18 October 2022
Interview with lawyer and Moscow Helsinki Group member Karinna Moskalenko, who talks about how we can live now without the European Court of Human Rights and what alternative we have, by Andrei Karev
Sending Russian troops onto Ukrainian territory led to a sundering of relations with the Council of Europe and, as a consequence, Russia’s exit from the European Human Rights Convention. The European Court of Human Rights [ECtHR] no longer exists for Russia, essentially, and for Russia’s citizens the alternative to the European Court is now the UN Human Rights Committee (HRC). By once ratifying the UN treaties, Russia recognized the procedure for examining appeals to the HRC and agreed to the obligation to carry out the decisions issued.
We spoke with lawyer Karinna Moskalenko in more detail about submitting complaints to the HRC. She was one of the first to start working at the ECtHR, when no one in Russia had any idea why they would appeal to it. Now the lawyer has no intention of ceasing her activities and is confident that sooner or later our country will once again be in the Council of Europe.
— In your opinion, what nonobvious consequences can we observe since Russia stopped implementing ECtHR decisions on 16 March and then ceased to be a party to the Convention on Human Rights?
— There have been very serious consequences: Russian citizens have become less protected. The very possibility of appealing to the ECtHR is guaranteed us in the Constitution. And this right was defended by a great many. We valued and paid tribute to the European Court for the fact that Russians could feel its protection. Popular opinion had it that if it became hard to defend myself in Russia, I’d gather up my documents and go try to prove that I’m right in the ECtHR. Some thought—mistakenly, of course—that they would go prove their innocence. But this is impossible. Unlike courts of domestic jurisdiction, the ECtHR does not rule on innocence in a case. The European Court reacts to complaints if the person was the victim of an unjust trial; if the hearing of the case in court proceeded without ensuring his right to a defence or without ensuring the right to prepare for the trial; and perhaps if the right to call witnesses was violated. And so forth.
On the basis of these kinds of complaints, when the ECtHR recognized a violation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Right to a Just Trial), people gained the opportunity for a review of their case. At the initiative of the chair of the Russian Supreme Court, specific notions were introduced to the presidium of the Russian Supreme Court. Not always successfully, but many times we were able to discuss cases at that high level. You have to admit that this is a fairly effective means of defence. It was like a small island of hope for people.
— Today have we basically lost the right to defend ourselves from unfair trials outside the jurisdiction of the Russian courts?
— In principle, we have lost access to the ECtHR with individual complaints and, as a result, it has become impossible to defend ourselves against an unfair trial. But this is only one of the rights.
We have also lost the right to protection against arbitrary and illegal use of pre-trial detention and the opportunity to defend our right to humane treatment during imprisonment and much more.
— Is the ECtHR going to hear all the complaints it already has, or are there mechanisms that allow for tossing out certain complaints? Is the European court accepting complaints about violations that have occurred since March?
— Yes, they will all be considered. Right now, serious debates are under way in Strasbourg as to how to examine a few thousand potentially acceptable complaints.
— Approximately how many such complaints are left?
— They’ve cited approximately 18,000 unexamined cases. I want to point out that if a complaint was submitted after 15 March and before 15 September (on 16 September last year, Russia ceased to be a party to the Human Rights Convention in connection with its exit from the Council of Europe. —Ed.), then they, too, have to be reviewed by the ECtHR. Complaints can even be submitted in 2023. The Convention’s provisions remain in effect for the Russian Federation until 16 September.
The State cannot instantly leave the Council of Europe, there is also a transitional period. During this six-month period, Russia has to observe the Convention’s requirements. If the violations occurred before 16 September 2022, they can be the subject of review by the ECtHR.
Some of my principals are dropping their complaints because sometimes they don’t see the point of continuing the fight, or their complaint is no longer relevant. But there is another group of applicants who are demanding a review and ask that all means of legal defence be exhausted.
— The Russian authorities have stated that after 15 March they do not intend to implement ECtHR decisions…
— Unfortunately, even before 15 March they weren’t particularly good at implementing them.
– After Russia’s exit from the ECtHR, what alternatives are now available to protect people’s rights in international courts? Do they exist at all?
– Yes, there are, and we are now starting to work actively with the UN Human Rights Committee. This body is very similar to regional human rights bodies. We won our first cases before the HRC.
The HRC is often called a quasi-judicial body, because the procedure there is completely written and there are no hearings, as in the ECtHR, with the parties speaking. Otherwise, it is the same.
In the Committee, there is also an adversarial procedure: the party filing the complaint; the respondent – the state – has the right to reply; the complainants’ side then has the right to object to their statement; if necessary, there follows another round of ‘adversarial documents’ – and only then is a reasoned decision handed down.
In Russia, there is a misconception that the decisions of the HRC are advisory in nature, which means that it is possible not to execute them. That, at least, is what the Russian authorities think. This position is absolutely ridiculous. The Russian authorities believe that if a recommendation is given, it doesn’t have to be implemented. That is, you join a union of states and voluntarily accept the obligation to recognize the competence of this body, but after receiving the decision of the HRC, the authorities decide not to execute it. In their letters, they reply that they appreciate the attention to Russian cases and take into account the recommendations, but Ivanov and Sidorov are guilty, and there’s nothing more to be said. The Russian Supreme Court had already reviewed their case – opened and closed the papers – and also came to the conclusion that guilt had been proven. But the HRC issued a completely different decision, not about the innocence of Ivanov and Sidorov, but that they were victims of an unfair trial.
