Tuesday 14 August 2012

Possible Infringement Proceedings Against Russia

Among a number of reforms brought about by Protocol 14 to the European Convention is the possibility for the Committee of Ministers of the Council of Europe to bring infringement proceedings against a state party to the Convention. Article 46(4) of the Convention reads:

If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1.
The decision to do so can be made by two thirds of the states' representatives. The Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements also specify in Rule 11 that this procedure will only be used in exceptional circumstances. The state concerned will be formally notified and will be given another six months to implement the judgment. During infringement proceedings, the Committee will be represented before the Court by its Chair (which rotates every six months) unless otherwise decided. The latter may obviously apply when the chairing country is also the state against which the proceedings are brought.

Thusfar the possibility of infringement proceedings has not yet been used. One may assume that this has to do both with political sensitivity as well as with questions of effectiveness: why would a country suddenly abide by a Court decision in an infringement procedure if it previously consistently declined to implement the original judgment at stake.

This summer, however, a first major push has been made to induce the Committee of Ministers to start infringement procedures. In the run up to the Committee's upcoming September meeting, the UK-based European Human Rights Advocacy Centre (EHRAC) and the Russian NGO Memorial Human Rights Centre have submitted a formal requested the Committee to start initiate proceedings against the Russian Federation for failing to comply with the Court's 2005 Isayeva judgment. The case, about the aerial bombarment of a village in Chechnya by Russian security forces, revealed severe human rights violations. Thusfar Russia has failed to conduct an effective investigation into the events. The case is exemplary of many other cases about the situation in the Southern Caucasus: the Court finds multiple human rights violations, Russia may pay compensation to the victims eventually (but not often very speedily) but fails to investigate or to prosecute and punish the perpetrators. The current request by the two NGOs is an attempt to tackle the impunity in the region in a new way. A document compiled by the NGOs shows the many instances in which Council of Europe institutions pointed at this problem. The formal request argues that in this case one can speak of exceptional circumstances due to the gravity and scale but also the systemic and continuing nature of the human rights violations in the region.

It is ironic that the very state that delayed the entry into force of Protocol 14 for so many years is now the first to potentially face one of its procedural innovations. It is difficult to predict whether the Committee of Ministers will heed the call of these two NGOs who have been actively supporting victims of the violations at stake before the Court. Is it still too sensitive to launch such a high-profile legal attack on the Russian Federation or do other state parties finally think that more steps are needed than just another series of interim resolutions calling for implementation? There may be another effect of this action though, irrespective of whether infringement proceedings are started. Thusfar the Court has chosen to deal with the human rights violations in Chechnya on a case by case basis. In spite of the calls of many applicants to formally declare that the problem is systemic, the Court has declined to do so (although it did ask questions about the potentially systemic nature of the issues in a case communcated last year, Aslakhanova v Russia - see para. 56 of the NGO request). Maybe the time has come for the Court to state what many observers have remarked for a long time: that the gravity and continuity of the human rights violations are such that there is a systemic problem of violence and impunity in the region. One may hope for all the victims that this latest attempt will not end up in one of the drawers of the Committee of Ministers without any action being undertaken.