Ilașcu: from contested precedent to well-established case-law

By Linda Hamid, Research Fellow at the Leuven Centre for Global Governance Studies – Institute for International Law, KU Leuven

On 15 October 2019, the European Court of Human Rights delivered a judgment in the case of Grama and Dîrul v. The Republic of Moldova and Russia, whereby it found a violation of Art. 1, Protocol No. 1 and Art. 13 to the/of the Convention by the Russian Federation only. More specifically, the Court held that the seizure of the applicants’ cars and the imposition of fines on them by the authorities of the ‘Moldavian Republic of Transdniestria’ (the MRT or Transdniestria) and the lack of an effective remedy for the applicants to assert their rights in the face of the actions of the MRT constituted a breach of said Convention provisions. Transdniestria is a breakaway region in Moldova that declared independence in 1991 but remains unrecognized by the international community.

Essentially, this is another judgment in by now a relatively long line of Ilașcu-type cases in that it raises an important issue that is preliminary to any assessment by the Court of the alleged violations invoked by the applicants: the respondent States’ jurisdiction over Transdniestria within the meaning of Art. 1 of the Convention. In Ilașcu and Others v. The Republic of Moldova and Russia, it was held that both States may be found to exercise jurisdiction over the MRT, the former on the basis of its sovereign title over the region – its jurisdiction being limited to certain positive obligations –, and the latter on the basis of its ‘effective authority or, at the very least [its] decisive influence’ over the MRT (§ 392). Like in the majority of Ilașcu-type cases, in Grama and Dîrul Moldova was found to have complied with its positive obligations.

Judgments in cases referring to the applicability of the ECHR to breakaway territories outside the control of their de jure sovereign are generally welcome with great fanfare and then carefully dissected and commented by interested scholars. However, a recent string of as much as 17 judgments concerning acts mainly committed by the authorities in Transdniestria – starting with Bobeico and Others v. The Republic of Moldova and Russia on 23 October 2018 and continuing throughout 2019 with 16 more judgments –, have gone almost entirely unnoticed by the usual commentators. The reason this has been so has to do, I suspect, with the fact that they were examined and delivered by the Court sitting as a Committee of three judges which, for anyone even remotely familiar with HUDOC, means that one must be quite deliberate in searching for and finding these judgments in the Court’s case-law database.

This post does not intend to exhaustively discuss the facts underlying these cases or the Court’s assessment as to the various Convention rights invoked by the applicants, but merely to comment on the two takeaways I have found most relevant after a cursory examination of these 17 cases, namely (i) on what it means that the judgments were delivered by a three-judge Committee; (ii) on the finding, in two of these cases, that Moldova failed to fulfil its positive obligations toward the respective applicants and was thus found responsible of breaches of the ECHR alongside Russia.

The competence of Committees and what it means for Ilașcu-type cases

Under Art. 28 § 1 (b) of the Convention, a Committee deciding on an individual application may ‘declare it admissible and render at the same time a judgment on the merits if the underlying question in the case, concerning the interpretation or the application of the Convention or the Protocols thereto, is already the subject of well-established case-law of the Court.’ According to § 2 of the same provision, these judgments are final. Introduced by Protocol no. 14 to the Convention, this judicial formation and the well-established case-law procedure (WECL) aims, in essence, to ease the Court’s arguably heavy burden of repetitive cases in situations where the legal issues brought before it have already been examined and solved in its previous cases.

So what does this then mean for the so-called Ilașcu-type cases? First, of course, that the substantive rights invoked by the applicants in these cases raise run-of-the-mill legal questions arguably suitable for the WECL procedure. Second, and more importantly, that the main contentious point of such cases, which is the Court’s much criticized approach toward the Art. 1 issue of jurisdiction over acts and facts occurring in Transdniestria and the basis of the ensuing responsibility of Russia and (sometimes) Moldova for breaches of the Convention is now WECL. Therefore, the underlying question of the two respondents’ jurisdiction over the MRT is currently seen as solved.

