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The European factor in Russian justice

Kirill Koroteev
26 June 2008

Just over 10 years ago, on 5 May 1998, Russia joined the Convention for the Protection of Human Rights and Fundamental Freedoms. This meant that it recognised the jurisdiction of the European Court of Human Rights to examine appeals on human rights violations in Russia.

Initially, ratification of the Convention was barely noticed in Russia. It had no impact, for example, on the planning and implementation of military operations in the conflict in the North Caucasus. And these operations (non-judicial executions, indiscriminate bombing, torture, forced disappearance, unlawful arrests...) had nothing in common with the Convention.

The first decision on a case was not delivered against Russia until May 2002. Until 2005 these decisions were not only rare; they were widely covered in the media, and seemed to be taken seriously by the Russian authorities. But over the last few years, a new, apparently long-term, trend has dominated the relationship between Russia and the European Court.

Looking back on a decade ‘under the heel of Strasbourg' what is most striking is that in recent years, more appeals have been sent to the Court from Russia than anywhere else. Approximately 20% of all appeals registered for examination in Strasbourg are submitted against Russia. Of these, some 98-99% are clearly unfounded. As long as these are rejected by the unanimous agreement of three judges the Court makes no report to the government on the appeal.

The remaining 1-2% of appeals are recognized by the Court. The number of final decisions made on these already numbers over 500. These decisions mainly concern long court hearings in Russian courts; the non-implementation of decisions by Russian courts on civil cases; the use of review proceedings to reverse court decisions made by Russian courts in the applicant's favor, and lack of grounds for holding a person in custody.

Decisions on Chechen cases are not as numerous, but extremely important. There have been over 30 of them. There have not been many ecological cases. But the three which have been considered have presented serious problems both for the Court and for the Russian authorities. The same is true of cases concerning extradition and deportation to Central Asian countries.

Since all the provisions of the Convention violated by the Russian authorities have equivalents (often much more specific) in internal Russian legislation, over and over again the Strasbourg Court has enjoined Russia to: ‘Observe your own Constitution...'

Problems of Application

The Convention differs from many other international agreements in one important respect. It can impose legally obligatory sanctions for violations on those nations which have signed up to the European Court of Human Rights.

In addition, in the 10 years of its existence, the Court has also been developing the norms of the Convention through its decisions on specific cases. These are mistakenly, or for convenience, called precedents. For example, the text of the United Nations' International Covenant on Civil and Political Rights constitutes about 97% of the information about its procedures (and the UN Committee for human rights does not make legally compulsory decisions). The text of the European Court's Convention, on the other hand, accounts for 3%. The remainder consists of its decisions.

The Russian courts have thus found themselves in a novel situation. They are bound by an international agreement which not only creates rights for citizens and obligations for state bodies. It also requires a reference to previous court decisions to establish the contents of these rights and obligations.

The Russian Constitution has similar characteristics: its text of 5 May 1998 was accompanied by 99 decrees and several hundred decisions and definitions of the Constitutional Court which interpreted its regulations. However, it cannot be said that Russian courts in 1998 (and this conclusion is still largely true today) really have implemented the Constitution and the decisions of the Constitutional Court.

An additional difficulty is that only a small number of the important decisions by the European Court for human rights are available in Russian translation, and only a handful of Russian judges know English and French.

In accordance with article 15 of the Constitution of the Russian Federation (RF), international agreements are part of the Russian legal system, and if federal laws contradict them, then international norms are applied. It would seem that the meaning of this regulation is clear: the Russian authorities must observe the Convention, and the meaning of its regulations are established with the help of decisions of the European Court. This was the approach of the Constitution Court in 2001: Russia's governing institutions must take decisions in accordance with the Convention. The Constitutional Court itself frequently referred to the Convention and the decisions of the European Court.

However, in 2007, the Constitutional Court passed a new decision. According to this, the words ‘are part of its legal system' in the Constitution, should be understood to mean that international agreements, including the Convention and decisions of the European Court, should only be taken into account in passing decisions. In Russian law, the words take into account have a clear meaning: that which should be taken into account is not obligatory.

This restricted approach was taken by the Supreme Court of Russia earlier: it stated that in passing a court decision, courts should indicate the law they are guided by, and also take into account the decree of the RF Constitutional Court, the decree of the Plenum of the RF Supreme Court and the decision of the European Court for Human Rights.

The Supreme Court established the same obligation to take judicial acts of the three courts into consideration, but in practice a court decision that contradicts the decision of the European Court is unlikely to be reversed, while a decision that contradicts a decree of the Plenum of the Supreme Court will not remain in force after an examination of the case by a higher authority.

The formally obligatory force of the decrees of the Plenum of the Supreme Court was abolished before the present Constitution was passed. But in reality it is much more obligatory than the Constitution and the Convention. Why? In my opinion, the fact of the matter is that they are written in Russian bureaucratic language that judges can understand, and resemble laws in the style of their wording. They do not contain abstract concepts (such as ‘legal definition', ‘ratability'...), the application of which requires an assessment of the facts in each specific case, of the juridical arguments of the parties and a balancing up of the different interests in the case. The decrees of the Plenum of the Supreme Court make it easier for a Russian judge to solve the only task which he or she faces in each case: to find a provision of law that applies neatly enough to decide a case. Neither the decisions of the RF Constitutional Court, nor the decisions of the European Court of Human Rights, as a rule, facilitate this particular outcome.

