CEDH · CASELAW;CLIN;ENG — 19 octobre 2012

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law 156 October 2012 Catan and Others v. the Republic of Moldova and Russia [GC] - 43370/04, 8252/05 and 18454/06 Judgment 19.10.2012 [GC] Article 1 Jurisdiction of states Jurisdiction of Moldovan and Russian Governments in relation to educational policy within separatist region of the Republic of Moldova Article 2 of Protocol No. 1 Respect for parents' philosophical convictions Right to education Closure of schools teaching in Latin script and harassment of pupils wishing to be educated in their national language: violation by Russia Facts – The applicants were children and parents from the Moldovan community in Transdniestria, a region in the eastern part of the territory of the Republic of Moldova over which the Moldovan Government do not exercise control. This area is governed by the “Moldavian Republic of Transdniestria” (the “MRT”), a separatist movement. The “MRT” has not been recognised by the international community. The applicants complained about the effects on their and their children’s education and family lives brought about by the language policy of the separatist authorities. The core of their complaints relate to measures taken by the “MRT” authorities in 2002 and 2004 which forbade the use of the Latin alphabet in schools and required all schools to register and start using an “MRT”-approved curriculum and the Cyrillic script. These actions involved the forcible eviction of pupils and teachers from their schools, and the subsequent closure and relocation of the schools to distant and poorly equipped premises. The applicants further contended that they were subjected to a systematic campaign of harassment and intimidation by representatives of the “MRT” regime and private individuals. They claimed that children were verbally abused on their way to school and stopped and searched by the “MRT” police and border guards, who confiscated Latin script books when they found them and that in addition the two schools located in “MRT”-controlled territory were the target of repeated acts of vandalism. The applicants alleged that the events in question fell within the jurisdiction of both of the respondent States. Law – Article 1: A State’s jurisdictional competence under Article   1 is primarily territorial. However, in exceptional cases, acts of the Contracting States performed or producing effects outside their territories can constitute an exercise of jurisdiction. A State can exercise jurisdiction extra-territorially through the assertion of authority and control by its agents over an individual or individuals; or when as a consequence of lawful or unlawful military action it exercises effective control of an area outside its national territory. (a)     Jurisdiction of the Republic of Moldova – All three schools were at all times situated within Moldovan territory. Though it was not disputed that Moldova had no authority over the area in question, and did not control the acts of the “MRT”, in the Ilaşcu judgment the Court held that individuals detained in Transdniestria fell within Moldova’s jurisdiction because Moldova was the territorial State, even though it did not have effective control over the Transdniestrian region. The Court held in that case that Moldova therefore had an obligation under Article   1 of the Convention to take the measures within its power to secure the Convention rights and freedoms. The Court saw no ground here on which to distinguish the present case. The fact that the region was recognised under public international law as part of Moldova’s territory gave rise to an obligation to use all legal and diplomatic means available to it to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention to those living there. Conclusion : within the jurisdiction (unanimously). (b)     Jurisdiction of the Russian Federation – As the key events in this case fell within the period of time considered by the Court in the Ilaşcu judgment, and given that in that case the Court concluded that the applicants came within the “jurisdiction” of the Russian Federation for the purposes of Article   1 of the Convention, in the present case the burden lay on the Russian Government to establish that Russia did not exercise jurisdiction in relation to the events complained of. The Court accepted that there was no evidence of any direct involvement of Russian agents in the action taken against the applicants’ schools, and went on to consider whether Russia had effective control over the “MRT”. Having regard to the Russian military presence in the area, the Court accepted that the number of Russian forces stationed there had decreased significantly and was small in relation to the size of the territory. Nevertheless, as the Court had found in Ilaşcu , in view of the size of the Russian army’s arsenal in the region its influence persisted. The historical background also had a significant bearing – the separatists had managed to secure power in 1992 only with the help of the Russian military. Further, the Court had found in Ilaşcu that the “MRT” had only survived during the period in question by virtue of Russia’s economic support, and it was noted that the Russian Government continued to spend large sums every year providing humanitarian aid to the population of Transdniestria. No evidence to discredit the findings in Ilaşcu had been adduced, and the ongoing Russian military presence sent a strong signal of continued support for the “MRT” regime. Therefore, the Russian Government had not persuaded the Court that the conclusions it reached in Ilaşcu were inaccurate, and the applicants in the present case fell within Russia’s jurisdiction. Conclusion : within the jurisdiction (sixteen votes to one). Article 2 of Protocol No.   1: It was difficult to establish in detail the facts relating to the applicants’ experiences following the reopening of the schools, but the Court noted that the use of the Latin alphabet constituted an offence in the “MRT”; that it was clear that the schools had had to move to new buildings which were often at significant distances; and that the number of pupils attending the schools affected had significantly decreased. These uncontested facts corroborated the general thrust of the applicant’s allegations. The measures taken and the harassment that the applicants suffered constituted interferences with the applicant pupils’ rights of access to educational institutions and to be educated in their national language. In addition, the Court considered that the measures amounted to an interference with the applicant parents’ rights to ensure their children’s education and teaching in accordance with their philosophical convictions, and the Court noted that Article   2 of Protocol No.   1 must be read in the light of Article   8 of the Convention. In considering whether the interference with the applicants’ rights could be considered to be justified, it was observed that there was no evidence to suggest that the measures taken by the “MRT” authorities in respect of these schools pursued a legitimate aim. Indeed, it appeared that the “MRT”‘s language policy, as applied to these schools, was intended to enforce the Russification of the language and culture of the Moldovan community. The Court then considered the responsibility of the respondent States as regards this interference. (a)     Obligations of the Republic of Moldova – In contrast to the position in Ilaşcu , in which the Court found that Moldova had not taken all available measures to end the Convention violation in that case, in the instant case it considered that the Moldovan Government had made considerable efforts to support the applicants. In particular, following the requisitioning of the schools’ former buildings by the “MRT”, they had paid for the rent and refurbishment of new premises as well as equipment, staff salaries and transport costs. They had thus fulfilled their positive obligations in respect of the applicants. Conclusion : no violation (unanimously). (b)     Obligations of the Russian Federation – There was no evidence of any direct participation by Russian agents in the measures taken against the applicants. Nor was there any evidence of Russian involvement in or approbation for the “MRT”‘s language policy in general. However, Russia had exercised effective control over the “MRT” during the period in question. It was not necessary to determine whether or not Russia had exercised detailed control over the policies and actions of the subordinate local administration. By virtue of its continued military, economic and political support for the “MRT”, which could not otherwise survive, it had responsibility under the Convention for the violation of the applicants’ rights to education. Conclusion : violation (sixteen votes to one). Article 41: EUR 6,000 in respect of non-pecuniary damage to each applicant named in the Schedule to the case. (See also Ilaşcu and Others v. Moldova and Russia [GC], no.   48787/99, 8   July 2004, Information Note no.   66; Al-Skeini and Others v.   the United Kingdom [GC], no.   55721/07, 7   July 2011, Information Note no.   143; Ivanţoc and Others v. Moldova and Russia , no.   23687/05, 15   November 2011, Information Note no.   146)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes