Saturday 24 February 2007

Russia’s relations with the Council of Europe under increasing strain

Introduction

In the past few months Russia’s relations with the Council of Europe (CoE) have significantly deteriorated. This relationship started well. Russia acceded to the CoE in February 1996. It had applied to join in May 1992, following a number of seemingly positive developments[1]. In September 1991, following the defeat of the August 1991 “putsch”, the USSR Congress of Peoples Deputies passed the Declaration of Human Rights and Freedoms, or Soviet “Bill of Rights”[2]. Furthermore a new Russian Constitutional Court was established in 1992, able to adjudicate the conformity of Russian law with international human rights standards. It appeared that real progress was to be made.

However, the first Chechen War, which started in late 1994, threw grave doubt on the application. The first Russian Human Rights Ombudsman, Sergey Kovalyov, who played a leading role in combating human rights violations in Chechnya, warned: “I fear the Council does not realise the responsibility it bears...”.[3] A further point of concern was Russia’s enthusiastic use of the death penalty. Senior Russian officials said it would be “premature” to ban the death penalty, and that two thirds of the population agreed[4].

Nevertheless, on 25 January 1996 after fierce debate the Parliamentary Assembly of the CoE (PACE) voted by a two thirds majority to admit Russia, and on 21 February 1996 the Russian State Duma approved, by 204 votes to 18[5]. Vladimir Lukin, then Chair of the Duma’s International Affairs Committee, assured deputies that the benefits of Council membership would more than justify the Euro 12 m a year dues[6]. The upper house, the Federation Council, unanimously agreed.

Obligations

At a ceremony held in Strasbourg on 28 February 1996, to mark Russia’s entry into the Council of Europe, the Russian Foreign Minister signed the European Convention on Human Rights (ECHR) and other CoE treaties. He did this pursuant to the obligations accepted by Russia, set out in PACE Opinion 193(1996) of 25 January 1996[7].In February 1998 the Duma once again voted overwhelmingly to ratify the ECHR, and it entered into force for Russia on 1 November 1998. In this way, Russia fulfilled one of the most important commitments which it made on accession to the CoE. The PACE Opinion contained a long list of obligations. Russia has satisfied a number of them, including transfer of the penitentiary system from the Ministry of the Interior to the Ministry of Justice, in 1998, and enactment of new judicial procedural laws.

The death penalty

However, a very important obligation was:

“… to sign within one year and ratify within three years from the time of accession, Protocol No.6 to the European Convention on Human Rights on the abolition of the death penalty in time of peace, and to put into place a moratorium on executions with effect from the day of accession;”

Accordingly, on 16 May 1996 President Yeltsin issued a Decree ordering the government to present to the Duma within one month a law on ratification of Protocol 6, and on 2 August he announced an unofficial moratorium on executions. However, the Duma refused to ratify Protocol 6, and also refused to enact a law on moratorium. In August 1999 the Russian Government once more submitted Protocol 6 to the Duma for ratification. This met a similar fate.

The matter was resolved indirectly when, in February 1999, the Federal Constitutional Court held[8] that in order for the death penalty to be applied in Russia, the accused must in every part of Russia have the right to a trial by jury. At that time trial by jury existed in only 9 of 89 regions of Russia.

Russia has not executed an accused since 1999. But the Criminal Procedural Code of 2001 extended jury trial to the whole of Russia except Chechnya, where it should be introduced not later than Jan 1, 2007. This would then, of course, trigger the restoration of the death penalty. However, on 15 November the State Duma adopted at first reading a draft law which changes the date for introduction of jury trials in Chechnya from 1 January 2007 to 1 January 2010.[9] The (good) reason they gave was that lists of potential jurors must be compiled by municipalities, which do not yet exist in Chechnya. On 27 December 2006, the draft law was signed by the President; and it was published in the Russian Gazette and came into force on 31 December 2006, in the nick of time.[10] So Russia has another three years before the death penalty aill automatically become available once more.

This extraordinary delay in abolishing the death penalty has not gone unnoticed in Strasbourg. On 10 December 2006 the CoE Commissioner for Human Rights, Thomas Hammarberg, expressed his regret that Russia is the only European state where the death penalty has yet to be abolished, despite Russia’s promise to ban it ten years ago. For this reason, and, for example, because of deep concern regarding new amending legislation on NGOs, he announced that the CoE is not planning to wrap up its monitoring mission in Russia.[11] Russia has been lobbying hard for an end to monitoring.

