Постановление ЕСПЧ от 23.10.2018

<Дело Бобейко и другие (Bobeico and Others) против Молдовы и России> (жалоба № 30003/04) [англ.]

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

In the case of Bobeico and Others v. the Republic of Moldova and Russia,

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

Paul Lemmens, President,

Stéphanie Mourou — Vikström ,

Ivana Jeliæ , judges,

and Hasan Bakýrcý , Deputy Section Registrar,

Having deliberated in private on 2 October 2018,

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

PROCEDURE

1. The case originated in an application (no. 30003/04) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms («the Convention») by eleven Moldovan nationals, Mr Gheorghe Bobeico, Ms Ana Cazacioc, Ms Tatiana Coada, Mr Ilie Gherasim, Alexandru Golan, Mr Constantin Golan, Ms Anastasia Gotca, Mr Alexandru Iorgoglo, Mr Vladimir Iorgoglo, Vera Cebotari and Ms Maria Ungureanu («the applicants»), on 16 August 2004.

2. The applicants were represented by Mr V. Gribincea and Mr V. Turcan, lawyers practising in Chisinau. The Moldovan Government («the Government») were represented by their Agent, Mr M. Gurin, and the Russian Government were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. On 20 October 2015 the application was communicated to the Government.

4. The Russian Government objected to the examination of the application by a Committee. After having considered the objection, the Court rejects it.

THE FACTS

I. The circumstances of the case

5. The applicants were born in 1993, 1992, 1992, 1994, 1993, 1993, 1995, 1993, 1996, 1994 and 1951 respectively and live in Tighina (Bender).

6. The applicants are ten pupils of the Romanian (Moldovan) language boarding school in Tighina (Bender) for orphans and other children taken into public care, and their head teacher and also legal guardian, at the time of lodging the application. Not all the applicants are orphans and some of them had sporadic contacts with their parents. The children studied and lived at the school. During the summer holidays, they either went to summer camps or stayed with the families of the school staff. In 2004 the children spent their summer holidays together with the families of school staff. The applicants' school was registered with the Moldovan Ministry of Education and was therefore using the Latin script and a curriculum approved by the Ministry of Education of the Republic of Moldova.

7. According to Article 12 of the Constitution of the «Moldovan Republic of Trandniestria» («MRT»), the official languages within the «MRT» are «Moldavian», Russian and Ukrainian. Article 6 of the «MRT» Law on languages, which was adopted on 8 September 1992, states that, for all purposes, «Moldavian» must be written with the Cyrillic alphabet. The «law» provides further that use of the Latin alphabet may amount to an offence. In particular Article 200-3 (currently Article 5.28) of the «MRT» Code of Administrative Offences states that:

«Failure by persons holding public office and other persons in the executive and State administration, in public associations, as well as in other organisations, regardless of their legal status and form of ownership, and in other entities, situated on the territory of the MRT, to observe MRT's legislation on the functioning of languages on the territory of MRT... entails liability in the form of a fine which may amount to 50 (fifty) minimal salaries.»

8. On 18 August 1994 the «MRT» authorities forbade the use of the Latin script in schools. By a decision of 21 May 1999, the «MRT» ordered that all schools belonging to «foreign States» and functioning on «its» territory had to register with the «MRT» authorities, failing which they would not be recognised and would be deprived of their rights. The registration meant that the schools had to follow the «MRT» school curriculum, use the Cyrillic alphabet and learn history in the interpretation of the MRT authorities.

9. More details about the general background of the facts of the case are described in the Court's judgment in Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, §§ 13-42, ECHR 2012 (extracts)).

10. On 4 June 2004 the school administration was informed that the Bender city administration rescinded the utilities contracts because the school had failed to register with «MRT» authorities. However, the school was given a new time-limit, until 27 June 2004, to provide «MRT» authorities with documents in order to obtain such registration.

11. The school administration did not comply with the request and on 27 June 2004 the water supply to the school was disconnected.

12. On 30 June 2004 the Bender city administration requested the school to provide, by 1 July 2004, documents certifying its legal status, its entitlement to use the building and utilities as well as its bank account.

13. On 5 July 2004 the school was disconnected from the electricity supply.

14. On 15 July 2004 the Bender city administration issued a decision formally closing the school, because it operated without registration and license.

