Legal Experts

16 March 2022

by Ekaterina Trifonova

Source: Moscow Helsinki Group [original source: Независимая газета]

On 16 March Russia was expelled from the Council of Europe. Russian citizens will lose the opportunity to defend their interests at the European Court of Human Rights (EtCHR). Some experts call this a ‘legal catastrophe,’ others argue that in recent times the opinions of the Court in Strasbourg have had little impact on our justice system. The question on everyone’s mind is whether Russians will be offered anything instead of the ECtHR. Nezavisimaya gazeta has found out that most likely this will remain something about which we can only dream.

According to the rules of the Council of Europe, the decision will not come into effect any earlier than 2023. Until then, Strasbourg will continue to accept applications from Russians. Many human rights defenders and lawyers have decided to file as many applications as possible to make sure they have work ‘for the next few years.’

Meanwhile, experts say that the judgments of the ECtHR have been a crucial guide, without which human rights in Russia would begin to degenerate. The situation could worsen for Russians who have suffered torture, prolonged detention, and unfair trials. ‘I am saddened by the news of Russia’s withdrawal from the Council of Europe; we lose a great deal by this,’ Ilya Shablinsky, a member of the Moscow Helsinki Group (MHG), told Nezavisimaya gazeta. Over the past few years, the Constitutional and Supreme Courts have repeatedly cited the judgments of the ECtHR, treating them as a kind of standard, and ‘the meaning was the same – giving the priority to human rights and freedoms.’

Shablinsky is sure that our authorities will not offer an alternative to the ECtHR, except for purely rhetorical words and attitudes. ‘Yes, there will be positive decisions for the sake of a show, which may come as a surprise against the general background,’ he admits. For example, the other day the Supreme Court forbade the lower courts to reduce the amount of compensation owing in order to save on the state budget. The Supreme Court reversed a decision made on appeal, which had reduced compensation for two years of illegal prosecution tenfold from 500,000 to 50,000 roubles. It’s no secret that judges are trying to prevent the unjust enrichment of victims, because “the treasury is getting empty and draws its money from taxes.” The Supreme Court expressed its opinion on this matter: ‘Compensation for moral damage is not a compensation for material losses and therefore cannot be regarded as enrichment”.’

However, according to Shablinsky, all this is just for show. Recently, he points out, there has also been a string of court decisions in favour of citizens suing insurance companies. ‘But none of this ever developed into a trend! Nothing, in fact, changed.’ Any explanations from above will for the most part continue to be ignored lower down. And that’s because the courts are ‘just an appendage to those in power,’ he stressed. He recalled that the idea of creating a Russian analogue of the ECtHR had been voiced earlier but had come to nothing because of inconsistencies. After all, if this were done, the authorities would have to recognise the ineffectiveness and bias of the domestic courts at present. And what would be the point of creating a special court in the country, if human rights should a priori be protected by the ordinary courts of general jurisdiction? In fact, says Shablinsky, ‘the overall situation is deteriorating, the courts are becoming increasingly dependent on the law enforcement agencies, carrying out their orders, and have effectively ceased performing the function of a justice system.’

‘The possibility of appealling to an international judicial body requires at the least that a case has been appealed at every level of the domestic courts, whose position often consists of formally rejecting the arguments of applicants,’ says Aleksandr Inoyadov, head of criminal justice practice at BMS Law Firm. For many years, he argues, the practice of the ECtHR had a significant influence on the enforcement of law in our country in terms of identifying and evaluating violations of rights and fundamental freedoms. The effectiveness of the institution was shown in that its judgments were taken into account by the Constitutional Court. According to Inoyadov, ‘It is obvious that no other national judicial body capable of effectively exposing violations or protecting human rights and freedoms has been established in our country. And in the absence of a form of oversight of the courts independent of the state, many of the accepted rights and freedoms specified in the European Convention on Human Rights will remain declarative.

