CASE OF MANOLE AND POSTICA v. THE REPUBLIC OF MOLDOVA AND RUSSIA

SECOND SECTION

CASE OF MANOLE AND POSTICA v. THE REPUBLIC OF MOLDOVA AND RUSSIA

(Application no. 4711/07)

JUDGMENT
 

STRASBOURG

29 June 2021

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

In the case of Manole and Postica 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. 4711/07) 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 two Moldovan nationals, Mr Ion Manole and Alexandru Postica (“the applicants”), on 7 December 2006;

the decision to give notice to the respondent Governments of the complaints under Articles 3, 5 § 1 and 13 and to declare inadmissible the remainder of the application;

the parties’ observations;

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

Having deliberated in private on 8 June 2021,

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

INTRODUCTION

1.  The case concerns the applicants’ allegedly unlawful detention and humiliation at a checkpoint situated in the self-proclaimed “Moldovan Republic of Transdniestria”.

THE FACTS

2.  The applicants were born in 1973 and 1981 respectively and live in Chișinău. The applicants were represented by Mr L. Roemer, a lawyer practising in Geneva.

3.  The Moldovan Government were represented by their Agent, Mr O. Rotari. The Russian Government were represented by their Agent, Mr M. Galperin, 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 facts concerning the historical background of the case, including the Transdniestrian armed conflict of 1991-92 and the subsequent events, are set out in Ilaşcu, Ivanţoc, Leşco and Petrov-Popa v. Moldova and Russia ([GC], no. 48787/99, §§ 28-183, ECHR 2004‑VII), and in Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, §§ 8-42, ECHR 2012).The applicants’ detentionThe applicants’ version of events

6.  On 19 July 2005 the applicants, together with C., an American citizen, made a working visit to the villages of Doroțcaia and Coșnița on the left bank of the Dniester river, which were under the control of the Moldovan authorities.

7.  On their return to Chișinău, they had to cross checkpoint no. 9, situated at the end of a bridge across the Dniester river. The checkpoint was manned by military personnel: two from the Republic of Moldova, two from the self-proclaimed “Moldavian Republic of Transdniestria” (MRT) and four from the Russian Federation (see more details in Pisari v. Moldova and Russia, no. 42139/12, § 9, 21 April 2015). Russian lieutenant D. was the commanding officer.

8.  When approaching checkpoint no. 9 at around 8 p.m, C. asked if she could photograph a sign displaying the picture of the official RM flag and the inscription “Drum bun” (“Farewell”). Since there was no sign or inscription prohibiting the taking of pictures, and the event took place outside the checkpoint, the applicants told C. that she could do so. After taking the photograph, the car entered the checkpoint and was stopped by D. The latter informed the car’s occupants that photographing the checkpoint – a military unit – was prohibited and that they had to destroy the pictures taken. The applicants explained that C. used a film camera and that destroying the film with the photographs taken near the checkpoint would also destroy other photographs, both personal and related to their working visit. They also noted the absence of any information regarding the prohibition on taking photographs. D. insisted on destroying the photographs. After the applicants insisted that the destruction of the film be reflected in the minutes of the event, D. declared that they were to be detained until his superiors arrived. He ordered that their car be immobilised with the use of a special wheel clamp known as “Hedgehog”.

9.  The applicants were asked not to leave. When they asked, several times, whether they were free to go, they were told that they were not. Owing to the immobilisation of the applicant’s car, other cars could not cross the bridge. The applicants telephoned several acquaintances and after some time a number of Russian officers, a Ukrainian officer, officers from the Moldovan police and prosecutor’s office, members of the Helsinki Committee for Human Rights in Moldova and some locals gathered at the checkpoint. Some two hours into these events, D. suddenly started shouting and swearing, then took his AKS-74 automatic assault rifle, readied it for firing and pointed it at the crowd. When asked by a Moldovan officer to put the rifle back into safety mode, he refused and then pressed the trigger. At the last moment, the Moldovan soldier managed to grab the rifle by the barrel and moved it so that the rifle pointed in the air. D. fired two bursts, in total over 20 bullets, until he emptied the cartridge. No one was hurt, except for the Moldovan officer, who had burnt his hand from the heat of the barrel.

10.  Half an hour later representatives from the Joint Control Comission (“the JCC”, see details in Pisari, cited above, § 30, as well as paragraph 25 below) arrived. Subsequently, the Moldovan Minister of Reintegration also arrived at the scene of the events and negotiated with those involved. The discussions between the various officials ended with the decision to allow the car to cross the bridge and to free the applicants and C., since there had been no ground for their detention. They did not have to destroy the film in C.’s camera and were freed at 0.50 a.m. on 20 July 2005. No minutes of their arrest were handed to them, despite their express request.

