Wednesday 23 March 2022

ECHR Continues to Apply for Russia Until 16 September 2022

The European Court has made public today its decision about the date until when the Russian Federation, after having been ousted from the Council of Europe last week, is bound by the ECHR: 16 September 2022. The decision, adopted by the plenary Court yesterday (22 March), thus counts six months from then. Taking note of the plethora of events of last week on which we reported earlier on this blog, from the Parliamentary Assembly's and Committee of Minister's actions to the notification of Russia itself as well as the Court's President's decision of 16 March to suspend all applications against Russia, the Court has now cut what undoubtedly must have been a very complex Gordian knot. 

It must be noted that the Court mentioned two considerations underlying its decision. One is, not unsurprisingly of course, Article 58 ECHR, on denunciation and cessation. The other, is a long-standing principle of the Court's own interpretation of the European Convention, mentioned explicitly in this decision: 

"the object and purpose of the Convention, as an instrument of human rights protection, call for an interpretation and application of its provisions so as to ensure practical and effective protection to those subject to the High Contracting Parties’ jurisdiction."

Based on this, the Court concludes, in the very succinct decision, the following (and I am citing it here in full):

"1. The Russian Federation ceases to be a High Contracting Party to the Convention on 16 September 2022.

2. The Court remains competent to deal with applications directed against the Russian Federation in relation to acts or omissions capable of constituting a violation of the Convention provided that they occurred until 16 September 2022.

3. The suspension of the examination of all applications against the Russian Federation pursuant to the decision of the President of the Court of 16 March 2022 is lifted with immediate effect.

4. The present Resolution is without prejudice to the consideration of any legal issue, related to the consequences of the cessation of the Russian Federation’s membership to the Council of Europe, which may arise in the exercise by the Court of its competence under the Convention to consider cases brought before it."

One may infer a number of matters from this. The first is that the Court found, like many commentators did earlier, that the crucial date was 16 March: the day on which the Committee of Ministers decided on the cessation of Russia's membership of the Council of Europe under Article 8 of the Council's Statute. Russia's own attempt to leave before being thrown out, by way of a notification of withdrawal the day before is thus not found to be crucial in this respect. 

Secondly, the Court applies the 6-month period mentioned under Article 58 ECHR under its first paragraph (about denunciation) also to this case of expulsion from the Council of Europe. The ECHR thus continues to apply for half a year, clearly with the intent of offering the protection of the rights in the Convention for as long as possible to those falling within Russia's jurisdiction. Here, the 'practical and effective' principle thus - and very logically so for a human rights treaty - points to the exact opposite direction than the logic of treaty (and membership of the international organization of the Council of Europe) cessation. The effect of immediate cessation of ECHR protection would after all not serve as a sanction for Russia but as direct loss for victims of human rights protection. There will thus be six more months of protective ECHR scope, to whatever degree that may make any difference (but the chance of it is already worth it) in practice.

Thirdly, the (temporary) suspension of dealing with pending applications, decided on last week, is reversed with this decision: the Court will thus right away continue to deal with all the cases before it relating to Russia.

Fourthly, the Court indicates that all of this is "without prejudice" to legal issues arising in the coming time. Indeed, many questions of course still remain unanswered: what will be the role and presence of the recently elected judge in respect of the Russian Federation? Will Russia participate in proceedings at all, even if it is allowed to? 

One issue appears to be (at least formally) decided: what happens in the Committee of Ministers in relation to the execution of judgments? Today, the  Committee takes note of the Court's decision and as a result confirms Russia remains bound until 16 September and the Committee "will continue to supervise the execution of the judgments and friendly settlements concerned and the Russian Federation is required to implement them. The Russian Federation is to continue to participate in the meetings of the Committee of Ministers when the latter supervises the execution of judgments with a view to providing and receiving information concerning the judgments where it is the respondent or applicant State, without the right to participate in the adoption of decisions by the Committee nor to vote" (para. 7 of today's Resolution) . For what it's worth, one may add, as this setup will decrease any prospects of cooperation by Russia to nearly zero. But the Committee probably saw no other way (legally and politically) than to decide in this way.

Thus, it is pretty certain that more Court decisions of this kind could follow with more clarifications as the Court will try to navigate this legal minefield. For the ongoing conflict in Ukraine and for recent repressive measure taken within Russia itself, this means at least that for the coming time these can and will still be assessed from a human rights perspective. Put differently: until this Autumn, Russia is still bound by the ECHR.