How come the Russian authorities have such an opinion? The HRC, in addition to its mandate to consider individual complaints, has another important task: to review the human rights situation in each country, and each state submits its own report on this matter. The UN HRC considers these reports and then issues its resolutions with recommendations. And these do indeed have an advisory nature. However, Russia has ratified a protocol recognizing the competence of the HRC to hear and issue judgments on individual complaints. And that means these decisions are now binding.
I studied the history of the ratification of the Covenant, and I realized that this was done by the Russian authorities without a full understanding of the responsibility that taking on the obligations entailed.
The authorities always astonish by their readiness to take part in various matters, forums, signing of documents, and then their unwillingness to fulfil their obligations.
– So it turns out that ratification is on paper only?
– Since the Russian authorities take part in providing the adversarial documents and do not refuse, they submit their objections, and this means they at least give this body some recognition. There is already some interesting evidence that the Russian authorities are beginning to realize that the decisions of those international bodies whose authority they have recognized are binding.
There is also a ruling of the Russian Constitutional Court stating that recognition that a trial has not been fair by the UN HRC constitutes new grounds for a case to be reviewed.
If great numbers of Russians start applying to an international body, then perhaps we can break through this blank wall of incomprehension. Already now the HRC has been confronted with the fact that the number of applications is increasing every day. And there’s already a need to restructure the Committee, something which we are now talking about in Geneva.
When we started winning cases at the ECtHR, the Russian authorities then learned to understand their obligations under the European Convention on Human Rights as a subject of international law. Especially the fact that if they didn’t put things in order and make restitution domestically for the violated rights, then the institutions of international law would get involved.
The decisions of the HRC have all the attributes of a judicial decision and Russia is obliged to implement them. Unlike with the ECtHR, in the judgment they do not indicate a specific amount of compensation for the violation. They simply write: ‘fair compensation it to be paid.’ However, it won’t be superfluous in the application to set out a specific amount of compensation, because in every case what fairness demands is different. Perhaps we should already be talking about the need to develop a way in which the HRC’s rulings should be make clearer and more specific.
– What will happen if Russia does not comply with the decisions of the HRC? Sanctions?
– International organizations do not apply any sanctions. They only have the possibility to use special political forms of influence on a State, which sometimes can be very sensitive.
For example, this was the case with Azerbaijan, when they reached a procedure that put in question their membership in the Council of Europe. After that form of pressure, they released the person from custody.
I think we could have made progress on Russian cases as well through the use of such effective measures. But, alas, that is already history, and we shan’t go back to the Council of Europe. But in the future, we can. We can’t return to the Council of Europe. Sooner or later we’ll have to join all over again. I do not know what form the State will take at that time, but sooner or later that will happen. And at that new stage, compliance with all the decisions of the ECtHR will have to be demanded.
– What is the mechanism for filing an application with the HRC? Is this procedure more complicated than with regard to the ECtHR?
– The mechanism of filing documents and the application itself to the HRC is simpler than with the ECtHR. It is through their website. The time limit for filing an application to the Committee is significantly longer than for the European Court: up to five years from the moment of the violation.
But before filing, it is also necessary to have gone through all the judicial instances. On the site you fill in all the necessary points, clarify whatever they need to have clarified, and the procedure is as simple: they will contact you directly or with your lawyer online.
First, the application will be registered (this may take about a year, except in urgent cases) and they will ask you to clarify what measures the applicant requires to be taken. The final decision on the merits can take up to several years, as was the case with the ECtHR.
– What do you think of the Russian authorities’ proposal to create an alternative to the ECtHR within the framework of the Eurasian Union among the CIS countries?
– I am not moved by such nonsense and they do not give rise to any hopes. Maybe there will be as a showcase some cases to demonstrate how it all works. But I don’t believe in these fairy tales because there is nothing that prevents Russian judges from passing fair and lawful judgments now. Nothing prevents the Supreme Court from correcting violations. Nothing prevents (or has prevented in the past) the Constitutional Court from recognizing the unlawfulness of any legislative acts.
This wasn’t done in the past, it will not be done in the future. In the human rights situation in Russia which we have nowadays, no such ‘international’ judicial body would be effective: I couldn’t see the usefulness [of an alternative court to the ECtHR in the CIS countries] even under a microscope when we are talking about what happens in Russia.
– Is it worth Russian advocates and lawyers referring in their cases to the practice of the ECtHR and the Convention, or other forms of international law? Or will it only make judges angry now?
– Of course it is worth it! If a person argues and wants to get justice, he already irritates the judge, and a reference to the practice of the ECtHR will not change anything. I can advise the those who want to be most precise to refer to similar precedents set by the HRC. As long as we are lawyers and are defending people, we have a peaceful weapon to protect human rights, and of course we’ll use it.
The UN Human Rights Committee (HRC) has been working in our country for over 45 years, since 23 March 1976 when the instruments of ratification of the Covenant on Civil and Political Rights signed by the USSR – the basis of the HRC – entered into force. The Russian Federation, as the legal successor of the USSR, recognizes the competence of the UN Committee to receive and consider communications from persons under its jurisdiction who claim to be victims of violations of the Covenant. The Covenant on Civil and Political Rights is almost identical to the European Convention. This Covenant was signed on 18 March 1968, ratified by the Presidium of the USSR Supreme Soviet on 18 September 1973 and entered into force on 23 March 1976.