Russia and the European Court of Human Rights: Implications for U.S. Policy

By
William E. Pomeranz

The Kennan Institute and the Henry M. Jackson Foundation sponsored a one-day seminar on 3 May 2011 to explore the role of the European Court of Human Rights (ECtHR) on the development of the rule of law in Russia.

The first panel focused on the Russia’s decision to ratify the European Convention for Human Right (the “Convention”) in 1998 and thereby subject itself to the rulings of the ECtHR. Joanna Evans, Senior Lawyer, European Human Rights Advocacy Center, began by describing the idealistic and ambitious origins of the Convention; the right of citizens to pursue individual petitions against their own state, she argued, was nothing short of revolutionary. Evans added that the Court now handles a wide variety of cases on the cutting edge of human rights, with significant impact both on legal and political developments in Europe. William Pomeranz, Deputy Director, Kennan Institute, noted that despite some initial skepticism about Russia’s ability to abide by the Convention, the Council of Europe ultimately allowed Russia to join the organization. Since then, the ECtHR has become a major conduit by which international law flows into the Russian judicial system. Natalya Taubina, Director, Public Verdict Foundation, examined the important role that NGOs have played in bringing the Convention and the ECtHR to Russia. Although the Convention assigned no formal role to NGOs, Taubina nevertheless insisted that such groups have an important part to play, most notably, by highlighting the enforcement (or lack thereof) of ECtHR decisions. NGOs also engage in advocacy, primarily related to implementation of judgments, and further provide expert analysis and recommendations regarding important ECtHR cases.

The second panel took an in-depth look at Russia’s current relationship with the ECtHR. Alexei Trochev, Lecturer, University of Wisconsin Law School, described how Russians bring cases before the ECtHR. The procedure itself is not overly complicated: no lawyers are required for the initial complaint; instead, a potential applicant need only observe the filing deadlines and pay for postage to France. As a result, noted Trochev, Russians have proceeded to flood Strasbourg with petitions. The largest number of these cases involves the non-execution of decisions of national courts, followed by cases dealing the protection of property; the need for a speedy trial; inhuman or degrading treatment of detainees; and the right to liberty and security. In particular, Chechnya is a special case when it comes to the implementation of ECtHR decisions, maintained Tanya Lokshina, Deputy Director, Human Rights Watch-Moscow Office. In fact, not a single judgment on Chechnya has been effectively and fully implemented to date. In over 170 rulings against Russia dealing with forced disappearances, abduction, and torture, the Russian government consistently has chosen not to implement the individual and general measures stipulated by ECtHR’s policy recommendations. In other words, its cooperation with Strasbourg is limited to paying out financial compensations to the victims, Lokshina explained, but no substantial steps are taken to investigate relevant abuses or prevent similar abuses from happening in the future. Lokshina recently interviewed several dozens of Chechen citizens who won their cases in Strasbourg and received monetary compensations from the government, but still found no real justice, particularly against military and law enforcement servicemen who had gone unpunished for their human rights violations. Anton Burkov, Deputy Chief of Party, Management Systems International (Moscow), focused on how the Convention has been applied in Russia’s regions. When local lawyers first tried to refer to the Convention and to ECtHR decisions in domestic courts, Burkov noted, they faced strong resistance from judges who refused to recognize “foreign law” as a source of law. Today—primarily as a result of the initiative of NGO lawyers—the situation has changed, and a growing number of district courts accept the Convention as a part of Russian law.

The third panel looked at recent reforms at the ECtHR, and their potential impact on Russia’s relationship to the ECtHR and, more generally, on U.S. human rights policy in Russia. Karinna Moskalenko, Founder, International Protection Center, argued that Russia’s recent ratification of Protocol 14—expediting cases before the ECtHR—may force the Russian government to show a greater interest in the enforcement of judgments. At the same time, however, Moskalenko argued that Protocol 14 was not the future of the ECtHR, as it could not eliminate the backlog of cases. Paul Saunders, Executive Director, Center for the National Interest, put Russia’s experience with the ECtHR in a broader perspective. As a great power, Russia prefers to be a rule setter, as opposed to a rule taker, thus making it difficult to integrate Russia into global institutions such as the ECtHR. Saunders also addressed the question of human rights and WTO accession, and whether the U.S. should use human rights as leverage to Russia’s membership in the organization. Saunders suggested that any post-Jackson-Vanik legislation may want to focus on concrete topics—such as corruption or the Russian judiciary—instead of more narrowly on human rights in order to gain broader support for such efforts. Nadia Diuk, Executive Vice President at the National Endowment for Democracy (NED), asked what the U.S. has in its legislative arsenal that might compare to the ECtHR. Diuk proposed various institutional approaches—including a U.S. commission to monitor human rights and the rule of law; State Department certification of human rights compliance; or a prohibited persons list related to human rights violations—that could be employed in a post-Jackson-Vanik world to promote Russian human rights.

Blair Ruble, Director, Kennan Institute

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