By Linda Hamid, Research Fellow at the Leuven Centre for Global Governance Studies – Institute for International Law, KU Leuven
On 4 December 2019, during a research stay in the Republic of Moldova, I travelled to the village of Doroțcaia, where I visited the ‘Ștefan cel Mare și Sfânt’ lyceum and met with the principal, Ms Eleonora Cercavschi. Until August 2002, the school had been situated in Grigoriopol, a small town in the Moldavian Republic of Transdniestria (MRT or Transdniestria), which is a breakaway region in Moldova that declared independence in 1991, but has not been recognized by the international community. However, in the wake of events that will be described below, the school was evacuated from its premises by MRT ‘police’ and forced to relocate 20 km away, in Moldovan-controlled territory. As can be gathered from this post’s title, the Grigoriopol lyceum is one of the Romanian-language schools in Transdniestria concerned by the landmark European Court of Human Rights (ECtHR or the Court) Grand Chamber judgment Catan and Others v. Moldova and Russia. Ms Cercavschi, who together with her daughter was one of the applicants in the case, graciously answered my questions and recounted the circumstances leading to the school’s predicament. This post is based on insights acquired from this discussion and a few other in-depth interviews with key actors in Moldova and Transdniestria, as well as an analysis of both legal and political texts.
In what follows, I will employ the Catan judgment to briefly illustrate the quandaries surrounding the (non-)execution of ECtHR judgments in circumstances as complex as those in Transdniestria, where various actors, State and non-state alike, vie for control and influence. Inside this tangled web, legally binding obligations arising from ECtHR judgments and political commitments extraneous to them may, at times, mutually reinforce each other to give some incidental effects to the former. This, however, does not transpire as traditionally envisioned by Article 46 of the European Convention on Human Rights (ECHR or Convention), i.e. through the execution of the judgment by the State bound by it, but rather indirectly, as a byproduct of two different but ultimately complementary processes. In referring to this byproduct, I will use the terms (indirect and partial) ‘implementation’ or ‘effects’. To me, they have a broader meaning than ‘execution’, in that they may also refer to the (persuasive) authority of the Court’s judgments and their influence on other actors than the State(s) directly bound to execute them, such as will be described in this post.
The Romanian-language schools in Transdniestria and the lingering question of the execution of the Catan judgment by Russia
The Romanian-language schools’ crisis began in 1992, when the Transdniestrian ‘Supreme Council’ adopted a ‘law on languages’ which stipulated that Moldovan (another term for the Romanian language spoken in Moldova) must be written in Cyrillic instead of the Latin alphabet. To implement this policy, the separatist authorities forbade the use of Latin-script in schools across Transdniestria. However, eight Romanian-language schools, including the ‘Ștefan cel Mare și Sfânt’ lyceum, continued to use the Latin-script, at times clandestinely. As a consequence, the schools suffered through a vigorous campaign of intimidation by MRT authorities. This included evacuation from some school buildings, vandalism of others, arbitrary spikes in rent fees, interruptions to water and electricity supplies, and cumbersome border checks for goods, as well as teachers and pupils in some cases.
Seeing the crisis deepen, parents and pupils from three of these schools lodged a complaint against Moldova and Russia before the ECtHR, claiming a breach of their right to education under Article 2, Protocol No. 1 to the ECHR. On 19 October 2012, the Court delivered its assessment of their grievances in the Catan judgment. Whereas the finer points of the case have already been deftly analyzed elsewhere (e.g. here), a brief reminder of the main findings in the case remains necessary. First, as to the question of jurisdiction under Article 1 of the ECHR, the Court, keeping with its previous Transdniestria-related jurisprudence, found that the applicants fell within the jurisdiction of both Moldova and Russia, the former as the ‘territorial State’ (§§ 109-110), and the latter by virtue of its ‘effective control and decisive influence’ over the MRT (§§ 111-123). Second, in terms of merits, the ECtHR held that the facts amounted to an interference with the applicants’ right to education (§§ 141-144). In view of its efforts to support the applicants, Moldova was found to have fulfilled its positive obligations (§§ 145-148). Conversely, given its economic, political, and military support to the MRT, Russia was held responsible under the Convention for breaching the applicants’ right to education (§§ 149-150). Catan is also the leading case for Bobeico and Others v. Moldova and Russia and Iovcev and Others v. Moldova and Russia, two repetitive cases referring to four other Romanian-language schools.