‘Withdrawal from the ECtHR marks the biggest disaster for Russia’s domestic jurisprudence in the XXI century,’ says Anton Ryzhov, an expert on working with the ECtHR. He also says that the problem is not even that thousands of Russians, starting with the prisoners and ending with defrauded apartment purchasers, will be deprived of the opportunity to seek justice at the international court. The problem is more serious: will our withdrawal from the Council of Europe be followed by a return to the past and a rejection of the initiatives launched following on precedents established by the ECtHR? Wont’ the authorities also repeasl our law codes, legislation and reforms, which are imbued with the guidelines of the Strasbourg Court? Lawyers must hurry up and file those applications with the ECtHR by the end of the year that are being written now, or are awaiting judgment in the highest Russian courts. The ECtHR will still be able to consider them. But how rulings by the European Court will be executed is another question. Ryzhov thinks it will be necessary to restructure the work in the direction of the UN human rights treaty bodies (the Human Rights Committee, the Committee Against Torture, and others). In this regard, we can study the experience of lawyers in Central Asian countries which for many years have had only this possiblity. ‘As for reliance on the Convention and precedents of the ECtHR in Russian courts, I believe we can use the wording of Article 15, Part 4, of the Russian Constitution which gives priority not only to Russia’s international treaties but also to the generally recognized principles and norms of international law,’ Ryzhov believes. ‘In this way the denunciation of the European Convention, which will remain in force in 46 European countries, will continue to have effect and it will continue to be possible to cite it in domestic courts.’

There are also opposing views, specifically that in current circumstances Russia’s withdrawal from the Council of Europe will not affect the protection of the rights and legitimate interests of Russians. Lawyer Aleksei Gavrishev told Nezavisimaya gazeta that essentially the inability to appeal to the ECtHR is the logical conclusion of those disagreements and processes that have long existed between Russia and Europe. The return of the death penalty, Gavrishev stresses, is certainly not the best consequence of this decision but he himself is certain that ‘aggravating’ consequences will not be introduced into law enforcement practice. ‘Based on the practice of recent years, the courts of cassation, the Supreme Court and the Constitutional Court of the Russian Federation are the most effective tools, similar in significance to the ECtHR and therefore I am confident that they will cope with the tasks at hand. I am sure that the amount of compensation paid out will continue to grow and the development of such practice will lead to the level of compensation corresponding to the damage caused,’ Gavrishev told Nezavisimaya gazeta.

The chair of the Foundation for Protection of Investors’ Rights in Foreign Countries, Yaroslav Bogdanov, thinks Russia’s exit from the Council of Europe is ‘another sign of the rapid obsolescence and degradation of the norms of international law and the need to create new institutions more appropriate for modern realities. ‘In this respect, Russia’s exit from the ECtHR may really become an opportunity for ‘import substitution’ – development of new, modern, effective norms and institutions which in the future can become part of international law.’ For example, everything connected with the digital sphere is either poorly regulated or not regulated at all. And there is a need for both digital arbitration and a global digital alliance, created on the model of the United Nations to regulate and enshrine the ‘rules of the game’ in this sphere.

The ECtHR is best described as an ‘extraordinary’ court to which appeals can be made against decisions handed down by Russian courts, says Natalya Skryabina, a member of the Association of Russian Lawyers. She noted that the Russian Ministry of Foreign Affairs specified that Russia will continue to execute the judgments of the ECtHR if they do not contradict the Constitution. However, Skyabina pointed out that implementation of the judgments of the ECtHR in the Russian Federation is relatively low, so ‘appealing to the ECtHR in itself does not guarantee anything in itself.’ The Russian judicial system provides for multi-level appeals against court decisions to the higher courts: an appeal, two cassations, supervision, and review on the grounds of new or newly discovered evidence. ‘Such a hierarchical system implies that in the end the higher court will render not only a lawful but also a just decision,’ she explained.

Vadim Tkachenko, the founder and CEO of the vvCube consulting group, told Nezavisimay gazeta that although there is no equivalent of the ECtHR in Russia, this does not mean that national institutions cannot be a tool for checking the well-foundedness of court judgments in relation to citizens or provide for the protection of the full range of human rights. Although, of course, there is the question of their objectivity and independence ‘from the vertical interaction of personnel within the judicial system.’ In his opinion, the very withdrawal of the Russian Federation from the Council of Europe was predetermined. Many one-sided rulings had been made against Russia long before 2014 and have since become common practice. ‘The Supreme Court as a supervisory instance and the Constitutional Court can fill the gap made by withdrawal from the ECtHR in developing a new approach to human rights protection. One can also hope for supranational institutions within the framework of the Eurasian Economic Union, the Commonwealth of Independent States or the Union State of Russia and Belarus to play a positive role,’ Tkachenko said.

Translated by Simon Cosgrove