15. In the evening of 26 July 2004, unidentified persons and around thirty «MRT» militia officers, acting on behalf of the Bender city administration, sealed the school buildings and restricted access to the school area. Russian peacekeeping forces were present but did not intervene. The following day, the children and teachers forcefully re-entered the school dormitory. They were still occupying it when the application was submitted.

16. On 27 July 2004 the school administration sent a fax to the President of the Russian Federation complaining about the acts of the «MRT» authorities which affected 300 children, and about the inaction of Russian peacekeepers on 26 July 2004.

17. On 4 August 2004 the school was given a new time-limit, until 15 August 2004, to register with the «MRT» authorities, otherwise the children risked being transferred by force to a Transdniestrian boarding school for children with disabilities. On 11 August 2004 the «MRT» authorities suggested to the school administration that children would have been safer if they were transferred to kindergarten no. 10 in Bender where appropriate living conditions would be available.

18. The school was disconnected from all utilities and its administration was denied access to the school kitchen or storehouses. From 27 July to 10 August 2004 the Moldovan authorities provided the children with food and water, which was brought to the entrance of the city of Bender, the OSCE mission securing its transportation from there to the school. From 11 August 2004 OSCE employees were not allowed to deliver food and water more than once per day.

19. On 21 August 2004 the school administration asked the Russian Embassy in Chiºinãu to intervene in order to remedy the situation of the children deprived of water, electricity and food.

II. Relevant domestic law and practice of the Republic of Moldova and other relevant materials

20. 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 Catan and Others v. the Republic of Moldova and Russia, cited above, §§ 64-81.

THE LAW

21. The applicants complained about the forcible closure of their school by the «MRT» authorities and measures taken by those authorities to harass and intimidate them because of their choice to pursue their education at Romanian/Moldovan-language schools.

I. Jurisdiction

22. 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

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

24. The Moldovan Government submitted that they had positive obligations to secure the applicants' rights.

25. 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. As they did in Mozer v. the Republic of Moldova and Russia ([GC], no. 11138/10, §§ 92-94, 23 February 2016), the Russian Government expressed the view that the approach to the issue of jurisdiction taken by the Court in the cases of Ilaºcu and Others v. Moldova and Russia ([GC], no. 48787/99, ECHR 2004-VII), Ivanþoc and Others v. Moldova and Russia (no. 23687/05, 15 November 2011), and Catan and Others (cited above) was wrong and at variance with public international law.

B. The Court's assessment

26. 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.

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

28. In so far as the Republic of Moldova is concerned, the Court notes that in Ilaºcu , 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 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 Ilaºcu 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 Ilaºcu and Others, cited above, §§ 322 and 330-31; Catan and Others, cited above, §§ 109-10; and Mozer, cited above, § 99).

29. 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 Ilaºcu and Others, cited above, § 335).

30. In so far as the Russian Federation is concerned, the Court notes that in Ilaºcu 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 Ilaºcu and Others, cited above, § 382). The Court also found in subsequent cases concerning the Transdniestrian region that up until July 2010, 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 Ivanþoc 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).

31. The Court sees no grounds on which to distinguish the present case from Ilaºcu and Others, Ivanþoc and Others, Catan and Others, and Mozer (all cited above).

32. It follows that the applicants in the present case fell within the jurisdiction of the Russian Federation under Article 1 of the Convention. Consequently, the Court dismisses the Russian Government's objections ratione personae and ratione loci.

33. 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 2 of Protocol No. 1 to the Convention

34. Article 2 of Protocol No. 1 to the Convention provides:

«No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.»

A. Admissibility

35. The Russian Government submitted that the application should be rejected for failure to exhaust domestic remedies within the Russian Federation, namely to apply for redress to the Russian courts, and within the «MRT», that is to apply to the local courts.

36. The applicants disagreed and argued that the Russian Government had not proved the existence of any effective remedy.

37. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires applicants firstly to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time — that is to say, that the remedy was accessible, capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement (see, inter alia, Maktouf and Damjanoviæ v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 58, ECHR 2013 (extracts); Vuèkoviæ and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014; and Gherghina v. Romania [GC] (dec.), no. 42219/07, §§ 83-89, 9 July 2015).

