Tatiana-Lăcrămioara ȘOLDĂNESCU*
Faculty of Law, University of Bucharest
Abstract: This research examines the extraterritorial application of the European Convention on Human Rights (ECHR) and the UN Convention Against Torture (UNCAT) in Transnistria, a region where questions of jurisdiction remain highly contested. Although officially part of the Republic of Moldova, the State’s obligation to prevent, investigate, and punish acts of torture is constrained by its loss of de facto control over this territory. The analysis compares the approaches of the European Court of Human Rights (ECtHR) and the Committee against Torture in interpreting jurisdiction beyond national borders. The findings show that both mechanisms contribute positively to combating impunity and extending human rights protection to population in this territory. While the ECtHR has adopted a pragmatic approach assigning shared obligations to the Republic of Moldova and Russia, the Committee against Torture remains more cautious. The study concludes that international human rights law is evolving toward recognizing accountability based on control and influence rather than strict territoriality, urging both bodies to strengthen their engagement in these grey zones of international law.
Key-words: extraterritorial jurisdiction, Transnistria, human rights, torture, effective control.
Introduction
Transnistria declared independence in August 1991 and has since operated as a self-proclaimed state. However, to date, no member of the United Nations recognizes its sovereignty. Internationally, Transnistria is regarded as a de jure part of the Republic of Moldova. However, the Moldovan government exercises no effective control over the territory, as Russian troops are located in the region without Moldova’s consent.[1]
In this context, the application of legal instruments tends to be sporadic and inconsistent. While de facto authorities perform many state-like functions, their actions remain largely beyond effective oversight or accountability. As a result, these quasi-state entities frequently become breeding grounds for human rights violations and widespread impunity.
Furthermore, both Republic of Moldova and the Russian Federation, the two states involved in the conflict, demonstrate a pronounced reluctance to acknowledge or assume responsibility for actions occurring within their jurisdiction. Consequently, issues of jurisdiction are frequently invoked as a means to contest or evade the attribution of responsibility.
Within this framework, the present paper seeks to examine the legal implications stemming from the refusal of the states concerned to assume jurisdiction over the territory. To address these issues, the first part of the study will analyze how the European Court of Human Rights has established the jurisdiction in its case-law. The second part will then consider the concept of jurisdiction as articulated under the United Nations Convention against Torture, with a view to assessing the extent to which both regimes converge or diverge in their respective approaches to extraterritorial responsibility.
1. The case-law of the European Court of Human Rights concerning jurisdiction over Transnistria
Traditionally, the ECtHR has interpreted the notion of “jurisdiction” under the ECHR through the primarily territorial understanding of jurisdiction in international law[2]. Consequently, instances of extraterritorial jurisdiction have been viewed as exceptional, demanding specific justification, such as effective control over territory or individuals, rather than being regarded as a routine extension of a State’s obligations when acting beyond its borders.[3] For example, in Banković, the Court declared itself satisfied that “from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial”.[4]
While the case-law of the ECtHR concerning jurisdiction over Transnistria is not new, as the Court’s first judgment on the matter dates from 2004, some developments can be seen in the Court’s approach to this subject.
The first case in which the Court delivered a judgment on this subject was the case of Ilașcu and Others v. Moldova and Russia[5]. The Court addressed the issue of jurisdiction concerning Moldova that had lost effective control over Transnistria within its internationally recognized territory, as well as the exercise of extraterritorial jurisdiction by Russia over the same territory. The applicants alleged that they have been convicted by an illegally established tribunal, in violation of Article 6 of the Convention and that their conditions of detention breached Article 3 and 8 of the Convention.
The Court reaffirmed what it has already recognized in the Loizidou case[6], that “in exceptional circumstances, the acts of Contracting States performed outside their territory, or which produce effects there, may amount to exercise by them of their jurisdiction within the meaning of Article 1 of the Convention.”[7] The Court held that, consistent with relevant principles of international law, a State’s responsibility may be engaged where, as a result of military action, it exercises overall effective control over an area situated beyond its national territory.[8]
Turning to the jurisdiction of each of the two respondent States, it is instructive first to consider the arguments put forward by both States regarding their alleged lack of jurisdiction over Transnistria.
The Moldovan Government contended that it did not have jurisdiction over Transnistria, as it lacked de facto control over the region. De facto regimes, while situated within a State’s internationally recognized borders, operate beyond the effective authority of that State, which is therefore unable to guarantee the full enjoyment of rights to the population living there. On this basis, Moldova argued that the application was incompatible ratione personae, since the alleged violations could not be attributed to it, given that it was not responsible for the actions of the Transnistrian authorities. Nevertheless, Moldova maintained that it had fulfilled its positive obligations by taking measures aimed at restoring effective control over the territory and, in particular, at safeguarding the rights of the applicants.