11.  On 20 July 2005 Promo-Lex, the non-Governmental organisation specialising in the protection of human rights for which the two applicants worked, issued a press release, in which it described the events, essentially in the same manner as that described in the preceding paragraphs.

12.  Also on 20 July 2005, a Moldovan prosecutor from Dubăsari district carried out a crime scene investigation near the checkpoint. Amongst the findings made was the absence of any sign prohibiting the taking of photographs in that place. The applicants never received a copy of the minutes of their detention on 19-20 July 2005.The Russian Government’s version of events

13.  According to the Russian Government, who relied on the minutes of the incident drawn up by the JCC on 21 July 2005, on 19 July 2005 at 8.45 p.m. military observers deployed by the JCC had gone to checkpoint no. 9 “upon the detention of [a] Honda car [registration no.]”. They had been informed by D. that unauthorised photographs had been taken from that car on the territory of the checkpoint. When asked to present identification documents for themselves and the car, the car’s occupants had refused and insulted D. They had also declared that United States’ citizen C. had taken the photograph and that she had the right to photograph anything she liked. Eventually they presented the documents requested, after repeated requests.

14.  While D. was explaining the situation to the military observers, they had been surrounded by the two applicants, Mr Urîtu (the president of the Helsinki Committee for Human Rights in Moldova) and a number of “unfriendly residents of the Republic of Moldova”. All attempts to calm these persons down and have them disperse had failed, Mr Urîtu arguing that the applicants’ detention was unlawful and that everyone would leave once the applicants and C. were freed. The situation had been very tense, with Mr Urîtu and other locals insulting the officers and threatening to throw them into the Dniester river and blow them up. Then one of the “vicious locals” had thrown away the special wheel clam “Hedgehog” that, up to that moment, had immobilised the applicants’ car, another sat behind the wheel of the car and attempted to drive it, while D. stood in front of it. At the same time, the crowd had rushed at D. At that moment (approximately 10.20 p.m.), D. had stepped back from the crowd and sent a round into the chamber of the assault rifle, all the time pointing it upwards. While Russian and Ukrainian military observers tried to stand between D. and the crowd, a major from the Moldovan police (S.) had jumped towards D. and grabbed his machine gun, while the weapon was continuously pointed upwards. At that moment D. had fired two bursts of 10 rounds each. The military observers had then pulled the crowd away from D. and insisted that the locals leave the checkpoint. At 11 p.m. the Moldovan Minister of Reintegration had arrived and convinced the locals to free the checkpoint. An OSCE officer had arrived and left with C. at around 1 a.m. on 20 July 2005.

15.  In a further paragraph in the same JCC report, the military commander of the Central and Northern sections of the Security Zone gave a similar description of the events, in which he had participated as one of the military observers present at the scene after 8.50 p.m.. He added that many of the locals had been rather intoxicated and that several of them had tried to grab D.’s rifle. After that he had warned that he would use his weapon and shouted at them to stay back or he would shoot, before being assaulted by Moldovan officer S.Complaints made by the applicants

16.  On an unspecified date at the end of July 2005 the applicants wrote a letter addressed to the Russian Prosecutor General, the Defence Minister and the head of the Russian component in the JCC. In that letter they described the events of 19-20 July 2005 and noted that they still had not received a copy of the minutes of their arrest, which deprived them of the possibility of appealing against the decision to detain them and of claiming compensation. They asked, inter alia, to obtain a copy of the regulation on which D. had relied in detaining them and to be informed about the procedure and authority to which a private person could appeal against the actions of a representative of the peacekeeping forces.

17.  On 29 December 2005 the Moldovan Ministry of Justice replied to Promo-Lex that it did not have knowledge of any document which would constitute a legal basis for the actions of the peacekeepers in the “MRT”. It added that the examination of possible unlawful actions by Russian soldiers, not falling under Moldovan jurisdiction, could be sent to the Russian courts.

18.  On 11 January 2006 the applicants wrote to the Russian Ambassador in Moldova, again describing the events of 19-20 July 2005 and noting that up to that date they had still not received a copy of any minutes of their detention. They also asked the Ambassador to take all lawful actions in order to bring D. to justice and to compensate the damage caused to them. It is unclear whether they received a reply.

