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Moscow attempts to elbow Strasbourg aside

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For many in Russia the word ‘Strasbourg’ is identified with justice and the protection of human rights and the European Court receives thousands of applications every year. But recent proposed amendments to Russian laws would make the process of applying to Strasbourg more complicated and give the Russian Constitutional Court powers to override judgments from Strasbourg, says Anna Sevortian

Anna Sevortian
5 September 2011

Editors’ note: Since the first European Court of Human Rights judgment on a Russian case was delivered in 2002‘ Strasbourg’ has become a synonym for international justice in the eyes of many Russians. Today the European Court receives tens of thousands of applications from Russia each year – sadly, the majority of them inadmissible – making it the most effective international instrument for Russian human rights protection. Even with Russia’s problematic record on implementing the court’s judgments, many in Russia – authorities and public alike – seem to recognise the court’s transformative potential. Unfortunately, this has also meant it was not too long before revisionists got to work and the legitimacy of the court is increasingly being questioned. 

A recent and innovative study by University College London compares the influence of the European Court in newly-acceded countries with its influence in countries that acceded some time ago. The research bears witness to the court’s transformative influence in the newly-acceded countries, such as Bulgaria and Turkey. But its truly striking finding was that the European Court continues to enjoy a high level of legitimacy among politicians, judges and lawyers in each of the 5 countries studied (UK, Ireland, Germany, Turkey, Bulgaria), despite their varying records on implementation. In Russia, however, where this record is to a certain extent comparable with Turkey’s, the court’s legitimacy is being increasingly questioned.

On 20 June 2011 Alexander Torshin, acting chair of Russia’s upper parliamentary chamber, introduced a bill proposing amendments to a number of laws. The draft bill stipulates that in cases where the European Court has found a provision of Russian law to be incompatible with, and therefore a violation of, the European Convention on Human Rights (ECHR), this judgment should be the subject of an additional review by Russia’s Constitutional Court.

ECHR

Russia ratified the European Convention for Human Rights in 1998. Most of the cases filed by citizens of Russia involve the non-execution of decisions of national courts. Other cases deal with the protection of property; the need for a speedy trial; inhuman or degrading treatment of detainees; and the right to liberty and security (Photo : European Court web site)

According to the draft bill Russia would have to implement the European Court decision only in the event of a Constitutional Court finding that the given provision of Russian law violates the Russian Constitution. In effect this means that the Constitutional Court is able to override and block the European Court’s rulings, on both general and individual measures. The proposed amendments would not affect monetary compensation, which would continue to be paid.

"If adopted, the bill would place Russia in contravention of its legal obligations and obstruct access to justice for Russian citizens."

Introducing the bill, Torshin emphasized that it was aimed at protecting Russia’s sovereignty. An explanatory note to the bill linked its creation with controversy surrounding a complaint filed at the European Court by Konstantin Markin, a Russian army officer and single parent from Nizhny Novgorod. In 2005 the head of Markin’s army unit denied his request for long-term parental leave on the grounds that such leave can only be granted to female military personnel. Markin was recalled to duty and started a series of legal proceedings, claiming, among other things, discrimination. In 2008 Markin lost his discrimination case in the Constitutional Court. But the European Court’s ruling on the Markin case, handed down on 7 October 2010, found that Russia had violated both his right to a family life and the European Convention’s ban on gender discrimination. Russia appealed to the Grand Chamber of the European Court. The case is now awaiting its verdict, which will be final.

Soon after this Valery Zorkin, chairman of Russia’s Constitutional Court, publicly criticised several of the European Court’s judgments, including Markin v Russia. He described them as ‘political’ and warned that Russia might ignore judgments involving ‘issues of sovereignty’ and might even withdraw from the jurisdiction of the European Court. Torshin introduced the bill after the extensive political debate that followed Zorkin’s remarks.

