European Court of Human Rights

 

 

SECOND SECTION

CASE OF RÎBAC AND RODINA-AGRO S.A. v. THE REPUBLIC OF MOLDOVA AND RUSSIA

(Application no. 28857/14)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

15 June 2021

 

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

In the case of Rîbac and Rodina-Agro S.A. v. the Republic of Moldova and Russia,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Aleš Pejchal, President,
          Egidijus Kūris,
          Carlo Ranzoni, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 28857/14) 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, Mr Pavel Rîbac and a company incorporated in Molodva, Rodina-Agro S.A. (“the applicants”), on 31 March 2014;

the decision to give notice of the application to the Moldovan Government (“the Government”);

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 18 May 2021,

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

INTRODUCTION

1.  This is a case concerning the alleged breach of the applicants’ right to freedom of peaceful assembly, guaranteed by Article 11 of the Convention, in the Transdniestrian region of Moldova.

THE FACTS

2.  The first applicant was born in 1951 and lives in Erjovo. The second applicant is a company incorporated in the Transdniestrian region of Moldova. The applicants were represented by Mr S.G. Popovschi, a lawyer practising in Tiraspol.

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.  On 6 November 2012 the former members of the kolkhoz Rodina from Erjovo and Sarateia villages created the second applicant with a view to defending their interests in respect of the plans by the Government of the “Moldovan Republic of Transnistria” (“MRT”) to transfer the land owned by the former kolkhoz to other persons.

7.  On 21 September 2013 the first applicant organised a public meeting for the former members of the kolkhoz Rodina with a view to discussing the matter about the land. Sixty-five persons participated in the meeting.

8.  On 23 September 2013 the Rîbniţa District Court imposed a fine of 145 MRT roubles on the first applicant for the breach of the rules of conducting public manifestations. It found that the first applicant had not obtained a prior authorisation for holding the manifestation. The first applicant challenged this decision before the MRT Supreme Court.

9.  On 31 October 2013 the MRT Supreme Court dismissed the first applicant’s appeal and upheld the decision of the Rîbniţa District Court.

RELEVANT LEGAL FRAMEWORK

10.  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 LAW

I.         JURISDICTION

11.  The Court must first determine whether the applicants fell within the jurisdiction of the respondent States for the purposes of the matters complained of, within the meaning of Article 1 of the Convention.

A.    The parties’ submissions

12.  The applicants submitted that both respondent Governments had jurisdiction.

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

14.  For their part, the Russian Government argued that the applicants 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.

B.     The Court’s assessment

15.  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.

16.  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, §§ 311-19), Catan and Others (cited above, §§ 103‑07) and Mozer (cited above, §§ 97-98).

17.  In so far as the Republic of Moldova is concerned, the Court notes that in its judgments in the cases of Ilaşcu, Catan and Mozer it found that although Moldova had no effective control over the Transdniestrian region, it followed from the fact that Moldova was the territorial State and that persons within that territory fell within its jurisdiction. However, its obligation, under Article 1 of the Convention, to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention was limited to that of taking the diplomatic, economic, judicial and other measures that were both in its power and in accordance with international law (see Ilaşcu and Others, cited above, § 333; Catan and Others, cited above, § 109; and Mozer, cited above, § 100). Moldova’s obligations under Article 1 of the Convention were found to be positive obligations (see Ilaşcu and Others, cited above, §§ 322 and 330-31; Catan and Others, cited above, §§ 109-10; and Mozer, cited above, § 99).

18.  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).

19.  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, cited above, §§ 116-20; Catan and Others, cited above, §§ 121-22; 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, §§ 110-11).

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

21.  It follows that the applicants in the present case fell within the jurisdiction of the Russian Federation within the meaning of Article 1 of the Convention. Consequently, the Court dismisses the Russian Government’s objections concerning the alleged incompatibility ratione personae and ratione loci of the applicants’ complaints with the provisions of the Convention.

22.  The Court will hereafter determine whether there has been any violation of the applicants’ rights under the Convention such as to engage the responsibility of either respondent State (see Mozer, cited above, § 112).

II.      ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

23.  The applicants complained of a violation of their right to freedom of assembly as provided by Article 11 of the Convention, which reads as follows:

“1.  Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2.  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

A.    Admissibility

24.  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 Vardanean v. the Republic of Moldova and Russia (no. 22200/10, §§ 27 and 31, 30 May 2017) and Bobeico and Others v. the Republic of Moldova and Russia (no. 30003/04, § 39, 23 October 2018). Since 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 concerning non-exhaustion of domestic remedies must be dismissed.