On 5 December 2019, the day after my visit to the Grigoriopol lyceum, the Council of Europe’s Committee of Ministers issued a decision concerning its supervision of the execution of Catan. In it, the Committee noted that, some seven years onwards, Russia had made no real progress in providing a concrete action plan that would fully respond to the judgment or paying the just satisfaction awarded by the Court. The repetitive cases, one currently under early supervision, the other soon to enter the process, will probably suffer the same fate. In its November 2019 communication to the Committee, the Russian government had argued that the finding that it incurs responsibility for violations occurring on the territory of another State poses practical implementation problems, thus invoking the complexity of the execution to explain non-execution. In reality though, as with other judgments relating to Transdniestria, the reasons are more likely strategic and political rather than anything else. Indeed, execution would go against Russia’s persistent submissions in such cases, i.e. that it does not exercise effective control or decisive influence over the MRT and that the Court’s assessment as to its responsibility is inconsistent with the general approach under international law.
Interestingly though, the past few years have witnessed an improvement in the situation of the Latin-script schools. While this does not directly stem from the Catan judgment but from a different process altogether, I believe that it cannot be entirely divorced from the persuasive authority of the Court’s judgment. This is why, as explained at the outset, I construe these developments as an indirect and partial implementation of the judgment. In so doing, I do not intend to downplay the gravity of Russia’s non-execution. This remains a breach of its unconditional obligation under Article 46, paragraph 1 of the ECHR and may very well lead to infringement proceedings under paragraph 4 of the same Article. What I want to highlight, however, is that to effectively protect human rights in places like Transdniestria, situated at the crossroad between (il)legality and effectiveness in international law, the international community might have to start thinking outside the traditional (Stat-centered) confines and pursue, as well, alternative processes.
The Transdniestrian settlement process and the partial and indirect effects of the Catan judgment
In 1993, the Organization for Security and Cooperation in Europe (OSCE) established a Mission to Moldova, mainly mandated to facilitate a final and comprehensive political settlement of the 1992 Moldovan-Transdniestrian armed conflict. This process is geared towards achieving a special status for Transdniestria within the internationally recognized borders of the Republic of Moldova. Moldova and Transdniestria (the ‘Sides’) are its main parties and, as such, often meet in a 1+1 format between their Chief Negotiators. At the international level, the negotiation process takes place in the 5+2 format which includes, in addition to the Sides, the OSCE Mission to Moldova, Russia, and Ukraine as mediators, as well as the European Union and the United States as observers. The 2016 5+2 meeting held in Berlin resulted in the so-called ‘Berlin-plus package’, a Protocol whereby the Sides settled to work together on a ‘package of eight’ jointly identified priority issues, the functioning of the Romanian-language schools in Transdniestria among them.
A year later, the Sides signed a Protocol Decision wherein they agreed to resolve the problems that obstruct the adequate functioning of the Latin-script schools. The aim, as indicated in the document, is to ensure favorable conditions for the functioning of the schools and thus secure the right to education. While, of course, there is no mention of the Catan judgment, the problems identified in the Protocol Decision largely coincide with the issues that had been deemed by the Court to interfere with the applicants’ right to education. Therefore, since progress made in the implementation of this agreement has brought about an improvement in the situation of the concerned schools, it has also alleviated some of the substantive issues identified in Catan. As reported by the OSCE, most of the schools now operate with symbolic rental and utilities fees, and pupils and teachers, as well as requisite goods, move more easily past MRT check-points. However, the Protocol Decision has yet to be fully implemented, in particular concerning the subject of the schools’ property and land ownership, a point that is worded rather vaguely in the document.
In the absence of proper execution, these developments have arguably given some incidental effects to the Catan judgment. These effects are partial because, although they have alleviated some of the issues identified in the judgment, the situation is far from being fully and permanently resolved. Since they do not stem directly from the Court’s judgment and are not the result of measures that should have been taken by the State bound by it, these effects are indirect. I do believe, however, that there is a connection between Catan and these seemingly unrelated but complementary developments. Most likely, it was the persuasive authority of the judgment that gave the issue the urgency needed to land on the OSCE negotiating table. Moreover, the move was probably championed by Moldova in an effort to demonstrate that it takes its positive obligations under Article 1 of the ECHR seriously. None of this, of course, can or should supplant the execution of the judgment by Russia. Meanwhile though, these incidental but positive effects should be acknowledged and, where possible, expanded. While not a cure-all, they are surely better than nothing.