19.  On 24 March 2006 the Russian Prosecutor General’s Office forwarded the applicants’ request (see paragraph 16 above) to the Military Prosecutor of the Moscow military circumscription. The latter forwarded the request on 7 April 2006 to the military prosecutor of military unit 14101 located in the “MRT” (Tiraspol) who informed the applicants in a letter dated 7 June 2006 (received on 16 June 2006) that the information they had sought could be obtained from the Moldovan representative at the JCC.

20.  Upon a notification by the Ministry of Reintegration of the Republic of Moldova, the Moldovan Ministry of Internal Affairs initiated a criminal investigation into the events described above. On 14 December 2009 the investigation was suspended.

21.  By letters dated 19 September and 31 October 2005 the Moldovan Ministry of Reintegration informed the applicants that the Republic of Moldova had suspended its participation in the work of the JCC starting from April 2005.

22.  According to the Moldovan Government, they had made several complaints to the political representative in the process of settlement of the Trasndniestrian conflict. In particular, the Ministry of Reintegration requested information about the events of 19 July 2005, promoted the creation of necessary conditions for human rights defenders to carry out their activity unhindered in the “MRT”, and requested assistance in removing any impediments to the applicants’ freedom of movement.

23.  According to the minutes of an on-site investigation by the deputy prosecutor of the Dubăsari prosecutor’s office (under Moldovan control), on 20 July 2005, a detailed description of the checkpoint and its surroundings was made. The minutes mention the presence of road signs, such as reducing the maximum speed limit to 30, 10 and 5 km per hour, STOP signs and metallic barriers, as well as the presence of a metallic contraption used to immobilise cars (“Hedgehog”). The minutes also describe the existence, 50 m from the sign “Boundary of the road post” (Граница поста) of a road sign 2x3 m wide, representing on one side the symbols of the Dubăsari region, and on the other side the inscription “Farewell” in Romanian and Russian (“Drum bun” and “Счастливого пути”). No other signs were present. On 21 July 2005 a criminal investigation was initiated, the applicants were heard as injured parties, S. was examined by a medical expert and other investigative actions were carried out. On 14 December 2009 the investigation was suspended after all possible investigative measures had been taken. The medical report concerning the injury sustained by S. noted the latter’s explanation that he had been burnt while pulling the barrel of an automatic rifle upwards when a military official started shooting without reason.

RELEVANT LEGAL FRAMEWORK

24.  The relevant materials have been summarised in Mozer v. the Republic of Moldova and Russia [GC] (no. 11138/10, §§ 61-77, ECHR 2016).

25.  On 21 July 1992 the Presidents of the Russian Federation and the Republic of Moldova signed in Moscow an agreement putting an end to the military conflict in the Transdniestrian region of Moldova. Under the agreement, a security zone was created between the conflicting parties and a Joint Control Comission (“the JCC”) was set up to monitor the implementation of the agreement in the security zone. The JCC’s headquarters are in Tighina, a city controlled by the Transdniestrian “authorities”. It is composed of representatives of Russia, the Republic of Moldova and the self-proclaimed Republic of Transdniestria. It has at its disposal a peacekeeping force composed of military contingents from each of the parties. All decisions of the JCC are taken by consensus of all the parties, including decisions concerning the placement and use of the military contingents from each of the parties represented. There are nineteen peacekeeping checkpoints in the security zone, manned by soldiers from the peacekeeping forces. The JCC does not have any judicial functions, and ensures the observance of ceasefire, maintains security and demilitarisation in the security zone, examines any breaches of the 1992 agreement, in the case of which it takes urgent measures to restore peace and the rule of law, while preventing new breaches of this kind in the future.

26.  On 6 October 2003 a military body of the JCC issued instructions to the commanders of the security checkpoints concerning, inter alia, the use of firearms. It stated that a firearm could be used for the purpose of stopping a vehicle that had ignored an order given by the peacekeeping forces if the lives of soldiers were under threat, but only after a verbal warning followed by a shot in the air. If after that the driver failed to stop, the soldiers could use a firearm after pointing it to the ground or aiming at the vehicle’s tyres. Soldiers using firearms were obliged to undertake all necessary measures to ensure the safety of persons nearby.

THE LAWGENERAL ADMISSIBILITY ISSUESJurisdiction

27.  The Russian Government argued that that the applicants did not fall within their jurisdiction. Consequently, the applications should be declared inadmissible ratione personae and ratione loci in respect of the Russian Federation. For their part, the Moldovan Government did not contest that the Republic of Moldova retained jurisdiction over the territory controlled by the “MRT”.

28.  The Moldovan Government reiterated their position in previous similar cases, subscribing to the Court’s assessment of the issue.

