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.
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.
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.
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.