38. Turning to the facts of the present case in so far as the remedies within the Russian Federation are concerned, the Court notes that not only have the Russian Government failed to show that a remedy was available to the applicants within the Russian Federation but that they also strongly emphasised their position according to which the Russian Federation has no jurisdiction in cases concerning Transdniestria. It follows that this limb of the Russian Government's objection of non-exhaustion of domestic remedies must be dismissed (see Vardanean v. the Republic of Moldova and Russia, no. 22200/10, § 31, 30 May 2017).

39. In so far as the remedies within the «MRT» are concerned, the Court recalls that in Mozer it held that the «judicial system» of the «MRT» was not a system reflecting a judicial tradition compatible with the Convention (see Mozer, cited above, §§ 148-49). Its findings made in Mozer are valid with respect to the period of time covered by the present case. Therefore, the Court considers that any remedies which may have been available to the applicants before the «MRT» courts could not be considered effective for the purposes of Article 35 § 1 of the Convention. It follows that this limb of the Russian Government's objection of non-exhaustion of domestic remedies must also be dismissed.

40. The Court finally notes that the last applicant is the head teacher of the other applicants who also had the status of their legal guardian. Since it was not argued by the applicants and it does not appear from the materials of the case that she had a status similar to that enjoyed by parents, and since it appears that not all applicants are orphans, the Court considers that her complaint is incompatible ratione personae with the provisions of the Convention and declares it inadmissible under Article 35 § 3 (a) of the Convention.

41. The Court considers that the complaint in respect of the ten pupil applicants 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 grounds. The Court therefore declares it admissible.

B. Merits

42. The applicants submitted that their right to education had been breached by the actions of the «MRT» authorities. They were subjected to a systematic campaign of harassment and intimidation by the authorities and sometimes verbally abused. Books and materials in Latin script had been seized. Since the applicants were very young at the time of the events and without parental support, they were particularly vulnerable. The applicants submitted that the case was not about language preference but about preference in school curricula and its impact on future social integraion. The Transdniestrian registration of the school would implicitly involve the implementation of the Transdniestrian curricula, using teaching materials produced in Soviet times and make it difficult for the applicants to integrate the Moldovan society.

43. The Moldova Government submitted that the treatment to which the applicants had been subjected had amounted to a breach of their rights guarantedd by Article 2 of Protocol No. 1. Nevertheless, the Moldovan Government submitted that they had discharged their positive obligations in this case.

44. The Russian Government submitted that teaching in any language or using certain script, including Latin, and in accordance with a specific educational program is not guaranteed by the Convention. According to the Russian Government, the complaint is ill-founded because the applicant's religious and philosophical beliefs are not at stake. The case concerns only language (spelling) preferences of the parents, which are not covered by the guarantees of Article 2 of Protocol No. 1.

45. The general principles in respect of Article 2 of Protocol No. 1 to the Convention have been summarised in Catan (cited above, §§ 136-40).

46. The Court notes that there are virtually no differences between the present case and Catan (cited above) and that the events in both cases took place during the same period. In Catan the Court held that the forced closure of the schools, based on the «MRT» law on languages, and the subsequent measures of harassment constituted interferences with the applicant pupils' rights of access to educational institutions existing at a given time and to be educated in their national language, and also an interference with the applicant parents' rights to ensure their children's education and teaching in accordance with their philosophical convictions. In the present case, as in Catan, the applicants were placed in the invidious position of having to choose, on the one hand, between going to schools where they would face the disadvantage of pursuing their entire secondary education in a combination of language and alphabet which they considered artificial and which was unrecognised anywhere else in the world, using teaching materials produced in Soviet times or, alternatively, being subjected to harassment and intimidation (see Catan, cited above, § 143).

47. The Court held next in Catan that there was no evidence to suggest that the measures taken by the «MRT» authorities in respect of the Romanian/Moldovan language schools pursued a legitimate aim. The «MRT»'s language policy, as applied to the schools in question, was intended to enforce the russification of the language and culture of the Moldovan community living in Transdniestria, in accordance with the «MRT»'s overall political objectives of uniting with Russia and separating from Moldova (see Catan, cited above, § 144).

48. The Court sees no reason to reach a different conclusion in the present case. Therefore, it considers that there was no legitimate aim for the interference with the applicants' right to education and thus that there has been a breach of Article 2 of Protocol No. 1 to the Convention in the present case.

