Observance of ECHR executions in Russia: from formalism towards human rights approach to effective rights restoration

Pacta sund servanda (“agreements must be kept”) is one of the principles of international law prescribing observance of the international treaties by states.

There is a similar proverb in English – a bargain is a bargain. But the bargain of the countries to comply with the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHRFF), unfortunately, is not a bargain to pay compensation awarded by the European Court on Human Rights (ECHR) to a victim of a state’s violation. Compensations are usually quite big for an applier but are nothing even for a small country. It reminds a situation with fines for traffic violations: even if fines are big, there are drivers who would rather pay them than observe the traffic rules.

It is obvious that such an approach is inaccessible when it is about compliance with human rights – obligations voluntarily taken by state parties. Given the aims and sense of the ECHRFF, the states themselves must be interested in changing domestic situation with human rights, taking all possible measures to prevent violations of rights and freedoms.

International court proceedings allow individual requests and is meant to be a secured mechanism, so to say, a guarantee of responsibility of state parties as well as a guarantee of uniform understanding of basic rights and freedoms (as human rights may be understood partially by states because of socio-economic, political and other domestic conditions). A number and character of annually complaints prove effectiveness and necessity of the activities done by the ECHR. Obligatoriness of the ECHR executions is prescribed in the CHRFF article 46. The states which ratified the CHRFF are under obligation to execute the decisions of the ECHR.

In the decree made on January, 15, 2009 on the case “Burdov v. Russia” (No. 2) the ECHR relying on its previous positions decided that the CHRFF article 46 obligates the country defendant to compensate for the violations of human rights, and to take general and individual, if appropriate, measures to stop these violations in national legal practice and to prevent, as possible, its consequences.

Another means of rights restoration is a legal review of the case violating the CHRFF. However, even this way of rights restoration, not talking about general measures, can be unavailable for an applier because of shortcomings of the national law system.

Such situation was in the Russian practice of observance (inobservance, to be more precise) of the executions of the ECHR by consideration of the case of A. Doroshek, A. Kot and E. Fedotova by the Constitutional Court.

The appliers argued on constitutionality of the Russian Federation code of civil procedure article 392 prescribing review of cases after new circumstances become known. According to the procedure law, court execution can be reviewed if new circumstances, important for the case, become known. Such circumstances include, for instance, falsification of proofs and perjured testimony of the witnesses.

The problem’s emerging was related with necessity to review the execution after the ECHR satisfied the request of the appliers (all cases: Decree made on January, 18, 2007 on “Kot v. Russia”, January, 8, 2009 “Kulkov and others v. Russia”, on April, 13, 2006 “Fedotova v. Russia” regarded violations of the CHRFF article 6 declaring the right to a fair trial). Russian courts refused to review the cases as in the Code of Civil Procedure the ECHR decisions are not new “circumstances”. Formal approach and gap in the procedure law were enough to refuse in justice which caused a request to the Constitution Court.

While considering the request the Constitutional Court tried to defend rights and freedoms, in opposition to formalism of courts of general jurisdiction.

The Constitutional Court reminded that international norms are a part of Russian law system, and have priority in regard of national law. The Russian Federation ratified the CHRFF, ipso facto, admitted jurisdiction of the ECHR obligatory. The executions of the ECHR must be fulfilled in relation with a concrete applier (payment of compensation and review of executions), but also must be taken into consideration of lawmakers to improve legal regulation.

To substantiate its position the Constitutional Court used the following arguments:

–          Everyone must be provided for with the right to judicial protection which is an affective trial in reasonable terms;

–          Analogical norms are included in the code of arbitration procedure and the code of criminal procedure, so absence of such regulation in the code of civil procedure violates constitutional principle of equality guaranteeing protection of any discrimination;

–          Absence of such ground in the Russian Federation Code of civil procedure Article 392 part 2 leads to refusal to consider these statements ( as it happened in the cases of the appliers), thereby blocks the force of the CHRFF in the territory of the Russian Federation.

–          As a result the Constitutional Court admits this norm constitutional, and showed its “constitutional and legal sense” obligatory for the courts: use analogy of the law and review cases, not to refuse on formal grounds, as it was earlier.

–          Besides that, as “general measures” the Constitutional Court obligated the federal lawmakers to add changes to the code of civil procedure in order to make Russian law to comply with the international rules and provide effective mechanism of rights restoration.