Similarly, the Russian Federation contested its jurisdiction over Transnistria, arguing that since the territory is an integral part of Moldova, only the Moldovan Government could be held responsible for the alleged violations.
The Court held that both States may be found to exercise jurisdiction over Transnistria.[9] It held that Moldova exercised jurisdiction on the basis of its sovereign title over the region – its jurisdiction being limited to certain positive obligations, which encompassed two distinct dimensions: (i) the adoption of measures aimed at re-establishing its authority over Transnistrian territory, as an expression of its jurisdiction; and (ii) the implementation of measures to ensure respect for the individual applicants’ rights.[10] Given that, from the outset of the hostilities in and around Transnistria in 1991–1992, Moldova had undertaken all measures reasonably within its power to restore effective control over the breakaway region, the Court found the first aspect of its positive obligations to have been satisfied.[11] With regard to the second aspect, however, the Court concluded that Moldova had failed to comply with its obligation to secure respect for the applicants’ rights, as it did not take all measures arguably available to it during negotiations with the Transnistrian and Russian authorities to bring an end to the violations suffered by the applicants. Russia, on the other hand, exercised jurisdiction on the basis of its “effective authority or, at the very least [its] decisive influence” over the territory.[12]
In his partly dissenting opinion, Judge Bratza, joined by Judges Rozakis, Hedigan, Thomassen and Panțîru, while in agreement with the conclusion of the majority of the Court that the responsibility of Russia was engaged, he was unable to share the view of the majority that the responsibility of Moldova was similarly engaged. In his words, he found it difficult to accept that the Republic of Moldova was responsible “merely because of a failure on its part to establish that it had made sufficient efforts on the legal or diplomatic plane to guarantee those rights”[13].
Judge Kovler went even further in his dissenting opinion and proposed that the application be declared inadmissible ratione loci and ratione personae with respect to Russia, while recognizing jurisdiction solely in relation to Moldova. He further suggested that, given Moldova’s lack of de facto control over Transnistria, the Court could have characterized the situation as a “legal vacuum” or “lawless area”, thereby rendering the provisions of the Convention inapplicable.[14] Although such an approach might have simplified the Court’s task in adjudicating cases arising from contested territories, it would have been ineffective in securing the rights of detainees and residents within these regions. Excluding these territories from the protection of the Convention would mean accepting the dire conditions prevailing in detention facilities administered by de facto authorities, contrary to the principle of the universality and indivisibility of human rights.[15]
Still, the majority’s approach has been the subject of considerable criticism in academic literature. The first aspect of Moldova’s positive obligations has been viewed as reflecting a predominantly political, rather than judicial, character, while the second aspect has been criticized on the grounds that, for the purpose of establishing jurisdiction, the decisive criterion should be a State’s actual capacity to act, rather than its sovereign title over the territory in question. [16]
In subsequent cases, Moldova has not raised any objections of incompatibility ratione personae and ratione loci, thus accepting what the Court has previously ruled in Ilașcu and Others v. Moldova and Russia. Russia, however, continued to raise these objections.
In Mozer, which was decided by the Grand Chamber, the Court took into consideration, in addition to factual findings from previous cases such as Ilașcu or Catan[17], various developments in the relations between Russia and Transnistria contemporary to the facts of the case to support its finding “that Russia continues to exercise effective control and a decisive influence over the Moldavian Republic of Transdniestria (“MRT”) authorities.[18]
In Lypovchenko and Halabudenco v. the Republic of Moldova and Russia, the Court, sitting as a Chamber, maintained its approach that Russia exercised jurisdiction over the territory of Transnistria, noting the “ongoing military presence of the Russian Federation in Transnistria, contrary to the will of the Moldovan Government, the renewed calls for the withdrawal of its troops, and the economic and political support of the Russian Federation for the “MRT” regime – which was not disputed by the Russian Federation”.[19] This judgment is the Court’s most recent judgment concerning acts committed by the “MRT”.
Except the Ilașcu case, in the above-mentioned cases, the Court found that Moldova respected its positive obligations and therefore its conduct was not in breach of the Convention. In Ilașcu, however, Moldova was found to have failed to adequately address the applicants’ situation in the course of its negotiations with the Transnistrian and Russian authorities.
