European Court of Human Rights

 

 

SECOND SECTION

CASE OF ASLANIAN v. THE REPUBLIC OF MOLDOVA AND RUSSIA

(Application no. 74433/11)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

13 July 2021

 

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

In the case of Aslanian 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. 74433/11) 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 Russian national, Mr Rostom Aslanian (“the applicant”), on 28 November 2011;

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

the parties’ observations;

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

Having deliberated in private on 22 June 2021,

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

INTRODUCTION

1.  The case concerns the applicant’s conviction for refusing on religious grounds military service in the self-proclaimed “Moldovan Republic of Transdniestria” (the “MRT”) - see for more details Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 28-185, ECHR 2004-II and Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, §§ 8-42, ECHR 2012 (extracts). The applicant complained under Articles 9 and 14 of the Convention.

THE FACTS

2.  The applicant was born in 1989 and lives in Vărăncău, Moldova. The applicant was represented by Mr R. Cook and Mr J. Andrik, lawyers practising in London.

3.  The Governments were represented by their Agents.

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

5.  The applicant is member of the religious community of Jehovah’s Witnesses in the “MRT”.

6.  Becoming eligible for the draft, he requested the “MRT” authorities to be assigned to civilian service instead of compulsory military service on grounds of his religious conscience and beliefs. In December 2010 his request was denied and a criminal investigation on charges of draft evasion was initiated against him by the “MRT” authorities.

7.  On 29 March 2011 the “Rîbnița City and Region Court” convicted the applicant on charges of draft evasion and sentenced him to one year’s imprisonment. The applicant was taken into custody in the courtroom.

8.  On 7 June 2012 the “MRT” Supreme Court upheld the first-instance judgment.

9.  The applicant was released from detention on 29 March 2012 after having fully served his sentence.

RELEVANT MATERIALS

10.  The relevant materials have been 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 determine whether the applicant falls within the jurisdiction of the respondent States for the purposes of the matters complained of, within the meaning of Article 1 of the Convention.

12.  The applicant submitted that in light of the Court’s constant case-law both respondent Governments had jurisdiction.

13.  The Moldovan Government submitted that they had positive obligations to secure the applicant’s rights and the Russian Federation had jurisdiction due to their continuous military presence in the region.

14.  For their part, the Russian Government argued that the applicant did not fall within their jurisdiction.

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 applicant 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, §§ 311-319), Catan and Others (cited above, §§ 103-107) and Mozer (cited above, §§ 97-98).

17.  In so far as the Republic of Moldova is concerned, the Court notes that in Ilaşcu, Catan and Mozer it found that although Moldova had no effective control over the Transdniestrian region, it followed from the fact that Moldova was the territorial State 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.  The Court notes that in Ilașcu and Others it has already found that the Russian Federation contributed both militarily and politically to the creation of a separatist regime in the region of Transdniestria in 1991-1992 (see Ilaşcu and Others, cited above, § 382). The Court also found in subsequent cases concerning the Transdniestrian region that up until at least 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, no. 23687/05, §§ 116‑120, 15 November 2011; Catan and Others, cited above, §§ 121-122; and Mozer, cited above, §§ 108 and 110). The Court concluded in Mozer that the “MRT”‘s high level of dependency on Russian support provided a strong indication that the Russian Federation continued to exercise effective control and a decisive influence over the Transdniestrian authorities and that, therefore, the applicant fell within that State’s jurisdiction under Article 1 of the Convention (Mozer, cited above, §§ 110-111).

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

21.  It follows that the applicant in the present case fell within the jurisdiction of the Russian Federation under Article 1 of the Convention.

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

II.      ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION

23.  The applicant complained that his conviction for having opposed military service on religious grounds, despite his willingness to carry out alternative service, was in breach of his freedom of conscience as provided in Article 9 of the Convention, which reads as follows:

“1.  Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2.  Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

A.    Admissibility

24.  The Moldovan Government submitted that the applicant had not notified in any way the Moldovan authorities about his case and therefore failed to exhaust the remedies available to him in Moldova. They argued therefore that the parts of the application concerning Moldova should be declared inadmissible for failure to exhaust domestic remedies in Moldova.

25.  The Russian Government also submitted that the application should be rejected for failure to exhaust domestic remedies before either Moldovan courts or Russian courts.

26.  The applicant contended that there were no effective remedies which needed to be exhausted in either State.

27.  The Court notes that a similar objection was raised by the Moldovan Government and dismissed by the Court in Mozer (cited above, §§ 115‑121), and by both Governments and dismissed 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 neither of the Governments specified the domestic remedies which the applicant should have exhausted and no new arguments have been adduced, the Court sees no reason to reach a different conclusion in this case. It follows that the Governments’ objections of non-exhaustion of domestic remedies must be dismissed.

