62 CATAN AND OTHERS v. MOLDOVA AND RUSSIA JUDGMENT – SEPARATE OPINIONS PARTLY DISSENTING OPINION OF JUDGE KOVLER (Translation) I regret that, as in the earlier cases of Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, ECHR 2004-VII) and Ivanţoc and Others v. Moldova and Russia (no. 23687/05, 15 November 2011), I do not share the conclusions of the majority regarding a number of points. In those cases I expressed my disagreement with the methodology of the analysis (wrong parallels with a Cyprus-type conflict), the (somewhat selective) presentation of the facts, the analysis (both disputable and disputed by a number of specialists1) of the concepts of “jurisdiction” and “responsibility”, so there is no need for me to do so again here as the present case is part of a line of Transdniestrian cases. I shall therefore concentrate on the aspects peculiar to this particular case. In my view, the Court has sought to avoid at all costs “a legal vacuum” in the territorial application of the Convention. The Court should therefore establish first and foremost what the exceptional circumstances are that are capable of giving rise to the exercise of jurisdiction by the Contracting State (Russia here) outside its own territorial borders. This is the thrust of the assessment of the general principles relevant to jurisdiction, within the meaning of Article 1 of the Convention, expressed by the Court in paragraphs 104 and 105 of the judgment, supported by numerous examples from its own case-law including its most recent decisions. It appears to establish such circumstances by suggesting, in paragraph 114, that such extraterritorial control can be exercised directly by a State through its agents or the assertion of its authority, but concludes immediately afterwards, in the same paragraph, as follows: “The Court accepts that there is no evidence of any direct involvement of Russian agents in the action taken against the applicants’ schools”. So, what exceptional circumstances remain? The “effective control over the “MRT” during the relevant period” (see paragraphs 114 and 116 of the judgment), plus the conclusions containing strong political overtones (paragraphs 117-121). Is this sufficient? Some observers refer to “the unforeseeability” of the Court’s case-law in certain areas, particularly humanitarian law (see Kononov v. Latvia [GC], 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” – G. Cohen-Jonathan. “Quelques observations sur les notions de ‘juridiction’ et d’injonction”, Revue trimestrielle des droits de l’homme, no. 2005/64, p. 772. 1