A different approach was taken by the Court in the Pocasovschi and Mihaila v. the Republic of Moldova and Russia case, in which the Court found that Moldova was responsible for the disconnection of utilities from a penitentiary in Transnistria.[20] The Court observed that, even though the Moldovan Government did not exercise control over the local authorities who had disconnected the utilities, the Moldovan authorities nonetheless retained full control over the prison and the individuals detained therein and could therefore have taken appropriate measures to remedy the violation. Consequently, Moldova was held responsible for its failure to act promptly to address the situation.
Thus, the Court has ruled that Russia’s influence over Transnistria is decisive. Consequently, Russia exercises jurisdiction over this territory. Turning to Moldova’s jurisdiction, the Court’s approach is to examine whether the Republic of Moldova was in a position to bring the violation to and end. Therefore, Moldova’s jurisdiction cannot be regarded as merely formal or altogether absent.
2. Extraterritorial Jurisdiction under the United Nations Convention against Torture
After examining the implications of extraterritorial jurisdiction under the ECHR, this analysis will turn to the concept of extraterritoriality within the framework of the United Nations Convention Against Torture (UNCAT)[21]. This comparison is particularly important, as international human rights mechanisms, while not formally bound by one another’s jurisprudence, frequently take into account the findings and interpretations developed by other bodies. In doing so, they may indirectly shape each other’s approaches to complex and contested issues, including the scope of states’ obligations beyond their territorial borders. This comparison is particularly relevant since the majority of cases before the ECtHR concerned allegations on the detention conditions in prisons in the territory of Transnistria.
Under Article 2 of the UNCAT, a State is obligated to take effective legislative, administrative, judicial, and other measures to prevent acts of torture “in any territory under its jurisdiction”. To monitor the implementation of the UNCAT by its States Parties, the Committee against Torture was established under Article 18 of the Convention. The Committee reviews the implementation of the Convention by each State party through reports submitted to it and during meetings with national delegations (Article 19); conduct confidential inquiries in cooperation with the State party when circumstances indicate the possibility of systematic torture being practiced (Article 20) and consider communications (or complaints) from States parties and from individuals, in States parties which have accepted the procedure (Articles 21 and 22).
Although the formulation from Article 2 (“in any territory under its jurisdiction”) appears to emphasize territorial jurisdiction rather than personal jurisdiction, the Committee against Torture in its General Comment No. 2 on the Implementation of Article 2 by States parties stated that, given the non-derogable nature of the prohibition of torture, the Convention applies to any territory or facility and protects any person, citizen or non-citizen alike, subject to the de jure or de facto control of a State party.[22]
The Republic of Moldova ratified the UNCAT on 31 May 1995 and entered into force on 28 December 1995 and the Optional Protocol of the UNCAT on 24 July 2006.[23] Since its ratification Moldova has been subjected to review four times, under the procedure provided in Article 19 of the Convention.
Article 19 of UNCAT provides that the States Parties shall submit to the Committee reports on the measures they have taken to give effect to their undertakings under this Convention, within one year after the entry into force of the Convention for the State Party concerned. Thereafter, the States Parties shall submit supplementary reports every four years on any new measures taken and such other reports as the Committee may request. Following their submission, the reports of the State party will be considered by the Committee against Torture as a priority at one of its following sessions, and a delegation from the State party will be invited to participate and respond to questions from the Committee.
The second report concerning the Republic of Moldova is relevant for the situation in Transnistria. The Moldovan Government stated that it lacked the capacity to ensure the application of either international or national law within the territory of Transnistria, emphasizing the central authorities’ inability to exercise full jurisdiction over the region. The Government further noted that efforts to resolve the conflict were being pursued through diplomatic means. It drew attention to the fact that the absence of effective jurisdiction over Transnistria had already been addressed by the ECtHR in Ilașcu and Others v. Moldova and Russia. The report also highlighted that the Transnistrian authorities had taken various measures to prevent the Moldovan central authorities from managing penitentiary institutions located within the region. According to the Government, this issue was “much more complicated at the institutional level,” as the Transnistrian penitentiary administration was reluctant to cooperate and consistently refused any form of coordination with the penitentiary system of the Republic of Moldova.[24]The Committee against Torture, while taking not of Moldova’s position, concluded that the “State party has an ongoing obligation to ensure that acts of torture and other forms of ill-treatment are prohibited in all parts of its territory”.[25] In other words, the lack of effective control over the territory of Transnistria is not a legitimate excuse to not ensure the UNCAT’s application on this territory.