29.  In so far as the Republic of Moldova is concerned, the Court notes that in Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, §§ 311-19, ECHR 2004‑VII), Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, §§ 103-07, ECHR 2012) and Mozer (cited above, §§ 97-98) 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 330-31; Catan and Others, cited above, §§ 109-10; and Mozer, cited above, § 99).

30.  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 had 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).

31.  As for the Russian Federation, the Court reiterates that in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 136, ECHR 2011; Jaloud v. the Netherlands [GC], no. 47708/08, § 139, 20 November 2014). This may include the exercise of extra-territorial jurisdiction by a Contracting State when, in accordance with custom, treaty or other agreement, its authorities carry out executive functions on the territory of another State (see Al-Skeini, cited above, §§ 135 and 149).

32.  In the present case, the checkpoint in question, situated in the security zone, was manned and commanded by Russian soldiers in accordance with the agreement putting an end to the military conflict in the Transdniestrian region of Moldova. In this respect, the situation was exactly like the one examined in Pisari (cited above, §§ 9 and 30-31, which concerned the same checkpoint).

33.  The Russian Government argued that the present case had to be distinguished from Pisari in that they had not contested the Court’s jurisdiction in that case, unlike the present one.

34.  The Court notes that, even though in Pisari the Russian Government did not object to the Court’s power to examine that case, it examined the issue on its own motion and found that the applicant was under Russian jurisdiction. Since the two cases are substantially the same in what concerns the issue of jurisdiction, the Court sees no reason to depart from its previous assessment. It therefore considers that, in the circumstances of the present case, the applicants were under the jurisdiction of the Russian Federation during their arrest at checkpoint no. 9.Exhaustion of domestic remedies and observance of the six-month rule

35.  The Russian Government argued that the application should be declared inadmissible either for failure to exhaust available domestic remedies, or for missing the six-month time-limit for lodging an application with the Court. If the domestic remedies available in the “MRT” were to be regarded as effective for the purposes of the Convention, then the applicants’ failure to complain to the “MRT” courts should lead to the dismissal of the application. Moreover, the request made to the various authorities in the Russian Federation itself were not real criminal complaints, but merely requests for information, not amounting to exhaustion of remedies in Russia. At the same time, the Moldovan Ministry of Justice had informed the applicants that their case could be examined in the Russian courts (see paragraph 17 above), to which the applicants had failed to apply.

36.  If remedies in the “MRT” were to be regarded as ineffective, then the applicants had to lodge their application with the Court within six months from the moment when they had found out about the violation of their rights, that is from 20 July 2005. However, the application was lodged on 7 December 2006, more than six months later.

37.  The applicants argued that they had tried to exhaust any remedies in the Russian Federation by complaining to various authorities there (see paragraph 16 above).

38.  As for the remedies available in the “MRT”, the Court notes that, a year prior to the relevant events in July 2005, it adopted its judgment in Ilașcu (cited above) on 8 July 2004. In that judgment (§ 436) it found that the MRT Supreme 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”. Accordingly, it found 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” could not be regarded as “lawful detention” ordered “in accordance with a procedure prescribed by law”, in violation of Article 5 § 1 of the Convention (idem, § 462).

39.  In the light of that judgment, a year later the applicants must have been aware that lodging a complaint with “MRT” courts was not an effective remedy for the purposes of the Convention. In any event, due to the fact that in the present case the applicants complain of the actions of a Russian agent acting in his official capacity, they did not have to complain anywhere else than in the country represented by said agent. In this respect, the Court reiterates that, in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999; and Jasinskis v. Latvia, no. 45744/08, § 50, 21 December 2010). The Court finally notes that the Russian Government have not shown which provision of Russian law set out the possibility for a person to complain against the actions of a Russian agent in the “MRT” courts and how a judgment adopted by such courts could be enforced in Russia.

40.  As for the Russian Government’s argument about the failure to exhaust remedies available in Russia, the Court notes that the obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain, not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. To be effective, a remedy must be capable of directly redressing the impugned state of affairs and must offer reasonable prospects of success (see Mozer, cited above, § 116).

41.  By contrast, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Akdivar and Others v. Turkey, 16 September 1996, § 67, Reports of Judgments and Decisions 1996‑IV). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to use that means of redress (see Akdivar and Others, cited above, § 71; and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009).

42.  As regards the burden of proof, it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, and available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact used, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see, inter alia, Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 58, ECHR 2013 (extracts); Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014; and Gherghina v. Romania [GC] (dec.), no. 42219/07, §§ 83-89, 9 July 2015).

