Domestic Application of the European Convention on Human Rights in Russian Courts - the Role of NGOs...
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Transcript of Domestic Application of the European Convention on Human Rights in Russian Courts - the Role of NGOs...
Domestic Application of the European Convention on Human Rights in Russian Courts - the Role of NGOs
Presented by Anton Burkov
Statement of High Court Chief Justice Ivan Ovcharuk
“No, we do not hold any special trainings on the Convention. What sort of training does one need in order to honour the provisions of Article 6 [of the Convention]? All you need is to follow the national legislation.”
(From an online press-conference “Judge Shall Know Everything”)
Outline
History of the Russian Federation accession to the Council of Europe Dualistic Heritage Political accession
Quality of implementation of the Convention by Russian courts Status of the Convention in the Russian legal system Judicial practice of Convention implementation
Role of Russian NGOs
Political Accession to the Council of Europe
Council of Europe Russian Ministry for Foreign Affairs
Same conclusion
The legal order of the Russian Federation does not meet the Council of Europe standards
Consequences of Political Accession
Scholar’s prediction: “Given Russia’s lack of experience in protecting human rights, it is likely that a great many violations of human rights will be committed there, and that they will not be remedied domestically.” (Mark Janis)
Reality 10 years after accession: Russia is a leading country in number of applications brought before the ECHR – 19,000 applications (21.2 %) against Russia pending out of total 89,600 applications. As a comparison, only 2,350 applications (2.6%) are pending against the UK.
Why Russia Contributes to the ECHR Crisis
Lack of experience in protecting human rights
The concept of international law that existed in the Soviet legal system and the foreign policy of Soviet Union Soviet Union - dualistic country Soviet Union ratified more HRs treaties than
any other country Treaties were never incorporated into the
domestic legal system
Value System Formed During Soviet Time
Chief Justice of the Severdlovsk Oblast Court in charge of his court for 20 years
Chief Justice of the Russian Supreme Court holding his position for 18 years
SINCE 1980s!
SINCE last century!
SINCE Soviet time!
General Understanding of the Convention
CoE understanding: Under Article 1 of the Convention, Russia has undertaken an obligation “to secure to everyone within its jurisdiction the rights and freedoms defined in Section I of the Convention” (“to bring human rights home”)
National understanding: The right to complain to an international body (the right “to write to Strasbourg”)
Council of Europe
"Effective implementation of the Convention at national level is crucial for the operation of the Convention system. In line with its subsidiary character the Convention is intended to be applied first and foremost by the national courts and authorities" (Registrar of the ECHR).
The prerequisite for the Convention to protect human rights in Europe effectively is that states give effect to the Convention in their legal order, in the light of the case-law of the Court (Recommendation by Committee of Ministers Rec(2004)5).
Status of the Convention
Under the Russian Constitution: Russia is a monistic country. The Constitution
provides: “The international treaties signed by the Russian Federation shall be a component part of its legal system” (Article 15)
Under the Russian legislation: No bar to the domestic use of ECHR case-law in
interpreting the Convention (Russia recognises compulsory jurisdiction of the ECHR by ratifying the Convention)
No difference between the Convention and, for example, the Civil Procedure Code
Status of the Convention (cont’d)
Russian legal order is more favourable towards the Convention - “[i]f an international treaty of the Russian Federation stipulates other rules than those stipulated by the statute, the rules of the international treaty shall apply”
Constitution
Convention
Federal laws
Constitutional Court
Established an obligation to give direct domestic effect to decisions of international bodies, including the ECHR (judgment of 2 February 2007).
Importance: Russian lawyers are not accustomed to looking at case-law in order to interpret meaning of statutes. Case-law is not reported.
Supreme Courts’ Regulations
Regulations are explanations of judicial practice issues based on the overview and generalization of lower courts’ and Supreme Courts’ jurisprudence.
They are abstract opinions that are legally binding on all lower courts, summarizing the judicial practice of lower courts and explaining the way a particular provision of the law should be applied.