For the third report, the Republic of Moldova was requested, among other things, to indicate the measures taken to ensure full respect for the UNCAT in the Transnistrian region. Notably, this request was left unanswered. The report merely referred to the Committee’s question without providing any substantive information or explanation for the omission. It is particularly striking that, while Moldova addressed the other inquiries on the Committee’s list in detail, it failed to supply any information regarding measures adopted to ensure compliance with the Convention in Transnistria.[26] In the Concluding Observations on the third periodic report, the Committee against Torture took note of the “State party’s lack of ability to exercise effective control in the territory of Transnistria, which impedes the application of the Convention in this region”.[27]
On the List of issues prior to submission of the fourth periodic report of the Republic of Moldova, there is no reference to the situation in Transnistria.[28] Similarly, the report submitted in 2022 contains no reference to the Moldova’s implementation of the UNCAT within the territory of Transnistria.[29]
Until the publication of the fourth report on this matter, we could have concluded that the Committee is not inclined to relieve Moldova of its obligations under the UNCAT regarding Transnistria, despite its lack of effective control over this territory. The Committee’s observations showed that it is unconvinced that Moldova was doing everything within its power to ensure the prohibition of torture in the region.
However, the fourth periodic report of the Republic of Moldova makes no reference to the situation in Transnistria, leaving many questions unresolved. It would have been valuable to see the Committee provide concrete recommendations or to address the possible activation of Russia’s positive obligations in this context. As the Committee’s concluding observations on this report have not yet been published, there remains a possibility that it will offer guidance on this matter. Nevertheless, such an outcome appears unlikely, given that neither the list of issues nor the State report itself contained any information concerning Transnistria.
With regard to the recommendations made by the Committee against Torture to Russia on the implementation of the UNCAT within the territory of Transnistria, in its Concluding observations from 2018, the Committee recommended “that the State party, through its participation in the “5+2 talks”, encourage the adoption of effective measures to promote the prevention and prohibition of torture and ill-treatment, taking into account the jurisdictional vacuum in the Transnistrian region.”[30] Despite this, the reports submitted by the Russian Federation make no reference to the situation in Transnistria as an issue of concern. Judging from this position, the prospect of Russia reporting on the region under the framework of the UNCAT appears illusory, as Russia consistently refuses to acknowledge that it exercises jurisdiction or effective control over the region and has repeatedly denied such control in proceedings before the ECtHR.
So far, no confidential inquiry was conducted by the Committee in the Republic of Moldova or Russia, under Article 20 of the UNCAT. This shows that there are no well-founded indications that torture is being systematically practiced in these States.
Conclusion
In carrying out this analysis, two international bodies, the European Court of Human Rights and the Committee against Torture, were examined in relation to how they interpret and safeguard their respective treaties, the European Convention on Human Rights and the UN Convention Against Torture, particularly concerning questions of extraterritorial jurisdiction. While both mechanisms share the common objective of ensuring the universal protection of fundamental rights, their approaches diverge significantly.
The ECtHR, as a judicial body with binding authority, has developed a pragmatic doctrine of extraterritorial jurisdiction that allocates obligations to both the Republic of Moldova and Russia over the territory of Transnistria. Despite the criticism which was expressed in the dissenting opinion and in the literature, this approach which imposes obligations on both states may represent the most balanced and effective strategy. It acknowledges the political dimension of the conflict by maintaining pressure on Moldova to pursue a peaceful settlement and to reassert control over the region, while simultaneously engaging Russia’s jurisdiction and responsibility for the ongoing human rights violations in Transnistria, violations that, in reality, would not persist without Russia’s continuous support.[31]
By contrast, the Committee against Torture has taken a more restrained position, acknowledging that Moldova lacks de facto effective control over Transnistria, which limits its ability to comply fully with its obligations under the UNCAT. A logical next step for the Committee would be to develop region-specific recommendations aimed at fostering incremental changes at the local level and encouraging cooperation between the de facto authorities and the Republic of Moldova. Ultimately, the comparison between the ECtHR and the Committee against Torture underscores a broader tension within international human rights law: the balance between respecting State sovereignty and ensuring that individuals are not left unprotected due to political or territorial complexities. The Transnistrian example reveals that maintaining accountability through overlapping positive obligations remains essential to uphold the universality and non-derogability of fundamental human rights, even beyond a State’s territorial borders.
* PhD Candidate and Seminar Convener in International Law, Faculty of Law, University of Bucharest, Romania, Lawyer, e-mail: soldanescu.tatiana@drept.unibuc.ro. The opinions expressed in this paper are solely the author’s and do not engage the institution she belongs to.