43.  In the present case, the Russian Government did not specify the available remedies in respect of the applicants’ complaints concerning the actions of Russian peacekeepers stationed on the territory of the Republic of Moldova (cf. Dobrovitskaya and Others v. the Republic of Moldova and Russia, nos. 41660/10 and others, § 25, 3 September 2019). Moreover, it appears from the Russian authorities’ letter of 16 June 2006 to the applicants (see paragraph 16 above) that none of the highest prosecuting authorities in Russia, both general purpose (the Prosecutor General’s Office) and military (the Military Prosecutor of the Moscow military circumscription and the military prosecutor of Russian military unit 14101 located in the “MRT”) was able to indicate clearly to the applicants which courts had jurisdiction to deal with their complaints (see paragraph 19 above).

44.  In view of the above, the Court concludes that the Russian Government did not convincingly establish the existence and availability of remedies in Russia (see paragraph 42 above) for a complaint against a Russian peacekeeper stationed in Moldova. Therefore, the Russian Government’s objection must be dismissed.

45.  As for the observance of the six-month time-limit for lodging the application, the Court considers that, given the uncertainty about whether the applicants had an effective remedy in Russia (see paragraph 43 above), it could not be said that it had been clear from the outset that no effective remedy was available to them in Russia. However, they should have realised the futility of their efforts on 16 June 2006 when they received an answer from the Russian authorities (see paragraph 19 above). The six-month period thus started running from that date, when they became aware of circumstances which rendered the potential remedy ineffective (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 136, ECHR 2012; and Turturica and Casian v. the Republic of Moldova and Russia, nos. 28648/06 and 18832/07, § 38, 30 August 2016). The present application was lodged on 7 December 2006, within six months from that date. Accordingly, this objection must also be rejected.Insignificant disadvantage

46.  The Russian Government submitted that the applicants had not suffered a significant disadvantage as a result of the events mentioned in their application. In particular, being human rights defenders, the applicants had to be better psychologically prepared for extraordinary circumstances than an average person. It was clear from the facts of the case that D. had been forced to use his weapon in self-defence and it was not proved that the applicants had been particularly affected by the shooting incident. Moreover, their detention at the checkpoint had been the result of their own refusal to destroy the film and was proportionate under the circumstances. The applicants could easily have avoided detention, had they complied with the lawful requirement not to take photographs.

47.  The applicants submitted that unjustified detention for several hours, during which time their life and health had come under threat, could not be considered an insignificant disadvantage.

48.  The Court considers that the applicants’ allegations raise serious issues under Articles 3 and 5 § 1 of the Convention. It cannot agree with the Russian Government that the applicants did not suffer a significant disadvantage, notably owing to their detention. Accordingly, this objection is to be rejected.Abuse of the right of individual application

49.  The Russian Government finally argued that the applicants’ real goal in lodging this application was not the protection of their Convention rights. Rather, they were trying to use the Court to further their political aims, such as discrediting the peacekeeping mission in Moldova and obtaining the withdrawal of the Russian peacekeepers.

50.  The applicants submitted that their personal views expressed to the media concerning the peacekeeping mission did not rule out their right to lodge an application with the Court.

51.  The Court notes that, regardless of their political or other preferences, the applicants were deprived of their liberty and allegedly threatened with an automatic rifle. These were not the applicants’ actions, but those of other persons, actions which objectively raise genuine issues under the Convention. The Court therefore cannot accept the Russian Government’s objection, which must be rejected.ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

52.  The applicants complained of a breach of Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

53.  The applicants argued that they had been subjected to degrading treatment, contrary to Article 3 of the Convention. In particular, while they were detained at the checkpoint, their lives and health had been endangered by the unprovoked use of an automatic assault rifle in their near vicinity.

54.  The Russian Government argued that D.’s actions had not reached the minimum level of severity required for finding a breach of Article 3. They noted that it had not been proved that the shots had been fired in the applicants’ immediate vicinity. In any case, D. had been forced to fire several shots into the air, as a crowd of furious citizens surrounded him, threatened him with murder, did not obey his lawful orders and finally assaulted him in an attempt to take possession of his weapon. The use of the weapon was proportionate to the danger to D.’s life and health, both in his subjective perception and in the prevailing objective circumstances.

55.  The Moldovan Government essentially limited their arguments to their position on jurisdiction, namely that they had made every effort to ensure that the applicants’ rights had been observed.