In view of the above, it is safe to assume that we should no longer expect from the Court, or at least not at any time soon, further answers to the questions still lingering after Ilașcu (and not quite clarified in either Catan and Others v. The Republic of Moldova and Russia or, more recently, Mozer v. The Republic of Moldova and Russia) as to its approach toward the concepts of jurisdiction, state responsibility, and attribution of conduct. Instead, we should probably anticipate a fast-tracking of the remaining Transdniestria-related cases on the Court’s docket via the WECL procedure, without further in-depth discussion on some of the finer jurisdiction-related points, such as Russia’s level of control over the MRT, or the utility of Moldova’s residual positive obligations. This is probably also one of the reasons why, as it stems from these recent judgments, Russia has consistently objected to the examination of these cases in a Committee formation.

An issue I find most problematic in this context is the time lapse between the facts of the case in Ilașcu and the facts in the 17 cases examined as WECL, i.e. somewhere between 10 to 15 years, depending on the case in question. In Mozer, which is the most recent (and last) Grand Chamber judgment concerning acts committed by the MRT – the judgment was delivered on 23 February 2016 –, the Court took into consideration, in addition to factual findings from previous cases such as Ilașcu or Catan, various developments in Russian-Transdniestrian relations contemporary to the facts of the case to support its finding ‘that Russia continues to exercise effective control and a decisive influence over the “MRT” authorities’ (§ 110). This determination was qualified, as the Court itself admitted, in that it was found to run up until the period of July 2010. However, in some of the 17 cases discussed here, where the underlying facts were as recent as 2014, the Court seems to no longer apply the high level of scrutiny it would have in a Grand Chamber or Chamber judgment. Instead, the Court limits itself to a simple comment indicating that, barring any new information to the contrary, its conclusion in Mozer – i.e. that at least until July 2010, Russia exercised jurisdiction over Transdniestria – is readily applicable to the period concerned in the respective case (see e.g. Iovcev and Others v. The Republic of Moldova and Russia, § 49).

Given that Russia’s jurisdiction over the separatist republic is essentially grounded in its supposed control and influence over the MRT, which is said to have decreased in recent years, the Court’s WECL short-cut essentially robs this issue of the careful consideration it should be entitled to. Indeed, according to some recent reports, Russia’s economic, political, and military support to Transdniestria has been considerably wearing off in recent years (see e.g. Thomas de Waal’s Transdniestria Today paper). Whether these developments have any bearing on the Court’s already lax standard in establishing Russia’s jurisdiction over Transdniestria is something that the Court should further consider. From the content of these judgments, it seems that the Russian Government failed to bring any new factual evidence concerning developments in its relations with Transdniestria. Instead, it seems to be playing the same losing card over and over again in that it reiterates its customary contention that the Court’s approach to the issue of jurisdiction was, and continues to be, incorrect and a deviation from the usual approach under public international law. This argument has been consistently dismissed by the Court. While, admittedly, a change in strategy might also mean that the government concedes to the Court on conceptual matters and, implicitly, admits that it had exercised jurisdiction over Transdniestria, playing along the lines drawn by the Court in this sense might arguably serve it better in the future.

While the Court, under Art. 38 of the ECHR, ‘may undertake an investigation’ to see whether its initial conclusions in Ilașcu still stand more than 15 years later, the examination of these more recent cases under the WECL procedure seems to indicate that the Court is not at all keen to undertake an on-the-spot investigation in Transdniestria. If my knowledge is up to date, the only such fact-finding mission took place in the context of the Ilașcu proceedings from 10 to 15 March 2003 and was ‘directed towards ascertaining the relevant facts in order to be able to determine whether Moldova and the Russian Federation had jurisdiction, particularly over the situation in Transdniestria, relations between Transdniestria, Moldova and the Russian Federation …’. We are now in late 2019 and the facts examined in these cases are increasingly more recent. In light of the ever-changing dynamics in the relations between Russia, Transdniestria and Moldova, a fact-finding mission would arguably help the Court clarify whether its initial conclusions, which it reached more than fifteen years ago, still stand true.

