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The European Court of Human Rights: Catan and Others v. Moldova and Russia

Published online by Cambridge University Press:  20 January 2017

Jan Arno Hessbruegge
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Extract

On October 19, 2012, the Grand Chamber of the European Court of Human Rights (the Court) ruled that policies pursued by de facto authorities in the Transdniestrian region of the Republic of Moldova aimed at suppressing Moldovan-language education violated the right to education of the affected children and their parents. The Court held Russia responsible for these violations by virtue of the continued vital support Russia provides to the de facto authorities. Meanwhile, the Court found Moldova to have complied with residual human rights obligations it retained, despite lacking effective control over Transdniestria. This important judgment develops the jurisprudence of the Court in relation to human rights violations arising from conduct of de facto authorities. However, it does not fully clarify the standards the Court applies in attributing their conduct to third states.

Type
International Legal Documents
Information
International Legal Materials , Volume 52 , Issue 1 , February 2013 , pp. 217 - 267
Copyright
Copyright © American Society of International Law 2013

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References

* This text was reproduced and reformatted from the text available at the European Court of Human Rights Web site (visited March 4, 2013) http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-114082.

1 The MRT emerged in the political convulsions triggered by the dissolution of the Soviet Union and consolidated its status in the course of a brief armed conflict. Most of Moldova’s Russian-speaking minority lives in the Transdniestrian region, which is also home to Moldovan and Ukrainian speaking populations as well as smaller minority groups.

2 Catan and others v. Moldova and Russia, App. Nos. 43370/04, 8252/05 & 18454/06, Eur. Ct. H.R. paras. 43-63 (2012), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-114082 [hereinafter Catan].

3 Id. paras. 141-144. Although a number of judges dissented on this point, the Court considered it not necessary to rule on the alleged additional violations of Article 8 of the European Convention (the right to private and family life) and the nondiscrimination clause of Article 14, read in conjunction with Article 8 of the Convention and Article 2 of its First Protocol. See Id. paras. 151-160 and the Jointly Partly Dissenting Opinion of Judges Tulkens, Vajic, Berro-Lefèvre, Bianku, Poalelungi and Keller.

4 Id. para. 150.

5 Id. para. 147.

6 Appl. No. 48787/99 Eur. Ct. H.R. (2004), http://hudoc.echr.-coe.int/sites/eng/pages/search.aspx?i=001-61886 [hereinafter Ilascu]. In Ilascu, the Grand Chamber found that both Russia and Moldova had violated the Convention in relation to the detention, torture, inhuman and degrading treatment and criminal conviction of four Moldovian nationals by MRT de facto authorities. The same context also gave rise to a judgment of the Court’s Fourth Section. See Ivantoc and others v. Moldova and Russia, App. No. 23687/05, Eur. Ct. H.R. (2011), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-107480.

7 See Catan, supra note 1, paras. 135-144.

8 See id. para. 141.

9 See id. paras.102-123.

10 See id. paras. 145-149.

11 See in this regard Article 8 of the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, contained in Report of the Int’l Law Comm’n on the work of its fifty-third session, April 23–June 1, July 2–August 10, 2001, 43-59, U.N. Doc. A/56/10, GAOR, 56th Sess., Supp. No. 10 (2001).

12 The European Court has long held that the obligation to ‘‘secure’’ the Convention rights also places obligations on the State to protect individuals against conduct from other individuals or non-state actors. See e.g. Young, James & Webster v. U.K., 44 Eur. Ct. H.R. (ser. A) at 20 (1981); X and Y v. Neth., 91 Eur. Ct. H.R. (ser. A) at 11 (1985); Plattform ‘‘A¨ rzte für das Leben’’ v. Austria, 139 Eur. Ct. H.R. (ser. A) (1988). For a detailed discussion of the operation of the principles of attribution and due diligence in International Human Rights Law, see Jan Arno, Hessbruegge, Human Rights Violations arising from Conduct of Non-state actors , 11 Buffalo Hum. R. L. Rev. 21 (2005)Google Scholar.

13 Catan, supra note 1, paras. 109-110. These findings build on Ilascu, supra note 5, paras. 331-333, 351-352.

14 Id. paras. 146-148.

15 Id. para.106 [emphasis added]. The Court developed this doctrine when considering whether Turkey can be held responsible for violations committed in the ‘‘Turkish Republic of Northern Cyprus.’’ See Loizidou v. Turkey 310 Eur. Ct. H.R. (ser. A) (1995); Cyprus v. Turkey, App. No. 25781/94, Eur. Ct. H.R. (2001), http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=001-59454.

