MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-29

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-29 Catan and Others group v. Russian Federation (Application No. 43370/04) Supervision of the execution of the European Court’s judgments Reference documents CM/ResDH(2014)184, CM/ResDH(2015)46, CM/ResDH(2015)157, CM/ResDH(2020)183, CM/Del/Dec(2021)1398/H46-25

 

Application	Case	Judgment of	Final on	Indicator for the classification
43370/04+	CATAN AND OTHERS[1]	19/10/2012	Grand Chamber	Complex problem
30003/04	BOBEICO AND OTHERS1	23/10/2018	23/10/2018
40942/14	IOVCEV AND OTHERS1	17/09/2019	17/09/2019

Case description

These cases concern violations of the rights of children, parents and staff members of Latin-script schools located in the Transnistrian region of the Republic of Moldova during the years 2002-2004 (Catan and Others, Bobeico and Others) and 2013-2014 (Iovcev and Others).

The European Court observed that there was no evidence of any direct participation by Russian agents in the measures taken against the applicants, nor of Russian involvement in or approbation for the language policy of the “Moldavian Republic of Transdniestria” (“MRT”) in general. Nonetheless, it held that the Russian Federation exercised effective control over the “MRT" during the periods in question and that by virtue of its continued military, economic and political support for the “MRT”, which could not otherwise survive, the Russian Federation incurred responsibility under the Convention for the violation of the applicants’ rights.

Pursuant to the “MRT” law on languages, the applicant pupils suffered from the forced closure of these schools and various measures of harassment, in breach of their right of access to educational institutions existing at a given time and to be educated in their national language, which was also their mother tongue, and in breach of their parents’ right to ensure their children’s education in accordance with their philosophical convictions (violation of Article 2 of Protocol No. 1 by the Russian Federation). In Iovcev and Others the Court held also that measures of harassment by the “MRT” authorities violated the right to respect for the private lives of ten members of school staff (violation of Article 8 by the Russian Federation) and that arrest and searches of three staff members by the “MRT” authorities was unlawful (violations of Article 5 § 1 and Article 8 by the Russian Federation).

Status of execution

To date, the Russian authorities have not paid the just satisfaction awarded by the Court in any of the cases nor provided an action plan setting out any planned concrete measures. They have not provided any new information for the Committee’s examination at this meeting.

For previous examinations, they have submitted a number of communications in which they have underlined that the European Court’s attribution to Russia of responsibility for violations which took place on the territory of another State created serious problems of implementation. According to the authorities, they have applied significant efforts to find acceptable solutions to these problems, by organising round tables, consultations and conferences to discuss issues related to the European Court’s case law on the extraterritorial responsibility of states. In addition, reference was made to the work being carried out in the framework of the group DH-SYSC-II under the auspices of the Steering Committee for Human Rights (CDDH). The authorities also expressed the view that a further detailed consideration by the Court of the current situation in the Transnistrian region was necessary to resolve the relevant problems and informed the Committee that to this end they have submitted information and analysis to the Court in the framework of new communicated cases. For further details, see the last information provided by the Russian authorities on 14 April 2021 (DH-DD(2021)398).

The Committee has been regularly examining the case of Catan and others at DH meetings since December 2013 and has adopted four interim resolutions, deeply deploring the failure of the Russian authorities to provide any information on concrete measures taken or envisaged to unconditionally comply with the judgment (CM/ResDH(2014)184, CM/ResDH(2015)46, CM/ResDH(2015)157 and CM/ResDH(2020)183).

At its last examination in June 2021 (1406^th meeting) (DH), the Committee inter alia invited the Secretary General to write a letter to the Minister of Foreign Affairs of the Russian Federation, to underline both the fundamental importance of the right to education and the unconditional obligation to abide by the judgments of the Court, including by paying the just satisfaction awarded to the applicants in the judgments concerning these cases. The Committee also decided that, should no tangible progress as regards execution measures have been achieved by the time of the Committee’s next examination (at the present meeting), it would consider all appropriate means at their disposal to secure the execution of the judgments in this group.