56.  The Court notes from the outset that it is unable to determine the exact reason for which D. had used his weapon: either to threaten the persons gathered in front of him (the shooting having been prevented by S.) or as an act of self-defence, in reaction to threats to his life and faced with an angered crowd (where S.’s grabbing of the rifle could have been perceived by D., in the tense situation in which he found himself, as an attempt to take possession of his weapon; see, mutatis mutandis, Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 183-195, ECHR 2011 (extracts)). In either case, it is not clear that D.’s intention was to humiliate or threaten the applicants, who were not specifically targeted and did not suffer any physical harm from the shooting. While this lack of an intention in itself does not rule out the application of Article 3, the Court finds that the use of the weapon in the particular circumstances of the case and with respect to the applicants did not reach the minimum level of severity required for the application of Article 3 of the Convention.

57.  Accordingly, this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

58.  The applicants complained of a violation of Article 5 § 1 of the Convention, the relevant part of which 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:

...

(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;

...”Admissibility

59.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Merits

60.  The applicants submitted that they had been abusively detained by D. for almost five hours for having allegedly photographed a military object (checkpoint no. 9). Their passenger C. had photographed a billboard situated outside that checkpoint, but took no photographs at the checkpoint itself. In any event, there was no warning about any prohibition on taking photographs there, as proved by the minutes of the on-site investigation by a Moldovan prosecutor on 20 July 2005. They added that they had still not received the minutes of their arrest and had not seen the official reasons therefor.

61.  The applicants added that, in accordance with a decision of the JCC dated 29 July 1992, the parties’ military contingents had the right to detain persons for breaching the rules of the regime of state of emergency in the security zone, transferring them to the law enforcement authorities. Instead of transferring them to the law enforcement authorities, D. had detained them for almost five hours, despite the presence of Moldovan police one hour into the detention. They finally added that their detention was not formally recorded.

62.  The Moldovan Government essentially limited their arguments to their position on jurisdiction, namely that they had made every effort to ensure that the applicants’ rights were observed.

63.  The Russian Government argued that the prohibition on taking photographs of military facilities was common practice around the world and did not require detailed justification in their submissions. A sign prohibiting photos and video recording at the checkpoint had been installed, as evidenced by the inventory, which included two signs to that effect, from each side of the checkpoint. They submitted that the applicants’ detention for almost six hours had been in accordance with Article 5 § 1 (c) of the Convention, because there was a suspicion that they had committed an offence (“refusal to fulfil the legal requirements of the JCC peacekeeper to delete photographs of the military facility”) and there were sufficient reasons to believe that. Once released, they would have gone into hiding after the commission of the offence.

64.  After the passage of some fourteen years since the events, it was impossible to provide to the Court any procedural documents regarding the matter at hand.

65.  The Court reiterates that in proclaiming the “right to liberty”, paragraph 1 of Article 5 contemplates the physical liberty of the person. Accordingly, it is not concerned with mere restrictions on liberty of movement, which are governed by Article 2 of Protocol No. 4, with regard to persons lawfully within the territory of the State. Although the process of classification into one or other of these categories sometimes proves to be no easy task, in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 64, 15 December 2016, with the references therein; and Ilias and Ahmed v. Hungary [GC], no. 47287/15, § 211, 21 November 2019).

66.  In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting-point must be his or her specific situation and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question (Zelčs v. Latvia, no. 65367/16, § 34, 20 February 2020).

67.  The Court reiterates its established case-law to the effect that Article 5 § 1 may also apply to deprivation of liberty of a very short length (see, among many authorities, Shimovolos v. Russia, no. 30194/09, §§ 48‑50, 21 June 2011; Brega and Others v. Moldova, no. 61485/08, §§ 19 and 43, 24 January 2012; M.A. v. Cyprus, no. 41872/10, § 190, ECHR 2013 (extracts), and Zelčs, cited above, § 36).

68.  The Court finally reiterates its well-established case-law on Article 5 § 1, according to which any deprivation of liberty must not only be based on one of the exceptions listed in sub-paragraphs (a) to (f) but must also be “lawful”. Where the “lawfulness” of detention is in issue, including the question of whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law, but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see, for example, Del Río Prada v. Spain [GC], no. 42750/09, § 125, ECHR 2013, and Mozer, cited above, § 134).

69.  In the present case, the Russian Government did not contest that Article 5 was applicable to the applicants’ detention. Indeed, they argued that Article 5 § 1(c) applied, since the applicants had been arrested on a reasonable suspicion of having committed an offence (see paragraph 63 above). For its part, the Court also finds that Article 5 § 1(c) was applicable, since by the Russian Government’s own admission, the reason for detention had not been to verify documents or as a crowd control measure (cf. Austin and Others v. the United Kingdom [GC], nos. 39692/09 and 2 others, §§ 52‑69, ECHR 2012), but following the alleged commission of an offence and in order to prevent them from fleeing after the fact.