16 Catan, supra note 1, para. 106.

17 Ilascu, supra note 5, para. 392 [emphasis added].

18 Catan, supra note 1, para. 112.

19 Id. paras. 116-122.

20 For the ICJ standard, see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. and Herz. v. Serb. and Mont.), 2007 I.C.J. 43, ¶ 392 (Feb. 26); Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 62 (June 27).The ICJ’s position has been challenged. The Appeals Chamber of the International Criminal for the Former Yugoslavia has held that a more lenient standard of ‘‘overall control’’ was sufficient to attribute conduct of a de facto agent to a State. See Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment, ¶¶ 80- 162 (Int’l Crim. Trib. for the Former Yugoslavia July 15, 1999). A more lenient standard has also been called for so as to attribute conduct of terrorist groups to states. See e.g. Christian, J. Tams, The Use of Force against Terrorists , 20 Eur. J. Int’l L. 359, 384-386 (2009)Google Scholar.

21 Catan, supra note 1, para. 115.

22 Id. paras. 149-150.

23 Id. para. 150.

24 See Marko, Milanovic, Grand Chamber Judgment in Catan and Others , Blog of the Eur. J. of Int’l L. (Oct. 21, 2012)Google Scholar, http://www.ejiltalk.org/grand-chamber-judgment-in-catanand-others.

25 Id.

26 See, e.g., Report of the United Nations High Commissioner for Human Rights on Human rights violations emanating from Israeli military attacks and incursions in the Occupied Palestinian Territory, U.N. Doc. A/HRC/8/17 (2008), para. 9; Report of the High Commissioner under Human Rights Council resolution S-15/1, U.N. Doc. A/HRC/17/45 (2011), para. 20; Report of the SR on extrajudicial, summary or arbitrary executions, Philip Alston; the SR on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt; the Representative of the SG on human rights of internally displaced persons, Walter Ka¨lin; and the SR on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari - Mission to Lebanon and Israel, A/HRC/2/7 (2006), para. 19; Combined report of nine Special Procedures mandate holders on the human rights of the Palestinian people, U.N. Doc. A/HRC/10/22 (2009), para. 22; Report of the Independent Expert on the Human Rights Situation in the Democratic Republic of the Congo, U.N. Doc. A/57/437 (2002), para. 83. Cf. Security Council, Resolution 1417 (2002) on the situation in the Democratic Republic of the Congo, 14 June 2002, U.N. Doc. S/RES/1417 (2002), para. 4.

27 Senior Expert, Report on Human Rights in the Transnistrian Region of the Republic of Moldova 4 , (Feb. 14, 2013) (Thomas Hammarberg), available at http://www.un.md/key_doc_pub/Senior_Expert_Hammarberg_Report_TN_Human_Rights.pdf.

28 Support for the position that human rights treaties could apply also to de facto authorities or armed groups with effective control over territory could be derived from the fact that, for purposes of state succession, human rights treaties are considered to be as ‘‘localized treaties.’’ Their protection evolves with the territory of the state party and continues to protect the people living therein, ‘‘notwithstanding change in Government of the State party, including dismemberment in more than one State or State succession.’’ See Hum. Rts. Comm., General Comment No. 26, para. 4, UN Doc. CCPR/C/21/Rev.1/Add.8 (1997), available at http://www.unhchr.ch/tbs/doc.nsf. In the same vein, it could be argued that a de facto authority assumes the effective control of a territory it also assumes the human rights treaty obligations resting on that territory. See Hessbruegge, supra note 7, at 40.

1 Note by the Registry: Mr Shevchuk was elected ‘‘President’’ of the ‘‘MRT’’ in December 2011.

1 European Committee on Crime Problems, Prevention of juvenile delinquency: the role of institutions of socialisation in a changing society , Strasbourg, Council of Europe, 1982 Google Scholar.

1 Referring to the Court’s conclusion in Ilaşcu regarding ‘‘the effective authority’’ and ‘‘the decisive influence’’ of Russia in the region, G. Cohen-Jonathan observes: ‘‘This reiterates the terms and the solution analysed in Cyprus v. Turkey: the important point under Article 1 is to determine which State exercises effective control (or ‘‘decisive’’ influence’’) where overall control is not exercised’’ – Cohen-Jonathan, G.. ‘‘Quelques observations sur les notions de ‘juridiction’ et d’injonction’’, Revue trimestrielle des droits de l’homme, no. 2005/64, p. 772 Google Scholar.

2 Decaux, E.. ‘‘De l’imprévisibilité de la jurisprudence européenne en matière de droit humanitaire’’, Revue trimestrielle des droits de l’homme, no. 2011/86, pp. 343-57 Google Scholar.