They CANNOT be considered as case-law
2003 Regulation
Reiterated the Constitution
“Judges should interpret the treaty by taking into account any subsequent practice of a treaty body [ECHR]”
Non-application of ECHR is ground for the quashing of a judgment
Provided a brief overview of ECHR case-law on Articles 3, 5, 6, and 13 of the Convention
Quality of Implementation of the Convention by Supreme Court
Before the 2003 Regulation Out of 3911 judgments ONLY 12 judgments mention the Convention 8 out of 12 judgments contain assessment of
compliance with the Convention Cases contain no reference to ECHR case-law
The situation has not changed after promulgation of the 2003 Regulation
Conclusion: The Supreme Court’s jurisprudence does not invoke the Convention at all
Quality of Implementation of the Convention by Commercial Courts
Out of 38,068 judgments
ONLY 23 mention the Convention
ONLY 8 cite an article of the Convention
In the other 15 cases, the Courts briefly cite arguments of a party based on the Convention, but did not provide assessment of those arguments
Not a single reference to ECHR case-law
Quality of Implementation of the Convention by Constitutional Court (1996-2007)
Before 2004: Out of 166 judgments ONLY 54 judgments cite the Convention ONLY 12 out of these 54 judgments refer to ECHR
case-law In all 12 instances, the entire analysis of ECHR case-
law never occupies more than a paragraph After 2004 the situation has improved
In 50% of the cases the CC started to invoke the Convention
The quality of the Convention implementation has improved
Quality of Implementation of the Convention by District Courts
Rare occasions where the Convention has been implemented were prompted by the applicants’ arguments based on ECHR case-law, rather than the Courts’ own initiative
Interdependence between persistent applicants’ arguments based on ECHR case-law and quality of the Convention’s implementation by the Courts
NGO Observations
Where only the Convention was cited, it has not led to a resolution of a case based on international legal principles
Applicant’s memoranda to courts changed from simple citation of the Convention to comprehensive submission regarding the direct implementation of the Convention and case-law
Messages contained in Court memoranda: The Convention has the status of a federal law The Convention can only be interpreted and implemented
through the prism of ECHR case-law
Unlike the Supreme Court, District Courts have been citing ECHR case-law
Strong Resistance on the Part of Judges
to Invoke the Convention
Judges lack knowledge and experience in implementaion of international law. However, the more judges face arguments based on ECHR case-law, the more likely they will implement it.
Incorrect understanding of the phenomenon of precedent.
Biased consideration of a case: If there is a ‘willingness’ to rule against the defendant, the judges do not notice the case-law on purpose.
A possible ruling on a particular right could result in far reaching consequences for a State body or official as to the lawfulness of their actions.
Lay Judges Issue
Lay judges are common citizens called for judicial duty once a year (max 14 days) to administer justice along with a professional judge (2 lay judges + 1 judge)
In fact they serve on a regular basis (1-2 years!)
Many applicants have unsuccessfully challenged their judgments arguing violation of the right to a fair trial under the Convention
Lay Judges Litigation Campaign
Presidential Decree of 25 January 2000 which, in violation of the Law on Lay Judges extended 14-day term to an indefinite date, was challenged before Supreme Court
In court proceedings, lawyers have pleaded a challenge to lay judges on the ground of a breach of the Convention
All judgments delivered by lay judges were appealed on the same ground
Applicants petitioned the legislative body of the Sverdlovsk region and the Judicial Department at the Supreme Court of the Russian Federation, which were responsible for drafting the list of lay judges
Posokhov v. Russia (ECHR case)
Lay Judges Litigation Campaign Posokhov v. Russia
Posokhov was convicted by lay judges for smuggling vodka
He pleaded inter alia that lay judges cannot consider his case due to expiration of their term
The European Court ruled that the applicant’s case was not decided by “a tribunal established by law” therefore his right to a fair trial was violated and awarded compensation
Lay Judges Litigation Campaign (cont’d)
In Beliaev v. Sverdlovsk Oblast Duma the applicant complained about a violation of his right to a fair trial Argument: All District Courts of the region could not be
considered “tribunals established by law” because they had been composed in breach of the Lay Judges Act
The applicant based his case on Posokhov v. Russia
The original court completely ignored the arguments based on the Posokhov case
The Court of Cassation stated that Beliaev could not invoke the Posokhov case due to the cases were different
Lay Judges Litigation CampaignFinal Success - State v. Parshukov
On 13 July 2005, the Presidium of the Sverdlovsk Oblast Court (court of extra-judicial instance) quashed the lower court decision in State v. Parshukov due to violation of Article 6 of the Convention
This case was similar to Posokhov case – the quashed decision was delivered by a professional judge and two lay judges
Posokhov v. Russia was comprehensively cited
Applying the Convention in Russian Courts: General Observations of Campaigners
“In 1996 neither us, nor anybody else in Russia knew how to apply the Convention.”
Nobody knew ‘where to use it’ ‘how to use it.’
Sutyajnik’s Educational Campaign
Began strategic litigation campaign first by educating themselves
Filing law–suits Each law-suit contained a paragraph on the
Convention Each case memo had a section on the
Convention Each trial speech contained arguments based
on the Convention
Main Reason for Ignoring Arguments Based on the Convention
Judges lack knowledge and experience in implementing the ECHR
However, the more judges face arguments based on ECHR case-law, the more likely they will apply it
Conclusion
Implementation of the Convention by courts is not satisfactory
Disbalance between legislation and jurisprudence
The initiative in implementation of the Convention is on litigators
Other Methods Used in Sutyajnik’s Advocacy Campaign
Teach what we have learned and experienced at special trainings at universities (mostly private)
Publish newspaper and law-journal articles Books
Conduct PR-campaigns press-releases press-conferences round tables Conferences
Create web-site “Learning How to Apply the Convention”
Bring cases to the European Court as a last resort