20 March 2022
Leonid Nikitinsky in conversation with Karinna Moskalenko
The European Court will continue to consider applications by Russians that have already been received and if the Russian Federation ignores its procedures, it will only make things worse for itself
Karina Moskalenko is a member of the Moscow Helsinki Group and a well-known Moscow lawyer. She began working with UN structures and then with the European Court of Human Rights [ECtHR] in the early 1990s at a time when no one yet knew what it was. Despite the withdrawal of the Russian Federation from the Council of Europe, she is not going to stop working. Karinna Moskalenko talked with Novaya gazeta columnist Leonid Nikitinsky.
– We know you’re in Geneva at the moment – working with the UN Commissioner for Human Rights, but you know what’s going on in Strasbourg, don’t you?
– Yes, we have been preparing a report on the observance of human rights in Belarus for the UN Commissioner and I am now discussing some issues relating to the future of Russia. But our office in Strasbourg is still working and we are constantly in touch with them. But nothing can be said for sure yet, everyone has taken a pause until next week. Many questions remain unresolved, including even the question of whether Russia left the Council of Europe on its own initiative or was expelled by the Committee of Ministers: these two decisions were taken almost simultaneously, competing against each other.
– Let’s agree that this is an interim interview, because it is very important for our readers to know what is going on there anyway. To what extent will the fate of applications to the ECtHR from Russia depend on how its withdrawal is formalised?
– First of all, it must be said that there have been no precedents for a ‘bad-tempered’ divorce from the Council of Europe since its creation, and all the relevant decisions are being taken for the first time.
The Convention for the Protection of Human Rights and Fundamental Freedoms prescribes the procedure for its denunciation, but it was used only once, when Greece left the Council of Europe in 1969 under the rule of the so-called Black Colonels. But in 1974 Greece already asked to be allowed back and was accepted. So far the Council of Europe structures have adopted a formula that the legal and financial consequences of Russia’s withdrawal should be resolved at the level of the Committee of Ministers. If other questions arise with regard to applications to the ECtHR, they should be decided by the Court itself, since only the Court can set legal precedents.
In any case, an interpretation of Article 58 of the Convention is required, where not everything is clear. Paragraph 1 says: ‘A High Contracting Party may denounce the present Convention only after the expiry of five years from the date on which it became a party to it and after six months’ notice contained in a notification addressed to the Secretary General of the Council of Europe, who shall inform the other High Contracting Parties.’ In that case, Russians (and not only) would have a right to apply to the ECtHR for any violation of their rights committed by the Russian State authorities before 15 September 2022, because Paragraph 2 of Article 58 reads: ‘Such a denunciation shall not have the effect of releasing the High Contracting Party concerned from its obligations under this Convention in respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became effective.’
But there is also paragraph 3: ‘Any High Contracting Party which shall cease to be a member of the Council of Europe shall cease to be a Party to this Convention under the same conditions.’ In my opinion, this is just a statement of the fact that ratification of the Convention and membership in the Council of Europe amount to one and the same thing, i.e. these are not what a passionate statement by the Russian Foreign Ministry called ‘our own conditions’ for Russia to withdraw from the Council of Europe. The applications by Russians, which have already been submitted, must in any case be examined by the ECtHR and either rejected as inadmissible or communicated.
The ECtHR documents often use the formula ‘the best legal solution’. I think that such a solution would be the termination of the membership of the Russian Federation in the Council of Europe in accordance with Article 58 of the Convention not earlier than 15 September.
– The best solution for whom?
– The best in terms of human rights in Russia, of course. The ECtHR, to put it mildly, is not very interested in this. Right now, it seems that 17,000 applications from Russia are pending (I haves seen this figure in the media, I can’t vouch for the accuracy, but it’s of that kind of order). In order to consider them the judges would have to deal exclusively with them for more than a year. Meanwhile, Russia, as we guess, may refuse to pay its annual dues, that is, to bear the costs of maintaining, among other things, its own judge and staff, and then these will have to be maintained at the expense of other member countries. That’s rather much, isn’t? The ECtHR would only sigh in relief if this weight was taken off them. But I personally will lobby as hard as I can (and the Council of Europe does listen to human rights activists) for the deadline for Russians to apply to the ECtHR to be extended to 15 September.