Russia and the Court

Moreoever, Russia has recently been losing some high-profile cases in the Strasbourg Court. In May 2004, in Gusinskiy v Russia[12] the Court held that Russia had acted in bad faith in using the criminal justice system to force a commercial deal, by arresting the TV magnate. In July 2004, in Ilaşcu and Others v Moldova and Russia[13] the majority of the Grand Chamber of the Court found that Russia rendered support to Transdniestria, which broke away from Moldova, amounting to “effective control”. The first six Chechen applicants against Russia won their applications to Strasbourg in February 2005 [14]. In April 2005 in Shamayev and 12 others v Russia and Georgia[15], the Court condemned Russia for deliberately refusing to cooperate with the Court despite diplomatic assurances; and in October 2002 the Court had given “interim measures” indicating to Georgia that Chechens who had fled to Georgia should not extradited to Russia pending the Court’s consideration.

Russia poses an ever increasing problem for the Court. In 2006, 10,569 (out of a total of 50,500) complaints were made against Russia, of which 380 were referred to the Russian government, and 151 were found to be admissible. There were 102 judgments against Russia (out of 1,498 against all Council of Europe states). A total of 21,773 cases against Russia were struck off, without reasons being given, and 353 were declared inadmissible after a hearing. By the end of 2006, of 89,887 cases pending before the Court, about 20% concerned Russia, 12% Romania and 10% Turkey.[16]

The YUKOS cases

Another continuing matter of grave concern to the CoE is the continuing and remorseless prosecution by Russia of persons connected with Mikhail Khodorkovsky and YUKOS. On 4 October 2006 Mrs Sabine Leutheusser-Schnarrenberger, former German Minister of Justice, and Rapporteur for the PACE Committee on Legal Affairs and Human Rights, delivered an Opinion[17] including the following:

The Assembly also recalls its resolution 1418 (2005) and recommendation 1692 (2005) on the circumstances of the arrest and prosecution of leading YUKOS executives and regrets that subsequent developments have shown that the Assembly’s well-founded and constructive criticism was not taken into account by the competent Russian authorities.”

These expressions of regret by CoE institutions, and the defeats in the cases noted above, received a stunning riposte from the Russian authorities when, on Wednesday 20 December 2006, the Russian State Duma (lower house of parliament) voted to refuse ratification of Protocol 14 to the ECHR. This Protocol, which must be ratified by every one of the CoE’s 46 member states in order to come into force, is designed to streamline the procedure of the Strasbourg Court, so as to reduce the backlog of cases (now about 80,000 cases), and shorten the time needed to deliver a decision (now 5-6 years for a “fast-track” case, up to 12 years for other cases). The Vice-Speaker of the Duma, the nationalist Sergey Baburin, complained “… our voluminous membership fees (Euro 12m, the same as the UK) are being used for attacks on our country” by the CoE.[18] The Duma’s decision was described in the Kommersant newspaper as “The Duma ‘Gives It’ to the European Court.” [19] Alexei Mitrofanov, deputy chairman of the Duma’s legislation committee, said that the Duma decision was “a direct order from the Kremlin… it is also a mystery what we can achieve by all this. We should simply have explained our grievances to the West.” [20]

The Secretary General of the CoE, Terry Davis, immediately issued a Declaration expressing his disappointment that “essential and long-overdue changes… must be put on hold.” [21] This is a rare response, and in diplomatic terms very strongly worded.

Any impression that the Duma had somehow thwarted the President’s genuine intent was dispelled when, on 11 January 2007 he met members of the “Civil Society Institutions and Human Rights Council”. Former Constitutional Court judge and leading human rights supporter Tamara Morshchakova asked him specifically about the refusal to ratify Protocol 14. Putin replied:

“Unfortunately, our country is coming into collision with a politicisation of judicial decisions. We all know about the case of Ilascu, where the Russian Federation was accused of matters with which it has no connection whatsoever. This is a purely political decision, an undermining of trust in the judicial international system. And the deputies of the State Duma turned their attention also to that….” [22]

This was the first time Putin had openly criticised a decision of the ECtHR. He was answered two days later by René van der Linden, the Chairman of PACE, who insisted that if the Court renders a decision in favour of a citizen whose claim was not satisfied in the courts of his country, this must be seen as a decision directed to the protection of the citizen, and not against the state.[23]

Further light was thrown on Russia’s extreme sensitivity to losing these cases on 31 January 2007 when the recently retired President of the ECtHR, Luzius Wildhaber, not only claimed that he might have been poisoned during a visit to Russian in October 2006, but, more significantly, reported that he had been threatened by Russia. Specifically, he told the Neue Züricher Zeitung that Russia’s Ambassador to the CoE had come to his office in October 2002 to say that unless the Chechens (in Shamayev v Russia and Georgia, above) were handed over within 24 hours, Russia would blame the Court for the Moscow Theatre siege when Chechen extremists took 850 people hostage. Wildhaber said “It was a vile form of blackmail.”[24]

