Legal Experts

15 June 2022

by Ilya Shablinsky, legal expert and member of the Moscow Helsinki Group

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

On 11 June a law came into force according to which the Russian Federation ceases to execute the rulings of the European Court of Human Rights – withdrawing from its jurisdiction. Judgments of the ECtHR henceforth cease to be grounds for reviewing decisions by Russian courts. This is probably more convenient for the State, i.e. the mechanism of bureaucratic power, the hierarchy of officials. At the same time, the mechanism of protecting the rights of citizens (including officials) has received a serious blow. One of the main problems of our system of government is the dependence of judges on their superiors. On the executive power, to be more precise, on the power of the ‘siloviki’ [the leading law enforcement, security and military officials – ed]. It is here that the main peculiarity of the European Court of Human Rights lies. It is truly independent from the national authorities – be it the authorities of Romania, Poland, Ukraine or Turkey. Or Russia. These are the countries from which most of the applications to the Court have come.

I am reading how one of our very important officials is outraged by the ECtHR’s decision on the right of citizens to same-sex marriages. It is convenient for him to refer to this decision, although his outrage is insincere. Yes, the European Court cares about the rights of all minorities. But the vast majority of its decisions on complaints from Russia concern torture and torturous conditions in our prisons and colonies. Almost 80 per cent of Russian applications to the ECtHR have been related to this topic. Although, of course, there have also been complaints about defamation, criminal convictions, compensation for damage caused by the State to a citizen, freedom of speech and the media, the right to do business, and so forth. We could find the whole catalogue of rights that are set out in the second chapter of our Constitution in the judgments of the European Court of Human Rights.

A separate issue is protection against wrongful use of pre-trial detention. The European Court has issued several rulings on applications from Russia about the fact that courts almost always rule in favour of investigators and remand suspects in custody. The courts always use a standard set of justifications for remanding a person in custody taken from an article of the Code of Criminal Procedure.

One of the most acute problems is the pressure exerted by this use of pre-trial detention on businesspeople. Another even more vulnerable category is that of citizens the authorities perceive as political opponents. It is usually a matter of these citizens expressing views at variance with one or another of the positions taken by the State. The ECtHR has always taken the position that a State, which calls itself a rule-of-law State, cannot forbid citizens to criticise government policy, let alone put them behind bars for expressing their views. However, we are leaving the jurisdiction of the ECtHR and, alas, we are moving away from its standards.

Here is one of the most recent examples: a municipal district council member from Moscow, Aleksei Gorinov, told other council members about his personal opinion about the situation in Ukraine. Now he is behind bars. What were the reasons for remanding him in custody? The court could have taken into account the fact that the councillor suffers from a severe lung disease and needs special treatment. But predictably it did not. And Gorinov is not receiving any treatment.

Taking into account such court practice, can we count on there being any national body to protect human rights? This is a rhetorical question.

Here one may also recall the standards of the European Court of Human Rights in establishing the amounts of compensation in respect of material and moral damage. If the ECtHR finds the State at fault (which it does not always do), the amounts are quite substantial. For example, in cases where the jailing of a person for an offence under administrative law was found to be unlawful, the compensation ranged from 5,000 to 12,000 euros. Sometimes the amounts were even higher. In particular, the European Court of Human Rights awarded compensation of 360,000 euros to 39 victims of the terrorist attack in Beslan in 2004 and their relatives. This is not the first judgment on applications made by those who were hostages and their relatives. In 2017, the Strasbourg Court ruled that the Russian government should pay 409 applicants more than 3 million euros. Yes, the European Court found our State responsible for errors in the hostage rescue operation and for ineffective investigation of what happened. This was exactly what the victims had complained about. And I can imagine that someone is very sorry that the state budget incurred such expenses. But let them say this to the faces of the three hundred mothers from Ossetia who lost their children.

But what decisions are taken in such cases by our courts? One does not have to go far to find an example. Here is one of the recent cassation rulings of the Russian Supreme Court issued in May this year with respect to a decision by lower courts that found (it should be stressed) that the applicant was in the right. He was serving a term in a penal colony and complained, citing specific facts, about the lack of ventilation in the cells, insufficient heating and lighting, extremely poor food, and so forth. All things that are well known. A court ruled his complaint was well-founded, which is extremely rare, and awarded compensation of 5,000 roubles! The court of cassation increased the award to 35,000 roubles. Yes, the Supreme Court, in its convoluted ruling, seems to have acknowledged that this amount was not quite appropriate either. But it did not state this clearly in its ruling.

So there you have it. And we have left the jurisdiction of the European Court of Human Rights. And some officials (who perhaps have forgotten that the future is wholly unpredictable) may be rejoicing.

Translated by Rights in Russia