Access to justice

If adopted, the bill would place Russia in contravention of its legal obligations and obstruct access to justice for Russian citizens. In August Human Rights Watch, the International Federation for Human Rights and Amnesty International wrote to President Dmitry Medvedev, urging him to make a clear public statement against Torshin’s bill.  The letter outlined four major concerns: 

  • first, the draft amendments contravene a long-standing principle of international law. When Russia signed up to the European Convention on Human Rights in 1998, she acknowledged its binding obligations and agreed to abide by the European Court’s final decisions;
  • second, the amendments contradict the Russian Constitution, which recognises the supremacy of international treaties and agreements over national legislation;
  • third, the Russian Constitutional Court has no authority to interpret the European Court’s judgments in a way that contradicts that Court’s rulings;
  • finally, the bill proposes that domestic remedies should be considered to have been exhausted only after a ruling from either the Supreme Court or the Supreme Arbitration Court of Russia. This provision of the draft law, if adopted, could mislead potential complainants, causing them to miss the deadline for filing a complaint with the European Court – within 6 months of the cassation appeal.

Similar concerns have been voiced by individuals and organisations inside and outside Russia. Thorbjorn Jagland, the Secretary General of the Council of Europe, proposed a thorough debate of the amendments “as there could be serious consequences both for the Russian Federation and the Council.”

"Debates relating to the European Court could become a focal point in the upcoming election cycle and parliamentary session."

Judge Anatoli Kovler, Russia’s representative at the European Court, said the bill was an attempt to avoid Russia’s international obligations. Konstantin Kosachev, head of the State Duma Committee on International Affairs, said in a TV interview that the draft was “quite dubious.” The Russian Communist Party filed a law suit with the Supreme Court claiming the initiative was unconstitutional, and ‘Yabloko’ party members organised protests. A number of leading Russian human rights campaigners, including the chair of the Moscow Helsinki Group Lyudmila Alexeyeva, sent a letter to the Duma asking it to reject the bill, as it “will take us [Russians] out of the civilised world.”

What next?

Even though parliament suspended consideration of the draft on 1 July 2011, the bill is still on the agenda for the autumn parliamentary session. Many say it is too poorly drafted and has attracted too much criticism at home and abroad to be adopted. It has, nevertheless, made a statement and could be interpreted as testing the water, to see how much of an appetite there is in Russia for challenging the legitimacy of the European Court, and how robustly the Council of Europe might respond. It would seem very likely that some steps will be advocated to limit the European Court’s powers. Even without consideration of the judgments involving the North Caucasus, where Russia is held accountable for human rights violations in Chechnya, the number of judgments which require fundamental change in Russia is increasing. Some of them are on politically sensitive issues.

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In April 2011, for instance, the European Court found that Russia’s 2007 dissolution of the Republican Party of Russia contravened Article 11 of the European Convention on the right to freedom of assembly and association. In its ruling the European Court criticised the requirements for the registration of political parties, because they put a disproportionate burden on the parties. Strasbourg also declared admissible a complaint filed by several applicants questioning the validity of the 2003 State Duma election results in view of the numerous violations recorded at the time. A decision could be delivered before the December Duma elections. Another high-profile case scheduled for hearing in October concerns Russia's investigation of the Katyn massacre. This case was brought by relatives of the Polish military officers killed there by the NKVD (Soviet secret police) in 1940.

Many more cases await their turn. These include the complaint filed by the Yukos shareholders, claiming the expropriation of the company. In the coming year the court may also consider the complaint filed by the newspaper Novaya Gazeta after it was found guilty of defamation for criticising a Ministry of Defence expert opinion referred to in the prosecutor's decision to close the criminal case surrounding the 2000 Kursk submarine disaster.

Debates relating to the European Court could become a focal point in the upcoming election cycle and parliamentary session. Now is the time for the Russian leaders and its international partners to take a strong stand on the binding nature of European Court rulings, lest it fall victim to political posturing.

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