49. The Court must next determine whether the Republic of Moldova fulfilled its positive obligation to take appropriate and sufficient measures to secure the applicants' rights under Article 2 of Protocol No. 1 (see paragraph 28 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).

50. As regards the first aspect of Moldova's obligation, 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 (Mozer, cited above, § 152). Since the events complained of in the present case took place before the latter date, the Court sees no reason to reach a different conclusion (ibid.).

51. Turning to the second part of the positive obligations, namely to ensure respect for the applicants' rights, the Court notes the efforts made by the Moldovan authorities in securing the applicants' rights. In particular, they provided the pupil applicants with food and water during the period of crisis (see paragraph 17 above).

52. 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 applicants.

53. There has therefore been no violation of Article 2 of Protocol No. 1 to the Convention by the Republic of Moldova.

54. 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 paragraph 30-31 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», without which the latter could not otherwise survive, Russia's responsibility under the Convention is engaged as regards the violation of the applicants' rights (ibid.).

55. In conclusion, and having found that the applicants' right to education guaranteed by Article 2 of Protocol No. 1 to the Convention has been breached (see paragraph 47 above), the Court holds that there has been a violation of that provision by the Russian Federation.

III. Alleged violation of Article 8 of the Convention and Article 13 taken in conjuntion with Article 2 of Protocol No. 1 or Article 8 of the Convention

56. The pupil applicants complained that the measures taken against them constituted a violation of the right to respect for their private life and home, within the meaning of Article 8 of the Convention and that they did not have at their disposal effective remedies in respect of their complaints under Article 8 and under Article 2 of Protocol No. 1 to the Convention.

57. Having regard to the facts of the case, the submissions of the parties and its findings under Article 2 or Protocol No. 1 to the Convention, the Court considers that there is no need to give a separate ruling on these remaining complaints (see, among other authorities, Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007, and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

58. In their initial application before the Court, the applicants alleged a further violation of Article 13 of the Convention. However, in their observations on the admissibility and merits, they made it clear that they did not intend to pursue that part of their application. Consequently, the Court will refrain from examining it.

IV. Application of Article 41 of the Convention

59. 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

60. The pupil applicants claimed EUR 8,000 each in respect of non-pecuniary damage.

61. The Governments contended that the claims were excessive.

62. The Court notes that it has not found any violation of the Convention by the Republic of Moldova in the present case. Accordingly, no award of compensation is to be made as regards that respondent State.

63. Having concluded that the Russian Federation is responsible for the violation found, the Court considers that an award for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards EUR 6,000 to each pupil applicant.

B. Costs and expenses

64. The applicants also claimed compensation for costs and expenses. They indicated that the lawyers spent 107 hours on the case and that the average hourly fee in Moldova was between EUR 50 and 150. They invited the Court to award them an amount which it considered reasonable.

65. The respondent Governments considered that the sums claimed were excessive.

66. For the same reasons as indicated above, the Court makes no award covering costs and expenses with regard to Moldova, and limits its consideration of the relevant claims to the Russian Federation (see paragraphs 62-63 above).

67. The Court reiterates that in order for costs and expenses to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Mozer, cited above, § 240, and Sargsyan v. Azerbaijan (just satisfaction) [GC], no. 40167/06, § 61, 12 December 2017). Having regard to all the relevant factors and to Rule 60 § 2 of the Rules of Court, the Court awards a total of EUR 4,000 to the pupil applicants for costs and expenses, to be paid by the Russian Federation.

FOR THESE REASONS, THE COURT, UNANIMOUSLY

1. Declares, the application lodged by the first ten applicants admissible in respect of the Republic of Moldova;

2. Declares, the application lodged by the first ten applicants admissible in respect of the Russian Federation;

3. Declares, the part of the application lodged by Ms Maria Ungureanu inadmissible;

4. Holds, that there has been no violation of Article 2 of Protocol No. 1 to the Convention in respect of the Republic of Moldova;

5. Holds, that there has been a violation of Article 2 of Protocol No. 1 to the Convention in respect of the Russian Federation;

5. Holds, that it is not necessary to examine separately the applicants' complaints under Article 8 and 13 of the Convention;

6. Holds,

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

(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to each applicant;

(ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to all the applicants jointly;

(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 23 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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