Moldova’s positive obligations under Art. 1 of the ECHR

On a more positive note (no pun intended…), it seems that the Court’s Ilașcu approach as to Moldova’s residual positive obligations to secure Convention rights in Transdniestria seems to have found a less criticisable applicability in 2 of the 17 Committee judgments referred to here. As a reminder for the reader who is unfamiliar with the Court’s findings in Ilașcu re Moldova’s positive obligations, it was held that

‘On the basis of all the material in its possession, the Court considers that the Moldovan Government, the only legitimate government of the Republic of Moldova under international law, does not exercise authority over part of its territory, namely that part which is under the effective control of the “MRT”. […] However, even in the absence of effective control over the Transdniestrian region, Moldova still has a positive obligation under Article 1 of the Convention to take the diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention.’ (§§ 330-331)

The Court then clarified that Moldova’s positive obligations refer to (i) measures needed to re-establish its control over Transdniestrian territory as an expression of its jurisdiction; and (ii) measures meant to ensure respect for individual applicants’ rights (§§ 339-340). Since, from the very onset of the hostilities in and around Transdniestria in 1991-92, Moldova was seen to have taken all the measures within its power to re-establish control over the breakaway region, the first aspect of its positive obligations was found to be fulfilled (§§ 341-345). As to the second aspect, the Court found that Moldova had not complied with its obligation to ensure respect for the applicants’ rights as it failed to take all the measures arguably available to it in the course of negotiations with the MRT and Russian authorities to bring an end to the breach of the applicants’ rights.

This approach has been heavily criticized in the literature. The first aspect of the positive obligations has been perceived as having a political, rather than a judicial undertone, whereas the second has been criticised on grounds that what should matter for the purpose of jurisdiction is only a State’s capacity to act, not its title over territory. Overall, this approach has been described as ‘meaningless’ and found to undermine the Court’s findings in other relevant cases (e.g. Loizidou v. Turkey or Al-Skeini and Others v. The United Kingdom) as to the ‘basic idea that jurisdiction is a factual exercise of State power’ over either territory or individuals (see, among others, this recent article by Milanović and Papić). Given that respect for individual rights in Transdniestria essentially depends on the conduct of local authorities, Moldova’s so-called positive obligations have generally been deemed to have a very limited utility. This is probably also why, after Ilașcu, Moldova was rarely found to have violated them.

Indeed, if my quick searches are correct, Moldova was found in breach – of the second aspect of its positive obligations – only on three other occasions: two of these are among the 17 judgments more generally discussed in this post, namely Negruță v. The Republic of Moldova and Russia and Filin v. The Republic of Moldova and Russia, while the other one is Braga v. The Republic of Moldova and Russia, which was delivered on 17 October 2017 by the Court sitting (still) as a Chamber. In Ilașcu, Moldova was found not to have fulfilled this second aspect of its positive obligations after having failed to adequately broach the applicants’ situation in the context of negotiations with the MRT and Russian authorities. As such, in Ilașcu, Moldova’s positive obligations seem to have been grounded almost entirely in its sovereign title over the breakaway region and, in consequence, almost fully linked to the diplomatic measures it could and should have taken to safeguard the applicants’ rights. In the three judgments mentioned above, Moldova’s positive obligations seem to have found a utility that was most likely not envisioned by the critics of this approach and that is, in view of the facts underlying these cases, grounded in a more factual exercise of power or, at the very least, a more concrete capacity to act in a manner that might actually prevent the violation of individual rights.

In Braga, Negruța and Filin, the Court found that Moldova had breached its positive obligations with respect to a number of Convention provisions (i.e. Arts. 3, 5 and/or 13 and 34) in that the respective applicants had been on Moldovan soil when (i) apprehended either by or in the presence of Moldovan officials and then transferred to Transdniestria (Negruța); (ii) apprehended by Transdniestrian officers and then transferred to the MRT – unclear from the Moldovan Government’s submissions whether the events happened with the acquiescence of the Moldovan authorities within the framework of some sort of cooperation between Moldovan and MRT authorities (Filin); (iii) ‘despite having complete control over the applicant during his detention in the Republic of Moldova’, the Moldovan authorities failed to prevent the applicant’s transfer back to the MRT (Braga, § 46). Therefore, by virtue of the applicants’ physical presence on Moldovan soil and the authorities’ ensuing control or potential for control over the situation that led to the subsequent human rights violations, Moldova could have meaningfully acted to ensure respect for the applicants’ rights. The Court’s approach to Moldova’s residual positive obligations seems to have found its utility after all.

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