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 ( ) 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 Campaign Final 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

The Impact of the Convention on Russian Law For more details on the domestic application of the Convention by Russian Courts, refer to Anton Burkov, The Impact of the European Convention on Human Rights on Russian Law (Stuttgart: ibidem-Verlag, 2007),