This imminent
departure which will very likely happen within weeks will have significant
impact on the European Convention on Human Rights (ECHR) system. Russia is by
far the biggest ‘client’ of the European Court of Human Rights (ECtHR). In 2021,
the Court delivered 21% of its
judgments against Russia which is only one of 47 contracting parties to the
ECHR. In the following short note, I will try to consider what is going to
happen with the ECtHR with the eventual departure of Russia.
New applications
against Russia
According to
Article 58 ECHR the state which departs from the Council of Europe also ceases
to be a Party to the Convention. So, as soon as the membership of Russia is
terminated, the ECtHR will have no jurisdiction over the territory of Russia as
well as on other territories under its effective control (for example,
Transdniestria in Moldova). The Court will declare inadmissible all
applications that complain against violations that have taken place after the
termination of membership. Technically some admissible applications can reach
the Court years after the moment of termination. For example, if the act of
torture happened today, the applicant will have to exhaust all domestic
remedies in Russia and then apply to the Court. Even if the violation happened
on 11 March 2022, the application itself might have to be submitted years from
now. Pursuant to Article 8 of the Statute of the Council of Europe, this
precise moment of termination of membership will be determined by Committee of
Ministers.
The fate of new
applications submitted after the termination of membership is pretty clear and
uncontroversial although unfortunate for the victims of human rights violations
both in Russia and on the territories under their effective control. Of course,
the citizens of Russia will still be able to bring complaints before the Court if
their rights are allegedly violated by any of 46 remaining Contracting Parties
to the Convention.
Pending
applications
Currently there
are 13,645
pending applications against Russia. There is more than a dozen of
inter-state applications most of them were brought by Ukraine after the
conflict with Russia in 2014. According to Article 58 ECHR the departure from
the Convention does not release a member state from the obligations under the Convention.
So, all applications submitted against Russia before the termination of
membership can be considered by the Court and judgments can be delivered.
However, a few practical issues will remain in the event of Russia’s departure from
the Council of Europe in a non-amicable way (which seem more likely). First and
foremost, what is the value of these judgments. Some major inter-state cases
might have some symbolic value but hundreds of although personally significant
but trivial violations will have no impact on the country which is outside of
the Council of Europe. It is almost certain that the Russian Federation will
stop all diplomatic collaboration with the Council and the judgments would not
be executed. Second, there are a few more technical issues. The judge elected
in respect of Russia will have to sit in all Chamber and Grand Chamber cases in
which Russia is a respondent state. Arguably, after the denunciation of the
Convention the Russian judge will depart from Strasbourg. The current judge
might be able to act as an ad hoc judge for the Russian cases but it can be
politically inappropriate. Appointing of any other ad hoc judge although not
strictly speaking against the wording of the ECHR but probably against its
spirit. Here, the Court would have to improvise which might be problematic from
the point of view of legitimacy of the Court. Thirdly, the respondent state
authorities are active participants in the proceedings in Strasbourg – the
governments are expected to submit their explanations to the alleged violations,
at least to some extent the process is adversarial. It is very hard to suggest
that the Russian authorities will collaborate with the ECtHR in any shape or
form. The absence of the Russian government would undermine the legitimacy of
judgments delivered against Russia.
So, what can be
done? The Court cannot declare all pending cases against Russia inadmissible as
Article 58 clearly prevents it from doing that. I see two main ways of dealing with
these cases or some combination between these two. First and most likely, the
Court will freeze all the pending Russian cases until better times. If Russia
decides to reapply it might be conditional for its readmission to swiftly deal
with all pending applications. This would make much less sense if Russia
reapplies in 40-50 years but if the change of hearts happens within a decade –
that might be appropriate. The main significant drawback here is that plenty of
applicants will be left in a limbo with pending cases but without any judicial determination.
Second, the Court would improvise and continue dealing with the cases from
Russia. The Contracting Parties can even draft changes to the Convention to
accommodate this complex situation and ensure that the lack of collaboration
and absence of the national judge do not obstruct the Court’s proceedings. This
is problematic as this process will undoubtedly be consuming a lot of Court’s
resources when funding is likely to be reduced. Moreover, if the Russian authorities
bother to comment at all they would argue that these trials in absentia would undermine the fair
trial standards. Finally, the Court would be delivering judgments which have no
impact on the perpetrator.
As I mentioned,
the Court might choose to resort to a combination of these two approaches. For
instance, the Court might get rid of clearly inadmissible applications – the
participation of the national judge is not necessary in these cases and there
will be plenty of Russian lawyers in the Court’s Registry during the transition
who can deal with these cases. The Court might want to deal with inter-state
cases as a symbolic gesture and freeze all other individual applications.
Execution of
judgments
There are about 2000 judgments
pending execution by the Russian Federation. It is unlikely to expect that the
Russian authorities will continue collaboration with the Committee of Ministers
regarding execution of said judgments. So, neither monetary
compensation nor other individual and general measures will be enforced.
The Committee of Ministers generally has very little power to implement the
judgment but this power is reduced to zero if the state is outside the Council
of Europe. Here, the Committee will have to either completely stop execution of
all cases or freeze them. The latter is much more likely.
Personnel
There are plenty
of Russian lawyers who work at the ECtHR registry. Some of them are on
temporary contracts, so they will not be extended but there is a vast number of
lawyers from Russia who work on a permanent basis in Strasbourg. These
permanently contracted lawyers who are only citizens of Russia will probably be
let go because only citizens of the member states can be employed by the
Council. However, there is a proportion of lawyers who have dual citizenship.
In their respect a specific decision must be taken. It is possible to argue
that they will have to leave the Court after a transitional period due to the significant
restructuring of the Court however this will have to be decided by the
statutory bodies of the Council.
Conclusion
There is very little point beyond merely symbolic for the ECtHR to continue dealing with Russian cases. Its impact on the departed country will be extremely limited. This will help the Court to sort out its old problem of backlog but this is not an optimal solution at all. I have argued elsewhere that suspension of Russia from the Council of Europe is a correct solution in the circumstances but this does not come without a cost. This cost is inability to protect victims of human rights in Russia. Having said that, Russia can re-join the Council. In the 60-s it took Greece four years to return, I hope that Russia will take even less.
*I am grateful to Drs Andrew Forde and Kushtrim Istrefi for their insightful comments on the earlier draft of this comment. All errors are mine.