On 5 July 2021 the Secretary General wrote to the Minister of Foreign Affairs of the Russian Federation. On 30 September 2021, the Russian authorities responded through a letter from the Ambassador of the Russian Federation to the Council of Europe, recalling the position of his authorities that the Court’s application of the doctrine of “effective control” in the Catan judgment, entailing the international responsibility of Russia for acts that were not committed or controlled by it, was legally flawed, and presupposed that in the execution of the relevant judgments, Russia must act on the territory of another sovereign State, which was contrary to the principles of international law. However, the Ambassador also confirmed his authorities’ openness to explore with the Secretariat possible avenues for the execution of the judgments, in particular within the framework of mutual reflection about the concept of “extraterritorial jurisdiction”. Good examples of such reflection were the two conferences organised by the Council of Europe in Moscow in October 2017 and in Chişinău in February 2018.

In a Rule 9.2 communication of 27 April 2021 (DH-DD(2021)482), the NGO Promo-LEX underlined the lack of progress in the execution of the Catan judgment. In terms of individual measures, they pointed to the failure of the Russian authorities to pay the just satisfaction awarded by the Court, and informed the Committee that some of the applicants have died, others have lost contact with their representatives, meaning that the delay in the payment of compensation has deprived a significant number of applicants of the hope to have their claims satisfied. They further submitted that payment of the just satisfaction would be the simplest execution measure, not requiring any analytical and research efforts.

As regards the general measures, Promo-LEX submitted that both States found by the Court to have jurisdiction over the Transnistrian region, and in particular, the Russian Federation, as the State found to be responsible for the violations, have the primordial obligation to enforce these judgments. They identified three sets of general measures which are needed: (1) the removal of any provisions from the legislation of the de-facto government that can be regarded as a threat to the use of Latin script in the schools, since they generate discriminatory attitudes and intimidation of the pupils; (2) stopping any further harassment of teachers and pupils by the Transnistrian “militia and law enforcement bodies”, through the exercise by Russia of its “decisive influence” over the de facto administration; (3) returning their former premises to the Latin-script schools.

Finally, they invited the Committee to use additional measures at its disposal, such as to schedule examination of this group at each of its regular and DH meetings and to invite the Chair to write a letter to Ministry of Justice of Russian Federation.

In a further communication of 28 July 2021 (DH-DD(2021)750), PROMO-Lex provided a link to a YouTube video where teachers and pupils at the schools describe the problems they are facing in terms of harassment and inadequate premises.

Analysis by the Secretariat

The Russian Federation is under a binding obligation under international law to abide by the Court’s judgments in these cases and to take measures to implement them. The scope of the legal obligation under Article 46 flowing from a final judgment, and thus the type of measures required, is defined by the reasons for which the Court found the violation. Under the Convention system, it is of course for the respondent State, under the supervision of the Committee of Ministers, to choose the means by which to comply with the judgments. However, as deplored by the Committee on numerous occasions, in the nine years since the Catan and Others judgment was delivered by the Grand Chamber, the Russian authorities have failed to provide any information on the concrete measures it has taken or foresees to take in this respect.

It is therefore becoming imperative to seek avenues to overcome the present stalemate.

In these circumstances, to improve its understanding of what is now needed to redress the situation of pupils affected by the circumstances of the violation and thus better focus its supervision work, the Committee could consider instructing the Secretariat to carry out an initial analysis of the scope of the legal obligations flowing from the Court’s reasoning in these cases, with a view to identifying the type of individual and general measures which would be appropriate. In addition, the Secretariat could be instructed to provide the Committee with an assessment, from publicly available information and drawing on the Council of Europe’s expertise, of the current circumstances of the Latin-script schools in the Transnistrian region.

This analysis and assessment could then form the basis for a detailed consideration and decision by the Committee at its next examination, setting out the measures expected from the Russian Federation to implement the judgments. Such a decision could, in turn, be the subject of further high-level consultations with the Russian authorities. It is noteworthy in this respect that, in the recent response to the letter from the Secretary General, the Russian authorities confirmed their openness to explore with the Secretariat possible avenues for the execution of the judgments.

Finally, it should be recalled that the payment of the just satisfaction awarded by the Court, together with the default interest which has accrued, remains an unconditional obligation. The Committee could once again deeply deplore the Russian authorities’ failure to take this straightforward step.

Financing assured: YES