25.  However, the Court notes that only the first applicant was sanctioned for organising a public meeting and that the second applicant was not. In such circumstances, the second applicant cannot claim to be a “victim” of a violation of Article 11 of the Convention, within the meaning of Article 34 of the Convention. It follows that the complaint lodged by the second applicant is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3 (a), and must be rejected in accordance with Article 35 § 4 of the Convention.

26.  The Court finally notes that the complaint lodged by the first applicant (hereinafter “the applicant”) 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.

B.    Merits

27.  The applicant argued that his right to freedom of peaceful assembly as guaranteed by Article 11 of the Convention was breached as a result of the fine imposed on him for organising a public meeting.

28.  The Moldovan Government submitted that the interference with the applicant’s right to peaceful assembly had not been lawful because it had not been provided for by the domestic laws of the Republic of Moldova and that there has been no violation of the applicants’ rights by the Republic of Moldova. The Moldovan Government also submitted that the applicant had never informed the authorities of the Republic of Moldova about the facts giving rise to the present application.

29.  The Russian Government did not make any submissions on the merits of this complaint. Their position was that they did not have “jurisdiction” in the territory of the “MRT” and that they were therefore not in a position to make any observations on the merits of the case. They 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.

30.  It is undisputed between the parties, and the Court agrees, that the decision to sanction the applicant with a fine for his organising of a public meeting on 21 September 2012 amounted to an “interference by [a] public authority” with the applicant’s right to freedom of assembly under the first paragraph of Article 11. Such interference will entail a violation of Article 11 unless it is “prescribed by law”, has an aim or aims that are legitimate under paragraph 2 of that Article and is “necessary in a democratic society” to achieve such aim or aims.

31.  In so far as the lawfulness of the above interference is concerned, no elements in the present case allow the Court to consider that there was a legal basis for limiting the applicant’s right to freedom of peaceful assembly. This being so, the Court concludes that the interference in question was not lawful under domestic law. Accordingly, there has been a violation of Article 11 of the Convention.

32.  The Court must next determine whether the Republic of Moldova fulfilled its positive obligation to take appropriate and sufficient measures to secure the applicant’s 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).

33.  As regards the first aspect of Moldova’s obligation, namely 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.).

34.  Turning to the second part of the positive obligations, namely to ensure respect for the applicants’ rights, the Court notes that the applicant adduced no evidence to the effect that he had informed the Moldovan authorities of his problem. In such circumstances, the non-involvement of the Moldovan authorities in the case cannot be held against them.

35.  In the light of the foregoing, the Court concludes that the Republic of Moldova did not fail to fulfil its positive obligations in respect of the applicant. There has therefore been no violation of Article 11 of the Convention by the Republic of Moldova.

36.  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 19-20 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.

37.  In conclusion, and after having found that the applicant’s rights guaranteed by Article 11 have been breached (see paragraph 31 above), the Court holds that there has been a violation of that provision by the Russian Federation.

III.   APPLICATION OF ARTICLE 41 OF THE CONVENTION

38.  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.”

A.    Damage

39.  The applicant claimed 42 euros (EUR) in respect of pecuniary damage representing the equivalent of the fine paid by him and EUR 3,000 for non‑pecuniary damage.

40.  The respondent Governments argued that they were not responsible and should not be ordered to pay any damages to the applicant.

41.  The Court considers that the applicant is entitled to recover the money paid as a fine and to compensation of the non-pecuniary damage suffered. Therefore, it awards him the amounts claimed for pecuniary and non‑pecuniary damage in full, to be paid by the Russian Federation.

B.     Costs and expenses

42.  The applicant also claimed EUR 6,630 for the costs and expenses incurred before the Court.

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

44.  Regard being had to the documents in its possession, the Court considers it reasonable to award the sum of EUR 4,000 for costs and expenses, to be paid by the Russian Federation.

C.    Default interest

45.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares inadmissible the application lodged by Rodina-Agro S.A.;

2.      Declares the remainder of the application admissible in respect of the Republic of Moldova;

3.      Declares the remainder of the application admissible in respect of the Russian Federation;

4.      Holds that there has been no violation of Article 11 of the Convention by the Republic of Moldova;

5.      Holds that there has been a violation of Article 11 of the Convention by the Russian Federation;

6.      Holds

(a)  that the Russian Federation is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 42 (forty-two euros), plus any tax that may be chargeable, in respect of pecuniary damage;

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

(iii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicant, 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;

7.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 15 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Hasan Bakırcı                                                                       Aleš Pejchal
Deputy Registrar                                                                       President