28.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other ground. The Court therefore declares it admissible.

B.    Merits

29.  The applicant submitted that his conviction had amounted to an unlawful and disproportionate interference with his right to manifest his religious beliefs. He noted that he did not seek to evade military service and was willing to perform alternative service. He contended that both respondent States had accepted international commitments to provide for alternative civilian service to religiously‑motivated conscientious objectors like himself but had failed to secure the implementation of those commitments in the “MRT”.

30.  The Moldovan Government noted that if the facts described by the applicant were accurate, than the interference with his rights was contrary to Article 9 of the Convention as not provided under Moldovan law, which allowed for alternative civilian service.

31.  The Russian Government made no specific submissions.

32.  The Court notes that States are bound by primarily negative undertaking to abstain from any interference with the rights guaranteed by Article 9 of the Convention. The Court found that an interference took place where an individual failed to report for military service as a manifestation of his religious beliefs and was subsequently convicted for draft evasion or when an individual’s request, motivated by religious beliefs or convictions, to be drafted for alternative civilian service was dismissed by national authorities. Such interference will be contrary to Article 9 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims set out in paragraph 2 and is “necessary in a democratic society” (see, mutatis mutandis, Bayatyan v. Armenia [GC], no. 23459/03, §112, ECHR 2011; Adyan and Others v. Armenia, no. 75604/11, § 60, 12 October 2017).

33.  The Court finds that the applicant’s conviction for draft evasion therefore amounted to an interference with his freedom to manifest his religion as guaranteed by Article 9 § 1. In so far as the lawfulness of the interference is concerned, no elements in the present case allow the Court to consider that there was a legal basis for interfering with the rights of the applicant guaranteed by Article 9 of the Convention. Accordingly, there has been a violation of Article 9 to the Convention.

34.  The Court must next determine whether the Republic of Moldova fulfilled its positive obligations 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 the individual applicant’s rights (see Mozer, cited above, § 151).

35.  As regards the first aspect of Moldova’s obligations, 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). The events complained of in the present case took place in 2011-2012. The Court notes that none of the parties submitted any evidence that the Republic of Moldova had changed its position towards the Transdniestrian issue during this period of time and it therefore sees no reason to reach a different conclusion from that reached in Mozer (ibidem).

36.  Turning to the second part of the positive obligations, namely to ensure respect for the applicant’s rights, the Court notes that the applicant adduced no evidence to the effect that he had informed the Moldovan authorities of his situation. In such circumstances, the non-involvement of the Moldovan authorities in the case of the applicant cannot be held against them (see also Grama and Dîrul v. the Republic of Moldova and Russia, nos. 28432/06 and 5665/07, § 35, 15 October 2019).

37.  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 9 of the Convention by the Republic of Moldova.

38.  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 19-21 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 applicant’s rights.

39.  In conclusion, and after having found that the applicant’s rights guaranteed by Article 9 of the Convention have been breached (see paragraph 33 above), the Court holds that there has been a violation of that provision by the Russian Federation.

III.   ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ in conjunction with Article 9 OF THE CONVENTION

40.  The applicant complained that his conviction was the result of a discrimination policy against Jehovah’s Witnesses, contrary to Article 14 of the Convention.

41.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

42.  However, in the present case, in view of its finding that there has been a violation of Article 9 of the Convention, the Court concludes that there is no need to examine separately the applicant’s complaint under Article 14 of the Convention.

IV.   APPLICATION OF ARTICLE 41 OF THE CONVENTION

43.  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.”

44.  The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage and EUR 5,555 in respect of costs and expenses incurred at national level (EUR 555) and in proceedings before the Court (EUR 5,000). He submitted contracts concluded with his representatives.

45.  The respondent Governments considered the applicant’s claims excessive and asked the Court to dismiss them.

46.  In light of the violation found by the Russian Federation, the Court awards the applicant’s claims in full, plus any tax that may be chargeable on the applicant.

47.  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 the application admissible;

2.      Holds that there has been no violation of Article 9 of the Convention by the Republic of Moldova;

3.      Holds that there has been a violation of Article 9 of the Convention by the Russian Federation;

4.      Holds that there is no need to examine the complaint under Article 14 of the Convention;

5.      Holds

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

(i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage;

(ii) EUR 5,555 (five thousand five hundred fifty five euros), plus any tax that may be chargeable, 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.

Done in English, and notified in writing on 13 July 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Hasan Bakırcı                                                                      Carlo Ranzoni
Deputy Registrar                                                                       President