Finally, these developments, as well as the potential for future progress, should nonetheless be assessed with cautious optimism. Indeed, since they depend on the political will of the Sides in advancing the conflict settlement process, they are rather fragile. Consider, for instance, that the ‘law on languages’ remains in force in Transdniestria and, as such, the improvements in the functioning of the Latin-script schools are rooted in political goodwill, and not the law. Therefore, they may be easily backtracked without any legal consequences for the local administration, which benefits from impunity in the context of the judicial process as it cannot be held directly responsible under international law. In this respect, on 29 November 2019, in Tiraspol, Mr Alexander Stetsiuk, the MRT ‘Deputy Minister for Foreign Affairs’, conveyed to me the local leadership’s stance on Catan and similar ECtHR judgments. For them, these judgments are ‘political’, as it is the local administration, and not Moldova or Russia, who exercises power and jurisdiction over Transdniestria. As such, he added, they are ‘ready to be part of the [ECtHR] process’. But we all understand, of course, what was meant by this: agency in the form of recognition as a State.
By way of conclusion: let’s mix it up to move it forward
The Catan judgment can certainly be hailed for filling a legal vacuum in the protection of human rights in Transdniestria. As Ms Cercavschi disclosed to me during our discussion, for her, the judgment also amounts to a historical fact or, in other words, an international acknowledgement of the struggle of the Romanian-speaking community in Transdniestria to safeguard the right to education in one’s mother tongue. For individuals living there, judgments like these may be the only international legal remedy that they could ever aspire to. Without execution, however, they are a remedy in name only. At the same time, as illustrated here, separate but ultimately complementary processes may attain some of the effects that these judgments were meant to, but have yet to achieve. This is not to say that the judicial process should not continue to be pursued. On the contrary, the Court’s findings on substantive rights should inform any separate political processes and their persuasive authority for other actors than the State(s) bound by them must not be downplayed. However, neither should their limitations, which is why I trust that, in situations as tricky as these, the legal process could be supplemented by (a) political one(s).
In the abovementioned OSCE process, some of the limitations inherent in the judicial process have been surmounted without unwanted implications. It was probably three main factors that played a role in the moderate, but nonetheless significant improvement of the Romanian-language schools’ situation. First, by its very nature, the settlement process allows the Transdniestrian Side to manifest agency without recognition, which also means that its de facto power can be harnessed to resolve issues such as those identified in Catan. Second, the fact that the improvement of the schools’ situation is framed as a confidence-building measure between the two Sides, thus laying less focus on ascribing responsibility for a wrongful act under international law, and more on the substance of the right to education itself. Third, the fact that Moldova, although not found in breach in Catan, seems to have understood the Court’s consistent message concerning its residual positive obligations in Transdniestria and is thus taking a more proactive stance.
Relevant United Nations human rights bodies, as well as the Council of Europe, could surely replicate some of these conditions. Last year, the outgoing Secretary General of the Council of Europe, as well the incoming one, emphasized the organization’s commitment to step-up its efforts in addressing human rights challenges in ‘grey zones’ such as Transdniestria. Recently, during a country visit to Moldova, the Commissioner for Human Rights, Dunja Mijatović, also met with the separatist authorities in Transdniestria. While the visit’s report has not been published yet, a news item on the Commissioner’s website mentions the issues discussed with the local leadership, which included the situation of the Latin-script schools. This is a good avenue to raise the substantive human rights issues identified by the Court’s judgment(s) and I firmly believe that the Commissioner’s office, as well as other Council of Europe monitoring mechanisms, should not shy away from further engagement without recognition. Access for monitoring bodies is the first step in extending the organization’s human rights standards to such regions and it can hardly be obtained otherwise. Eventually, the end goal of any such processes, be they legal, political, or intertwined, should be to place human rights at their centre and prevent individuals like Ms Cercavschi from becoming an auxiliary to what is ultimately a territorial dispute. We are not there yet, but we could be getting closer.