Tuesday 27 March 2018

Book Review on Russia and the ECHR

It is my pleasure to introduce a guest post by Joyce Man, former legal intern at the European Human Rights Advocacy Centre (EHRAC), reviewing the book Russia and the European Court of Human Rights - The Strasbourg Effect by Mälksoo and Benedek: 

Book review: Russia and the European Court of Human Rights: The Strasbourg Effect (Cambridge University Press 2018) Lauri Mälksoo and Wolfgang Benedek (eds.)

Discussions on Russia’s membership of the European Convention on Human Rights (ECHR) easily turn to its weaknesses. A new book, which examines whether the Convention has fostered human rights protection in Russia, raises significant reasons for concern, particularly in light of developments in the past three years. Nevertheless, some authors point to the positive influence of the European Court of Human Rights (ECtHR) on Russia, and vice versa. In spite of continuing tensions in their turbulent relationship, they manage to find a sliver of optimism.

Russia and the European Court of Human Rights (Cambridge University Press 2018) brings together fifteen practitioners and academics with expertise in human rights in Russia, who each reflect on developments on the twentieth anniversary of Russia’s accession to the ECHR. Drawing from their experiences in and out of the courtroom, as well as from sociological and historiographical perspectives, they paint a picture of a relationship which, while at times strained, has also been dynamic and positive.

The book comes at a time of deep scepticism and introspection about Russia’s commitment to the European human rights regime, and as a tense confrontation ensues among the Russian Duma, the Russian Constitutional Court (RCC), and the ECtHR about the supremacy of the Convention vis-à-vis the Russian Constitution. Russia also suspended payments to the Council of Europe (PACE) after its voting rights in the Parliamentary Assembly  were suspended following the its annexation of Crimea, adding to the tension. 

The saga began with the ECtHR’s 2014 decision awarding Yukos shareholders an unprecedented $1.86 billion for the state’s violation of the oil company’s right to fair trial in the state’s protracted tax evasion probe, which prompted Duma deputies to challenge the constitutionality of Russia’s ratification of the ECHR. In 2015, the RCC declined to rule the ratification unconstitutional. This led the Duma to legislate new powers for the RCC to declare ECtHR judgments impossible to implement. In 2016, the RCC deployed these powers in Anchugov and Gadkov, a case concerning prisoner voting rights, to find the ECtHR ruling in that case unenforceable. The confrontation continued on in 2017, with the RCC ruling the ECtHR’s Yukos award unenforceable. As the book went to print, tensions remained at an all-time high.

Russia and the European Court of Human Rights therefore provides a timely reflection and opportunity for stock-taking. From the very beginning of Russia’s membership of the Council of Europe (CoE) in 1998, human rights advocates have pinned great hopes on it for cultivating robust rights protections not only in Russia, but the former-Soviet region as a whole. The events of the past few years has thrown these hopes into doubt. However, as several authors show, the relationship between Moscow and Strasbourg was not always this confrontational.

In one contribution focusing on violations in Chechnya, Philip Leach, director of the European Human Rights Advocacy Centre (EHRAC), highlights cases which confirmed the practice of torture, deaths in custody, enforced disappearances, extrajudicial executions, deaths caused by aerial bombardment, artillery shelling, and armed attacks in Russia. They include EHRAC’s first successful cases, such as Khashiyev and Akayeva, concerning torture and extradjudicial execution in Grozny; Isayeva, on the indiscriminate bombing of civilians in Katyr-Yurt in 2000; and later, cases regarding redress for other victims in that attack in Abuyeva and ors and the need to address impunity in Abakarova. While ultimately compliance has been weak, these cases proved violations in an environment of impunity, and attested to the persistence of the claimants, their representatives and the Court – an achievement in itself.

The examples from EHRAC’s work also reveal the development of successful case law which could have implications for future litigation. They include those relating to the indiscriminate aerial bombing in Kogi village near Dagestan (Esmukhambetov and ors v Russia) and serious flaws in the authorities’ use of weaponry in Beslan school hostage-taking of 2004 (Tagayeva and ors v Russia).

A key area of success has been in property rights. As Vladislav Starzhenetskiy notes, following the disintegration of the Soviet Union, private parties were unable to enforce court orders for the state to perform obligations such as providing transport services, social welfare, and state-funded accommodation. The successful case of Burdov at the ECtHR led the authorities to spend over a decade reforming the enforcement mechanism and to find a solution. Similarly, ECtHR cases prompted the state to resolve the longstanding non-settlement of Soviet commodity bonds and to enact federal legislation for payment in exchange (Malysh and ors); to introduce stricter rules on extraordinary review procedures, which had undermined judgment debts (Panasenko); to amend counter-terrorism measures involving the destruction or damage of property (Gubiyev); and to improve property rights interferences in the course of criminal proceedings (Novikov).