– Doesn’t Russia’s expulsion from the Council of Europe mean the automatic recall of its judge from the Russian Federation?
– This is another question that lacks a precise answer so far. Under the charter, all applications against the Russian Federation are supposed to be examined by judges who include a Russian judge. Mikhail Lobov, who before this worked in the structures of the Council of Europe, was confirmed as just such a judge quite recently, last October. He must either be kept on, but only to participate in cases against Russia, or reappointed each time — and we don’t know exactly how many such cases there will be — as a judge ad hoc. There could be a boycott, of course, but that might perhaps end up costing more.
Where there are judges there are also aides, a secretary, a typist, translators, staff. Their wages are to a significant extent paid for out of member states’ annual dues, but out of the general fund, that is, not individualized. In the early 2010s, Russia sent 20 of its so-called seconds, that is, judges attached, judges proposed by Russia as probationers, to the ECtHR for whom Russia paid separately. Behind their backs they were called the Sonderkommando. Some people felt they tried to bury cases against Russia. That is why the depersonalized procedure is used. If a country pays directly, then the staff is going to work for that country, not for the general cause of defending human rights. True, later some of the seconds were selected by the ECtHR and now work on regular terms.
– I wonder how they’re feeling right now?
– Well, it’s not as though we had any informal ties to them. We’re an organization of lawyers, after all, and they’re the Court.
But I think the situation there is nervous. They have total uncertainty, but it’s still a good job, go try and find one like it back home.
– You said that cases against Russia that have already come to the ECtHR are subject to examination, that is, the question of their admissibility or nonadmissibility has yet to be decided. As we know, this assumes the process of ‘communication,’ in the course of which the Russian government, basically the General Prosecutor’s Office (previously the Justice Ministry did this), presents its objections to the application. But if Russia has left the Council of Europe, and did so with that much fuss, the General Prosecutor’s Office simply isn’t going to respond.
– Oh, that would substantially simplify the ECtHR’s work! According to the rules of adversarial procedure, if one side fails to respond to an application, it means that it agrees with its arguments. The same holds for the participation of a Russian judge. True, Russia can stop paying the compensation fixed by the court. Up until now, though, at least, Russia has done so regularly. But for those who appeal here, you see, this is more a matter of principle.
– You mean you aren’t planning to shut down your office in Strasbourg? You’re still going to have a job?
– For five or ten years definitely. Moreover, there is the UN Human Rights Committee, which is a quasi-judicial rather than consultatiave organ, not to be confused with the UN Human Rights Council, which falls under the General Assembly. To a certain degree, the UN’s Human Rights Commitee can take the place of the ECtHR for Russian citizens. We’re prepared to help our fellow citizens send their complaints about human rights violations in Russia there. We are patriots of our country, and we have experience. We have won quite a few cases at the UN Human Rights Council, including the case concerning Dmitry Kholodov’s right to life, which we brought on behalf of his parents.
– As far as I remember, the UN doesn’t have any mechanisms for compelling Russia to carry out the decisions of this Human Rights Committee, does it?
– And yet Russia has immediately rushed to carry out the ECtHR’s decisions! Nonetheless, the UN Human Rights Committee is somewhat more serious than the Russian Presidential Council on Civil Society and Human Rights, no offence. I know you left that Council, and maybe in vain: we should be fighting for human rights on all fronts. At the present time, a ‘follow-up’ procedure has been created at the UN, to make sure a member state of the UN’s treaty organ (and we have been a participant in this procedure since 1992) is carrying out its decisions. After this there are various possibilities, up to and including bringing the question up for discussion by the General Assembly. And, who knows, maybeRussia will return to Europe again, the way Greece did.
– Thank you, Karinna, until next week then. Wishing you all success.
– Let us serve Russia!