Mikhail Fedotov: ‘An independent court is a good thing―but double-edged’
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3 June 2022

Mikhail Fedotov, a lawyer and laureate of the Moscow Helsinki Group human rights prize, talks about how Russia could create a supranational human rights body to replace the ECtHR in conversation with Aleksandr Zhelenin.

Source: Moscow Helsinki Group [original source: Росбалт]

The Association of Lawyers of Russia (ALRF) has started work on creating a new court for the protection of human rights, as an alternative to the European Court of Human Rights (ECtHR). ALRF Chair Sergei Stepashin has just made an announcement to this effect, speaking at a meeting of the ALRF’s Presidium and Board held in the Russian Ministry of Justice.

‘We have set in motion the mechanism for creating a working group,’ Stepashin said. ‘We already have the support of the law enforcement agencies and the Presidential Administration … We have prepared a report on the serious business of creating an alternative court for the protection of human rights.’

We should remind readers that in March of this year, Russia ceased to be a member of the Council of Europe. That led to the country’s automatic departure from the Parliamentary Assembly of the Council of Europe (PACE), and the end of cooperation with the European Court of Human Rights (ECtHR).

Rosbalt discussed the idea of creating a new judicial body with Professor Mikhail Fedotov, the long-time Chair of the Presidential Council for the Development of Civil Society and Human Rights and current head of the UNESCO faculty at the Higher School of Economics.

— What is your reaction to the news that a kind of ‘domestic’ alternative to the European Court of Human Rights is being created in the Russian Federation? Sergei Stepashin has put forward specific ideas: the court could be set up as a BRICS institution [BRICS being Brazil, Russia, India, China, and South Africa], or by the Commonwealth of Independent States [CIS] or the Eurasian Economic Union [EAEU].

— An organisation like this could not be established by BRICS or the EAEU. These are inter-State associations that do not have their own common conventional framework in the field of human rights. There is no human rights convention in either BRICS or the EAEU. Brazil, for instance, is a party to the American Convention on Human Rights, but for obvious reasons Russia, China, India, and South Africa are not. All these countries are, of course, bound by the 1966 International Covenant on Civil and Political Rights [ICCPR], but dozens of other countries are also party to that. In addition, the UN Human Rights Council oversees observance of the covenant.

I see a way out in the shape of giving life to the CIS Convention on Human Rights and Fundamental Freedoms, adopted in 1995 and in force from 1998. In content, it differs little from the European Convention on Human Rights and Chapter 2 of the Russian Constitution. Granted, as of today, the CIS Convention applies to only four states: Belarus, Kyrgyzstan, Russia, and Tajikistan. Three other countries ― Armenia, Moldova and Georgia ― have signed the Convention but have never ratified it. Tremendous diplomatic efforts could, of course, be made to bring the other CIS member states on board.

— It would be quite something to behold: Modern-day Russia, Belarus, or the likes of Kyrgyzstan engaging with human rights …

— Yes, but I don’t see any other way of implementing the ALRF’s idea quickly enough. Only the CIS has any provision for the creation of an interstate quasi-judicial body―the CIS Commission on Human Rights. A regulatory provision concerning the Commission was approved back in 1993. And there’s the ‘Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States’ [otherwise known as the ‘CIS Convention’] that could become an act of international law of its own kind. The CIS Commission on Human Rights could use it to audit the actions of the governments of the respective countries.

The one tiny thing that remains to be done is to set up the CIS Commission on Human Rights. And there’s the snag: in the three decades since the regulation providing for the CIS Commission on Human Rights was approved, the Commission has not been set up.

— Do you believe it will be?

— To be honest, I don’t really believe that even those countries which have ratified the Convention will actually want to see the creation of such an institution.

— Well, they might create it, but how it would function is another matter.

— I believe that such an institution, if established, would find it very difficult to carry out its work. The members of a quasi-judicial body such as this should be independent of their national authorities. But do the authorities of these countries want independent judges? I don’t think so.

— That feels like the key question.

— How, for example, would the Belarusian President Alexander Lukashenko react to a decision of the CIS Commission on Human Rights that the Belarusian authorities had violated the CIS Convention in a particular case? The fact that the CIS Commission on Human Rights has not been created in the last 25 years suggests that the countries who have signed the Convention are in no hurry to ratify it, and those who have ratified it are not exactly hankering after the creation of a quasi-judicial body to oversee its observance.

— Yes but it does look like they’re getting down to it now. It didn’t escape my notice, though, that when he was when talking about the creation of a Russian analogue of the ECtHR, the first thing Sergei Stepashin said was that the idea has the support of the law enforcement agencies. It seems like that’s the key thing for him.

— I think that if the CIS Commission on Human Rights is guided in its consideration of complaints about human rights violations solely by the provisions of the Convention rather than by ‘telephone law’, they’ll achieve nothing beyond irritating the law enforcement agencies. And not only them. As soon as real cases begin to be considered, it will quickly become clear that the institution is either too inconvenient for the authorities, or too dependent on them. An independent judicial institution is a good thing ― but double-edged.

— Frankly, it’s doubtful that the authorities are particularly eager to create any independent judicial institution, let alone a supranational one.

— Well, if the authorities of the four countries participating in the CIS Convention were to say, ‘OK, human rights are universal and we must respect them regardless of state borders’, the question would then be ― so what was the problem with the European Convention on Human Rights? It would be perfectly possible to observe that in the same way ― as Russia did, for more than 25 years.

Translated by Richard Coombes

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