Strasbourg case law has been used in Russia’s courts, as noted by Sergey Marochkin. To be sure, the RCC has taken a confrontational stance against Strasbourg since it ruled in July 2015 that it could determine the enforceability of ECtHR judgments. However, prior to that, the Constitutional Court had regularly quoted ECtHR judgments, referenced them for justification it its own reasoning, made persistent statements in support of observing its decisions, and for the most part, recognised them.

Interactions with Russia has also positively impacted the Strasbourg system, as Elisabet Fura and Rait Maruste observe. Cases involving Russia led, for example, to the creation of the European Prison Rules (Kalashnikov) and the further development of case law on discrimination (Markin). They highlighted the lack of legal assistance, a problem in many member states (Mikhaylova), and prompted debate on the right not to be tried twice for tax breaches, under administrative and criminal law, in Finland and Sweden (Zolotukhin). Even unsuccessful cases had positive impacts, such as the rare standalone application of Article 38 in Janowiec and ors v Russia regarding the Katyn massacre. As the authors note, this is the only known case where the Court has found a violation of Article 38 on its own; previously it was always in conjunction with Articles 2 or 3.

While the past two decades have been largely optimistic, more recent developments have thrown observers’ evaluations of the Russia-Strasbourg dynamic into doubt, writes Bill Bowring. The RCC’s decision on the ECtHR’s Yukos judgment and Anchugov and Gladkov have caused most of the writers to question Russia’s future engagement with Strasbourg. Russia’s record on LGBT rights and in Chechnya have worsened, and the country has adopted an increasingly nativist approach. Anton Burkov observes pessimistically that domestic courts often do not apply Strasbourg case law, not for a lack of knowledge or high case load, but more worryingly, a lack of motivation, political will and freedom.

For these reasons, Wolfgang Benedek, in summary, concludes that while socialisation through the ECHR system did have an impact, it slowed after 2007, and today, ‘the Strasbourg effect is dwindling’. The growing list of confrontational judgments is cause of ‘serious concern and undermines the socialisation process’.

All this begs the question of expectations and calls for reflections about what was possible given the complexities that Russia faced after the fall of the Soviet Union. From the perspective of the representatives who had a hand in bringing about Russia’s membership, the road was never going to be smooth. Stepping back to reflect on the historical trajectory, Petra Roter reminds us that the Committee on Legal Affairs and Human Rights had acknowledged that Russia had not yet met the requirements of membership at the time of its entry. However, it believed that membership would create conditions of conformity, based on the idea that it was better to have Russia in than out. The long view shows that relations with the Council of Europe, while ‘troubled’, have been ‘notable’, and that Russia has participated meaningfully in many bodies and made an impact through its committed and skilled representatives. Likewise, Mikhail Antonov questions whether expectations were unrealistic to begin with; transplantation was always bound to be difficult. He is not so pessimistic about Russia’s interaction with the ECHR.

As the book went to print not long after the Yukos and Anchugov developments, most of the writers have refrained from concluding the worst, hoping – based on the positive experiences over a period of two decades – that the relationship can yet change.

Since the book’s publication, reports suggesting Russia may withdraw from the ECHR have persisted. Yet there are still ample reasons to believe that the relationship can weather the storm. First, officials have denied that withdrawal is on the agenda (including Federation Council speaker Valentina Matyienko in December 2017 and Duma vice-speaker Pyotr Tolstoy in March 2018). Second, leaving the ECHR is no mean feat, as demonstrated by the debate surrounding the UK’s own attempt to withdraw. It requires unravelling decades of intertwined jurisprudence and raises wider and deeper questions regarding treaty validity and compliance – in a nod to that point, the Russian Consitutional Court itself discussed the implications with regards the Vienna Convention on the Law of Treaties in the 2015 judgment (at page 14) and recent Anchugov and Gadkov ruling (paras 74-77). Finally, and perhaps most importantly, it should be noted that whatever the difference between Moscow and Strasbourg, Russia can still see the utility of the ECHR. As stated by Tolstoy, the Duma vice-speaker, they ‘consider it important to preserve a common legal space in Europe’. This leads the discussion back to the reason for the relationship in the first place. Twenty years ago, Russia found reason to join the ECHR. These included prestige, investment, the projection of an image as a rule-of-law abiding, ‘civilised state’, as noted by Lauri Mälksoo in the book. Perhaps idealistically, a desire to improve human rights protections could be added. Regardless what one thinks of those reasons, twenty years later, many of them continue to hold. The question is which ones, and for how long.