euros (EUR) in respect of non-pecuniary damage.

41.  The Governments contended that the claims were excessive and asked the Court to dismiss them.

42.  Having regard to its finding of a violation of the applicants’ rights, the Court considers that an award in respect of non‑pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant EUR 3,000 in respect of non-pecuniary damage, to be paid by the Russian Federation.Costs and expenses

43.  The applicant also claimed EUR 1,600 for the costs and expenses incurred before the Court.

44.  The respondent Governments considered the above claim to be excessive.

45.  Regard being had to the documents in its possession such as the contract between the applicant and their lawyer and the detailed time-sheet, the Court considers it reasonable to award the entire amount claimed for costs and expenses, to be paid by the Russian Federation.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the complaint under Article 6 § 1 of the Convention admissible in respect of the Republic of Moldova;Declares the complaint under Article 6 § 1 of the Convention admissible in respect of the Russian Federation;Holds that there has been no violation of Article 6 § 1 of the Convention by the Republic of Moldova;Holds that there has been a violation of Article 6 § 1 of the Convention by the Russian Federation;Holds, that there is no need to examine the admissibility or the merits of the complaint under Article 13 of the Convention;Holds

(a)  that the Russian Federation is to pay the applicants, within three months, the following amounts:

(i)  EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to each applicant;

(ii)  EUR 1,600 (one thousand six hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to each applicant;

(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;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 29 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Carlo Ranzoni
Deputy RegistrarPresident

 

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