70.  The Court must next examine the issue of lawfulness of the applicants’ detention. In this regard it notes that neither D. (and any other authority involved in the applicants’ detention on 19-20 July 2005), nor the representatives of either of the respondent Governments, referred to any specific law which prohibited the taking of photographs near or at the checkpoint, or classified the checkpoint as a “military facility”. The Court considers that, given what was at stake for the applicants (deprivation of their liberty), it was not enough for the Russian Government simply to rely on “the common practice around the world” of prohibiting the photographing of military facilities (see paragraph 63 above), without referring to the specific legal provision which had been the ground for detention.

71.  Moreover, despite the Russian Government’s argument that the applicants had been detained on a reasonable suspicion of having committed an offence, they never specified which specific offence had allegedly been committed. In this context it is important that to date the applicants have not received a copy of any decision formally acknowledging their detention, specifying the offence which they had committed and giving reasons for the need to detain them (see paragraph 12 above). Such a decision should have been given to them shortly after their detention ended, allowing them the possibility of appealing against it. This undermines the Russian Government’s reference to the impossibility of submitting documents after the passing of 14 years.

72.  The foregoing considerations are sufficient to enable the Court to conclude that the applicants’ detention was not based on clear legal provisions (see, for instance, J.N. v. the United Kingdom, no. 37289/12, § 77, 19 May 2016) and did not satisfy the requirements of lawfulness for the purposes of Article 5 § 1. There has, accordingly, been a violation of that provision in the present case.Responsibility of the respondent StatesThe Republic of Moldova

73.  The Court must next determine whether the Republic of Moldova fulfilled its positive obligations to take appropriate and sufficient measures to secure the applicants’ rights under Article 5 § 1 of the Convention (see paragraph 29 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).

74.  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 and 1992 until July 2010, Moldova had taken all the measures in its power (Mozer, cited above, § 152). The events complained of in the present application concern events predating that case. It therefore sees no reason to reach a different conclusion from that reached in Mozer (§ 152).

75.  Turning to the second aspect of the positive obligations, namely to ensure respect for the applicant’s individual rights, the Court found in Ilaşcu and Others (cited above, §§ 348-52) that the Republic of Moldova had failed to comply fully 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 applicants submitted that the Republic of Moldova had not discharged its positive obligations since various State authorities replied that they could not take action on the territory under the de facto control of the “MRT”.

76.  The Court considers that the Moldovan authorities did not have any real means of preventing the applicants’ detention or of ensuring their immediate release. It is clear, however, that the applicants’ eventual release was at least in part due to the Moldovan Minister of Reintegration personally travelling to checkpoint no. 9 late at night on 19 July 2005 and negotiating their release (see paragraph 10 above). Moreover, the Moldovan prosecuting authorities started a criminal investigation into the applicants’ unlawful detention (see paragraphs 12 and 20 above), which had to be suspended after carrying out all actions that could have been undertaken by the Moldovan authorities. Finally, the Moldovan authorities took diplomatic action aiming at protecting the rights of human rights defenders in general within the context of the applicants’ case (see paragraph 22 above).

77.  In such circumstances, the Court cannot conclude that the Republic of Moldova failed to fulfil its positive obligations in respect of the applicants (see Mozer, cited above, § 154).

78.  There has therefore been no violation of Article 5 § 1 of the Convention by the Republic Moldova. The Russian Federation

79.  In so far as the responsibility of the Russian Federation is concerned, the Court has already established that the applicants came within Russian jurisdiction during the relevant events (see paragraph 34 above).

80.  Accordingly, the Court holds that there has been a violation of Article 5 § 1 of the Convention by the Russian Federation.ALLEGED VIOLATION OF ARTICLE 13 THE CONVENTION

81.  Lastly, the applicants complained of a violation of 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.”Admissibility

82.  The Russian Government argued that the applicants had not availed themselves of any remedies in Russia. There could thus not be any breach of Article 13.

83.  The Court considers that, for the same reasons as those mentioned in paragraphs 38-44 above, it cannot accept that the applicants failed to make a reasonable attempt to exhaust any available remedies.

