Transcript Promoting Public Interest

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
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History of the Russian Federation accession to the
Council of Europe
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Quality of implementation of the Convention by
Russian courts
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Dualistic Heritage
Political accession
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
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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 caselaw 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 caselaw, rather than the Courts’ own initiative
 Interdependence between persistent
applicants’ arguments based on ECHR caselaw 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:
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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
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Judges lack knowledge and experience in
implementaion of international law. However, the
more judges face arguments based on ECHR caselaw, the more likely they will implement it.
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Incorrect understanding of the phenomenon of
precedent.
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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.
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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
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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
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‘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
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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
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Teach what we have learned and experienced
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at special trainings
at universities (mostly private)
Publish
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newspaper and law-journal articles
Books
Conduct PR-campaigns
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press-releases
press-conferences
round tables
Conferences
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Create web-site “Learning How to Apply the Convention”
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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),
www.sutyajnik.ru/bal/ibidem