Monday 27 September 2010

Pilot Flies Back to Moscow

Last week the European Court of Human Rights issued two decisions in cases concerning the non-enforcement of domestic court judgments (Nagovitsyn and Nalgiyev) and the excessive length of national court proceedings (Fakhretdinov and Others) in Russia. The human rights complaints of the five applicants (in total) were declared inadmissible, since the persons in question were first required to exhaust a new domestic remedy which provided for compensation in such cases.

These are the latest echos of the pilot judgment in the case of Burdov v. Russia (No. 2) of 2009 in which the Court addressed the systemic problem of non-enforcement of domestic court judgments in the Russian Federation. It held in that judgment that Russia had to set up national compensation procedures for people victims of such non-enforcement. See my earlier post on the case here. Russia let the deadline, which had been set by the Court, slip without taking visible action. This led to admonishments by the Council of Europe's Committee of Ministers in December of last year. In May of this year, however, a Compensation Act entered into force, which was also open to those whose claims were pending in Strasbourg. This new law covered both kinds of human rights violations: non-enforcement of judgments and court proceedings taking too long.

In the two most recent decisions the Court observed that the new national remedy was available, that Russian courts were required by the law to apply ECHR compensation criteria, and that it was designed to remedy the problems at stake, also flowing from the Burdov pilot judgment. Even though domestic practice was as yet almost entirely absent, the Court clearly gave the Russian authorities the benefit of the doubt. However, matters are not finished, since the Court also noted that in practice problems might arise, thus leaving the door slightly open for new future complaints. It did not, however, want to rule in abstracto on the probability of such failure of the new remedy. It held that "the Court's position may be subject to review in the future depending, in particular, on the domestic courts' capacity to establish consistent case-law under the Compensation Act in line with the Convention requirements. Furthermore, the burden of proof as to the effectiveness of the new remedy will lie in practice with the respondent Government." Thus, once in the future applicants (maybe even the very same persons again) would claim the remedy was innefective, it would be for the state to prove the contrary.

The practical result is that hundreds of applicants who had lodged claims after the Burdov judgment of January 2009 are now required to try the new remedy on the national level. A slight easing of the case-load on the Strasbourg docket for sure. But it is not certain what the future may hold for these applications. One may only hope that both the Committee of Ministers (in its offical capacity of supervising the implenmentation of ECtHR decisions) and the Court itself in future cases of people who have tried that mechanism, remain vigilant as to the effectiveness in practice of the compensation mechanism. In addition, the Committee of Ministers should make sure that Russia indeed also tackles the underlying problems. Otherwise, this latest "pilot" step is only a stay of execution for both Strasbourg and the applicants.

The decisions can be seen in light of a more general development in which the Court tries to put the subsidiarity principle (it is in the first place for states to solve human rights problems) into practice. Earlier this year, in a similar vein, applications of Cypriots reclaiming lost property were relegated back to the national level - in that case a compensation commission set up in Northern Cyprus.