Withholding of documents

In recent years, Russian executive power has demonstrated its non-cooperation with the European Court. Since 2003, it has refused to present the Court with documents on Chechen cases. During court proceedings, the European Court has regularly demanded from the Russian authorities, and continues to demand, materials concerning the violation of the rights of the applicants in criminal cases.

In the early cases these materials were not presented in full. A number of documents were excluded as ‘not being relevant to the case' or as constituting a state secret. But even the documents presented helped to throw some light on many aspects of Chechen cases. In recent years they have not been presented at all. The Russian representative (both Pavel Laptev, and Veronika Milinchuk who replaced him) claim that the demands of the Court contradict article 161 of the RF Criminal Procedural Code, which prohibits the disclosure of materials of an uncompleted investigation. The Court regularly proposed to apply the rule of confidentiality to these documents (they would only be know to the Court and people involved in the case, but not the wider public). But refusals followed again and again. And although the Court has already established several times that the Russian authorities are violating their obligations under the Constitution which require that the state cooperates with the Court (article 38), this has not changed the Russian government's behavior.

Non-observance of Court instructions

A similarly complex situation surrounds the observance of the Court instructions concerning article 39 of Court Procedure (‘Temporary measures'). As a rule, these instructions are applied in cases where the applicant faces extradition or deportation to countries where they may be subject to torture or brutal treatment. In a number of cases, the Court passed decisions requiring the Russian authorities to stop an extradition or deportation to Turkmenistan and Uzbekistan. But Murad Garabaev, Rustam Muminov and Abdugani Kamaliev were sent back to these countries, despite the decisions of the Court.

The Russian authorities ‘returned' the first of them to Turkmenistan. The other two were sentenced to lengthy prison sentences by Uzbek courts after an unfair trial, where torture was evidently used. In Kamaliev's case, a period of more than 24 hours passed between the Court decision and his departure by plane to Uzbekistan. During this time the representative of Russia at the court and the police bodies in Tyumen were informed of the decision. But the deputy head of the Tyumen Oblast Main Department of Internal Affairs refused to take the applicant off the plane, saying ‘I have the decision of the Russian court, and I will carry it out.'

A deteriorating relationship

In the years immediately following the ratification, the Convention was taken seriously by legislators. After the ratification, a federal law was passed on amendments to criminal procedural and correctional legislation. This referred directly to the Convention. The new criminal procedural code passed in 2001, which came into effect in 2002 was based in many ways on principles of the Convention. As later became clear, this approach was an exception.

In late 2006, the State Duma refused to ratify Protocol № 14 to the European Convention, the key document in the Court reform that was approved by 46 nations in the Council of Europe. One last ratification from Russia was required for the Protocol to come into effect. But deputies suddenly discovered that the document contradicted the principles of Russian law.

Among the ‘principles' to which they referred was the collegiality of court decisions: Protocol № 14 allowed that the final decisions by Strasbourg judges on the inadmissibility of clearly unfounded appeals would be made single-handedly. However, the final decision on many cases in Russia are also made single-handedly. This is the case when judges of Oblast courts and the RF Supreme Court refuse to initiate review proceedings. These decisions can also be reversed by the heads of these courts, again single-handedly.

Incidentally, review proceedings, which make it possible to reverse court decisions that have come into effect and even been carried out, have been discussed on several occasions by the European Court. For access to the court becomes meaningless if the result of a trial can be reversed many months or even years later.

At the same time, review proceedings are one of the key elements of the court system in Russia. The vast majority of cases examined by the RF Supreme Court are review cases. Review cases take up 100% of the time of Oblast court presidiums. This type of proceeding allows higher-ranking judges to control decisions by lower-ranking judges, supporting the ‘vertical' of judicial power. The reform of review proceedings that was begun was halted after the above-mentioned decision of the Constitutional Court in 2007 (where it stated that the Convention was not obligatory, and only needed to be "taken into account"). For constitutional judges, review proceedings presented virtually no problems in their compliance with the RF Constitution, i.e. European law contradicts the Russian Constitution, but review proceedings can continue to exist.

Review proceedings would seem to be nothing more than a problem of legal technicality. If these cannot be solved by the Russian authorities for over five years (and the problem could have been picked up as early as 1999, when a similar violation was found in a case against Romania), then it is not surprising that the state-defendant is not particularly eager to implement the decisions of the Court on cases of blatant and wide-spread violations of human rights in Chechnya.

Moreover, although the compensation awarded by the Court is paid regularly, those responsible for the disappearances, non-judicial executions, torture and indiscriminate bombing have not appeared in court. They fail to appear despite the fact that the Court decisions often make it quite clear who should be charged. For our law on the war against terrorism still stipulates that anti-terrorist forces bear no responsibility for the damage they cause. This includes damage to the lives of innocent people.

In closing, I would like to share one personal memory. In October 2007, I took part in a Conference in Lisbon on the first European Day against the death penalty. The reason I was invited was probably because Russia has not abolished the death penalty, to this day. Fortunately, the punishment is not applied in Russia. Why? Because of its participation in the Council of Europe.

Yet Russia still protects itself from the decisions of the Strasbourg court, but recourse to the traditional solution: we must observe our Constitution.

Kirill Koroteev is a human rights lawyer and research associate at the Paris 1 Pantheon-Sorbonne University

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