84.  At the same time, in view of the fact that this provision cannot be relied upon alone, and of its finding concerning the complaint under Article 3 (see paragraph 57 above), the Court finds that the complaint under Article 13 taken in conjunction with Article 3 is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

85.  The Court notes that the complaint under Article 13 taken in conjunction with Article 5 § 1 is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Merits

86.  The Court considers that the impossibility of complaining about a decision to detain a person is to be examined not under Article 13, but under Article 5 § 4 of the Convention, which is lex specialis.

87.  The Court reiterates that Article 5 § 4 of the Convention entitles arrested or detained persons to a review of the procedural and substantive conditions which are essential for the “lawfulness” – in Convention terms – of the deprivation of their liberty. This means that the competent court has to consider not only compliance with the procedural requirements of domestic law, but also the reasonableness of the suspicion underpinning the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention (see  Butkevičius v. Lithuania, no. 48297/99, § 43, ECHR 2002‑II (extracts) and Mammadli v. Azerbaijan, no. 47145/14, § 72, 19 April 2018). In order to determine whether proceedings falling under Article 5 § 4 of the Convention provide the necessary guarantees, regard must be had to the particular nature of the circumstances in which they take place. The primary procedural guarantee flowing from Article 5 § 4 of the Convention is the right to an effective hearing by the court determining an appeal against detention (see Baş v. Turkey, no. 66448/17, § 212, 3 March 2020).

88.  It also recalls that no issue arises under Article 5 § 4 where the impugned detention is of a short detention and the detainee is released speedily before any judicial review of the lawfulness of his or her detention could take place (see Slivenko v. Latvia [GC], no. 48321/99, §§ 158-159, ECHR 2003‑X and Rozhkov v. Russia (no. 2), no. 38898/04, § 65, 31 January 2017). However, in situations where applicants are deprived of any access to judicial review of their detention, the Court has in the past found it warranted to examine the complaint under Article 5 § 4 regardless of the length of detention (see, for instance, Moustahi v. France, no. 9347/14, §§ 102-104, 25 June 2020).

89.  In the present case, the Court refers to its finding (see paragraphs 38 et seq. above) that the applicants did not have effective remedies in respect of their detention in the “MRT”, nor were they given the real possibility of pursuing any such remedy in Russia. Accordingly, the Court considers it necessary to examine the complaint under Article 5 § 4 separately.

90.  It finds that, in the absence of any decision concerning the applicants’ detention, they were effectively unable to have their detention reviewed by a court. The foregoing considerations are sufficient for the Court to conclude that there has been a violation of Article 5 § 4 of the Convention in the present case.

91.  The Court finds, for the same reasons as those mentioned in paragraphs 73-78 above, that the Republic of Moldova cannot be held responsible for the violation of Article 5 §§ 1 and 4 of the Convention.

92.  It also finds, for the same reasons as those mentioned in paragraphs 79 and 80 above, that the Russian Federation is responsible for the violation of Article 5 § 4 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

93.  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.”

94.  The Court notes at the outset that it did not find the Republic of Moldova responsible for any breach of the applicants’ rights. It will therefore not make an award in respect of this respondent Government.Non-pecuniary damage

95.  The applicants claimed 3,000 euros (EUR) each in respect of non‑pecuniary damage. They referred to the injustice and humiliation caused to them as a result of the events in the present case.

96.  The Russian Government argued that no compensation was due in the absence of any breach of the applicants’ rights. Alternatively, they invited the Court to follow its case-law concerning Article 41 of the Convention.

97.  The Court notes that it found Russia to be responsible for the violation of Article 5 §§ 1 and 4 of the Convention in the present case. In the light of the materials of the case, it awards the applicants EUR 3,000 each in respect of non-pecuniary damage, plus any tax that may be chargeable on the applicants.Costs and expenses

98.  The applicants claimed EUR 3,600 in respect of in respect of costs and expenses.

99.  The Russian Government made no specific submission, except the above-mentioned invitation to the Court to follow its case-law on the matter.

100.  The Court awards the applicants EUR 1,500 in respect of costs and expenses, plus any tax that may be chargeable to the applicants.

101.  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,Declares the complaints under Article 5 §§ 1 and 4 of the Convention admissible and the remainder of the application inadmissible;Holds that there has been no violation of Article 5 § 1 of the Convention by the Republic of Moldova;Holds that there has been a violation of Article 5 § 1 of the Convention by the Russian Federation;Holds that there has been no violation of Article 5 § 4 of the Convention by the Republic of Moldova;Holds that there has been a violation of Article 5 § 4 of the Convention by the Russian Federation;Holds

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

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

(ii)  EUR 1,500 (one thousand five hundred euros) jointly, plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(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 applicants’ 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

Full & Egal Universal Law Academy