Conclusion

Russia’s increasingly tense relationship with Strasbourg raises the question whether Russia really wants to remain a member. The answer to this must be affirmative. The ECHR is now firmly part of Russia’s law. The decisions of the ECtHR are treated as binding precedents by the Russian Constitutional Court and other Russian courts. Many substantive and procedural Codes have been revised in the light of undertakings to the CoE. It should be noted that President Putin’s rather forthright, even aggressive, speech in Munich on 12 February 2007 was directed against the USA, and also the OSCE, but not at all against the CoE.[25] Nor is there any serious move in Strasbourg to suspend or exclude Russia, despite some strong comments in February 2007 from the Parliamentary Assembly on cooperation by Russia and others with the ECtHR.

Of course, the recent events throw into question Russia’s relations with the EU, all of whose member states are also members of the Council of Europe in good standing. The EU has a special relationship with Russia, which is not the subject matter of this short comment. This relationship is now subject to re-negotiation, as part of the EU’s new Neighbourhood Policy. Turbulence in Russia’s relations with the EU will not assist in this process (to put it mildly).



[1] See, for example, the chapters by Bill Bowring “Human Rights in Russia: Discourse of Emancipation or only a Mirage?” and by Rein Mullerson “Perspectives on Human Rights and Democracy in the Former Soviet Republics” in Istvan Pogany (ed) Human Rights in Eastern Europe (Edward Elgar, 1995); and Anntti Korkeakivi “Russia on the Rights Track: Human Rights in the New Constitution” (1994) Parker School Journal of Eastern European Law pp.233-253

[2] See Alexandra Chistyakova “The Russian Bill of Rights: Implications” Vol 24 (1992-3) Columbia Humna Rights Law Review pp.369-394

[3] Scott Parish, (1996) OMRI Daily Digest 26 January 1996

[4] Penny Morvant, (1996) OMRI Daily Digest 29 January 1996.

[5] Federal Law No.19 - F3. The text is set out in S. A. Glotov Pravo Soveta Evropi I Rossii [The Law of the Council of Europe and Russia] (Krasnodar, 1996) p.118

[6] Scott Parish, (1996) OMRI Daily Digest 22 February 1996. Lukin is now the Human Rights Ombudsman.

[7] See S. A. Glotov, ibid, pp.82-89

[8] Decision of 2 February 1999, No. 3-P, Rossiskaya Gazeta, 10 February 1999, English summary in Venice Commission, Bulletin on Constitutional Case-Law, Edition 1999-1, pp. 96-98.

[9] http://prima-news.ru/eng/news/2006/11/17/37095.html

[10] http://www.demokratia.ru/archive-ru/2007/obzor_zakonov_109.zip

[11] http://www.accessmylibrary.com/coms2/summary_0286-28873633_ITM

[12] Application no. 70276/01, decision of 19 May 2004.

[13] Application no. 48787/99, decision of 8 July 2004

[14] These applicants were represented, from 2000, by the author and his colleagues from the European Human Rights Advocacy Centre, which he founded, in partnership with the Russian human rights NGO “Memorial”, with EU funding, in 2002.

[15] Application no. 36378/02, [2005] ECHR 233, decision of 12 April 2005

[16] See Annual Survey of Activity for 2006, at http://www.echr.coe.int/NR/rdonlyres/69564084-9825-430B-9150-A9137DD22737/0/Survey_2006.pdf

[17] “Europe’s interest in the continued economic development of Russia”, Doc 11063, at http://assembly.coe.int/Main.asp?link=/Documents/WorkingDocs/Doc06/EDOC11063.htm

[18] http://www.humanrightshouse.org/dllvis5.asp?id=5031

[19] http://www.kommersant.com/p732043/r_500/State_Duma_European_Court/

[20] http://en.rian.ru/analysis/20061225/57808422.html

[21] https://wcd.coe.int/ViewDoc.jsp?id=1078355&BackColorInternet=F5CA75&BackColorIntranet=F5CA75&BackColorLogged=A9BACE

[22] http://www.kremlin.ru/text/appears/2007/01/116589.shtml

[23] Press conference in Moscow on 12 January 2007, by Rene van der Linden, Chairman of PACE, at

http://www.newsru.com/arch/russia/12jan2007/otvet.html

[24] Luke Harding “I was poisoned by Russian, human rights judge says” The Guardian 1 February 2007, at

http://www.guardian.co.uk/frontpage/story/0,,2003282,00.html

[25] For Putin’s speech, and question and answer session, see

http://president.kremlin.ru/eng/speeches/2007/02/10/0138_type82912type82914type82917type84779_118135.shtml

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