Approving of such statements of the Constitutional Court shall be hailed as a step towards improvement of national law for more effective maintaining rights and freedoms.

In other recent decision (Decree made on February, 27, 2009 N 4-П on the request on the case “Shtukaturov v. Russia”) the Constitutional court also protected human rights and named formal rules unconstitutional in fact limiting individual rights.

The appliers argued on the norms of procedure of declaring an individual incompetent because of mental condition. These norms allow a court to make decision without the individual’s presence, relying only on submitted documents. Meanwhile, it should be taken into consideration that declaring individual’s incompetence limits their rights and, besides that, may be used to get benefit by relatives or other interested people (for instance, they can get inheritance).

The ECHR in the Decree made on 27 March 2008, on the case Shtukaturov v. Russia stated that the applier’s rights to freedom and personal inviolability have been violated. And the Constitutional Court declared the norms of the Code of civil procedure in respect to illegal practice of courts unconstitutional. One of the arguments was inadmissibility of discrimination on behalf of mental disorders (mental illness, mental disability, or mental deficiency) which should be considered as “antidiscrimination” position of the Constitutional Court. Another “victory” over formal approach was reached in this case in regard of possibility to complain in general. At the moment of requests to the ECHR and to the Constitutional Court, the appliers were declared incompetent, and could not submit any complaints and even give a power of attorney to their representatives (they could do it only with the help of official representatives who, in this case, initiated the declaring them incompetent).

The activities of the Constitutional Court on adjusting law enforcement to international standards were supported by lawmakers by approving the federal law “On compensation for violations of rights to a trial in reasonable time and to execution within a reasonable time of decisions entered into force” (approved by the State Duma on 21 April 2010 and the Council of Federation on 28 April 2010, entered into force on 4 May 2010). In the comment to the law it is said that it was approved as “the decisions of the European Court on Human Rights on creation of effective means of legal remedy in regard of systematic violations of trials in reasonable time and executions of the decisions entered into force” must be executed.

However, not to be a “repeater” of human rights violations any state must pay compensations in time and review a case in reasonable time, also change in fact domestic practice reacting to the precedents of the European Court, including decisions made on other countries.

Otherwise, a vicious circle of multiple appeals of the same violations is created, which cannot be broken off because of omission of the state structures. By the way, considering the case Shtukaturov v. Russia the ECHR “expressed its surprise” that the administration of the hospital did not execute the decision to allow the applier meet with his lawyer. The administration said that the decisions of the European Court are obligatory “for the country in general”, but not for its concrete structures.  Until maintain human rights and elimination of violations are not a guideline for all levels of power (not only for “country in general” which probably means just political statements and declarations), any big changes for better should not be expected, even bearing in mind activities on improving law system.

A good example is a situation with repeating violations of rights which are not “noticed” by state until a concrete complaint is brought. The case of violation of the Roma children’s right to education is a good example. In the case “D.H. v. the Czech Republic” (Decision of the ECHR made on 13 November 2007) placement of the Roma children to schools for disabled children based on discrimination was proved by statistics. Though the ECHR declared discrimination and violation of the right to education, the problem was not solved. The rights of Roma children are still violated in many countries, including Russia.

Another example of discrimination of the Roma people is a decision on the case Stoica v. Romania which stated violation of the CHRFF article 14 in regard of racist motivation for illegal actions of representatives of state bodies (the Roma applier was beaten by a police officer) followed by omission of power.

In the precedent law of the European Court, discrimination is defined as different attitude to people in bad conditions without reasons (for instance, in the case Willis v. UK). Discrimination of any forms is incompatible with a fundamental principle of respect of human dignity, and the authorities must fight against any form of racism, especially related with violence. And, of course, racism of representatives of state bodies. However, it happens regularly in Russia. Most requests to the ADC Memorial are related with discrimination by state structures or concrete officers (in the worst case with violence as in the case Stoica v. Romania).

Let us hope that after the Constitutional Court made all analyzed statements, courts and other law enforcement organs will not “wave aside” the decisions of the European mentor, and the state policy will be aimed at providing human rights at least because it would be disadvantageous to review decisions and compensation payments.

The best we hope is that providing and protection of human rights is not just another basis to review the court decisions, but the main aim and essence of all law enforcement agencies (especially of justice ones) activities.

Anna Udyarova

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