[1] Júlia Miklasová, Status of Transnistria Under International Law, in KE Gray (ed.), Global Encyclopedia of Territorial Rights, Springer, 2022, p. 1, ssrn.com/abstract=4910810.
[2] Bogdan Aurescu, Ion Galea, Elena Lazar, Ioana Oltean, Scurta culegere de jurisprudenta, ed. Hamangiu, 2018, p. 204
[3] Petra Stojnić, Gentlemen at home, hoodlums elsewhere: The Extraterritorial Application of the European Convention on Human Rights, in The Oxford University Undergraduate Law Journal, Issue X, 2021, pp. 137-170, p. 163, www.law.ox.ac.uk/sites/default/files/migrated/public_law_5.pdf.
[4] Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, § 59, ECHR 2001‑XII.
[5] Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004-VII.
[6] Loizidou v. Turkey (merits), 18 December 1996, Reports of Judgments and Decisions 1996-VI.
[7] Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 314, ECHR 2004-VII.
[8] Samantha Besson, The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to, in Leiden Journal of International Law (2012), 25, pp. 857–884, p. 869, https://core.ac.uk/download/pdf/20660691.pdf.
[9] Linda Hamid, Ilașcu: from contested precedent to well-established case-law, strasbourgobservers.com/2019/10/31/ilascu-from-contested-precedent-to-well-established-case-law/.
[10] Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 339-340, ECHR 2004-VII.
[11] Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 341-345, ECHR 2004-VII.
[12] Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 392, ECHR 2004-VII.
[13] Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004-VII, Partly dissenting opinion of Judge Bratza, joined by Judges Rozakis, Hedigan, Thomassen and Panțîru, § 8.
[14] Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004-VII, Dissenting opinion of Judge Kovler.
[15] Lidia Carchilan, The extraterritorial application of the European Convention on Human Rights and the United Nations Convention against Torture in frozen conflict regions as a tool of ensuring the prohibition of torture — the cases of Transnistria and Abkhazia, p. 61, lup.lub.lu.se/luur/download?func=downloadFile&recordOId=8984503&fileOId=8984504.
[16] Linda Hamid, Ilașcu: from contested precedent to well-established case-law, https://strasbourgobservers.com/2019/10/31/ilascu-from-contested-precedent-to-well-established-case-law/.
[17] Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, ECHR 2012 (extracts).
[18] Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 110, 23 February 2016.
[19] Lypovchenko and Halabudenco v. the Republic of Moldova and Russia, nos. 40926/16 and 73942/17, § 87, 20 February 2024.
[20] Pocasovschi and Mihaila v. the Republic of Moldova and Russia, no. 1089/09, 29 May 2018.
[21] UN General Assembly, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, Treaty series, vol. 1465.
[22] United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, General Comment No. 2 on the Implementation of Article 2 by States parties, CAT/C/GC/2, 24 January 2008.
[24] Committee against Torture, Consideration of reports submitted by States parties under article 19 of the Convention: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: 2nd periodic reports of States parties due in 2004: addendum: Moldova, CAT/C/MDA/2, 2007,par. 109.
[25] Committee against Torture, Consideration of reports submitted by States parties under article 19 of the Convention, Concluding observations of the Committee against Torture, Republic of Moldova, CAT/C/MDA/CO/2, 2010, par. 4.
[26] Committee against Torture, Consideration of reports submitted by States parties under article 19 of the Convention pursuant to the optional reporting procedure: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: 3rd periodic report of States parties due in 2013, Republic of Moldova, CAT/C/MDA/3, 2013.
[27] Committee against Torture, Concluding Observations on the third periodic report of Republic of Moldova, CAT/C/MDA/CO/3, 2017, par. 6.
[28] Committee against Torture, List of issues prior to submission of the fourth periodic report of the Republic of Moldova, CAT/C/MDA/QPR/4, 2021.
[29] Committee against Torture, Fourth periodic report submitted by the Republic of Moldova under article 19 of the Convention pursuant to the simplified reporting procedure, due in 2021, CAT/C/MDA/4, 2022.
[30] Committee against Torture, Concluding observations on the sixth periodic report of the Russian Federation, CAT/C/RUS/CO/6, 2018, par. 51.
[31] Lidia Carchilan, The extraterritorial application of the European Convention on Human Rights and the United Nations Convention against Torture in frozen conflict regions as a tool of ensuring the prohibition of torture — the cases of Transnistria and Abkhazia, p. 63, lup.lub.lu.se/luur/download?func=downloadFile&recordOId=8984503&fileOId=8984504.
