Strasbourg’s effect on Russia – and Russia’s effect on Strasbourg
It has been occasionally asked, in the light of case law that comes out from the European Court of Human Rights (ECtHR), whether Russia actually complies with the ECtHR’s judgments. In terms of the big picture, even more important is the question whether the country has made any systemic progress in terms of human rights protection while being part of the Strasbourg system. How could the paradox be explained that while being part of the Strasbourg system, Russia seems to have actually backslided in terms of the protection of some key political rights? Perhaps being part of the liberal Strasbourg with its price tag for individual violations offers a useful camouflage when making illiberal systemic changes in politics?
Altogether, theories of socialization and acculturation via European human rights law have proven too optimistic in the case of post-Soviet Russia. Socialization can only happen – or not – in concrete historical and social circumstances. There are historical alternatives to liberal choices and outcomes; there is no ‘end of history’ in Europe. Positive socialization in the context of human rights is not a guarantee that will inevitably materialize. Moreover, socialization in the context of human rights can take unexpected turns.
Yes, it is true that while being part of the Strasbourg system, Russia has undertaken several progressive structural reforms. For example, Russia reformed its criminal procedure law. In this sense, there certainly has been a certain Strasbourg effect on Russia. Moreover, there is a whole new generation of experts of European human rights law in Russia – lawyers like Anton Burkov, Kirill Koroteev, Grigory Vaipan and others – who, with their litigation and activism, have collectively started to have an impact on the dynamics within the legal profession in Russia. Having the Strasbourg court out there has motivated the younger Russian lawyers to diversify and successfully use legal mechanisms beyond Russian courts. The very existence of Strasbourg has changed the perception of the younger generation of lawyers on what is the role of law and lawyers in the Russian society.
However, part of the Strasbourg effect on the Russian government has also been rejection – i.e., a rejection of certain philosophical assumptions that have informed judgments of the European Court of Human Rights. One of the main protagonists here is the Russian Constitutional Court, especially its chairman Valery Zorkin. However, the Russian Ministry of Foreign Affairs has also occasionally expressed its political disagreement with certain judgments of the ECtHR. Disagreements emerged concerned the Ilascu and Kononov judgments and deepened with the Markin case. In the Markin case, the ECtHR and the Russian Constitutional Court clashed directly. In July 2015, the Constitutional Court decided that it had the right to check the constitutionality of the implementation of judgments of the ECtHR in Russia. Already in two cases – Anchugov and Gladkov and Yukos – it had concluded that the implementation of the judgments would contradict with the Constitution. The Russian State Duma has subsequently endorsed this approach introduced by the Constitutional Court. The Council of Europe has not yet found a satisfactory response to these developments.
According to Carl Schmitt, sovereign is he who decides about the state of exception, and with its 2015 judgment the Russian Constitutional Court has indicated that Russia remains a fully sovereign nation, even under the jurisdiction of the ECtHR. Of course, from the viewpoint of the ECtHR, the approach taken by Russia in 2015 sets a quite dangerous precedent – especially if other Council of Europe member states would start to copy it. Yet in a certain sense, there is nothing completely unexpected or illogical here either. Russia has simply applied its usual ‘great power logic’ to the ECtHR. It has veto power in the UN SC so why not claim it regarding certain (perceived as hostile) judgments of the ECtHR?
In 1996, when Russia became a member of the Council of Europe and in 1998 when the country ratified the European Convention on Human Rights, it was naively/optimistically assumed in the West that the Strasbourg system would help to ‘civilize’ (liberalize) post-Communist Russia. By today, the Russian government has made it quite clear that it does not want to be ‘civilized’ (liberalized) in such a top-down way. Instead, Moscow and St Petersburg (the seat of the Russian Constitutional Court) have advocated traditional values in the context of human rights – not just in the Council of Europe but for example also in the UN Human Rights Council. Thus, membership in the Council of Europe has become so diverse that different member states of the organization are occasionally on different sides in important ideological debates in the global political human rights body, the Human Rights Council.
Therefore, we should pay further attention to Russia’s impact at the Council of Europe and the European Court of Human Rights. Socialization has not been a one-way-street. To assume that Strasbourg could just ‘civilize’ countries of the size and history of Russia without significant impulses in the other direction would be too simplistic and frankly even arrogant in an unhelpful way.
Thanks to Russia and, in particular, to personalities such as the chairman of the Constitutional Court, Valery Zorkin, and the head of the Russian Orthodox Church, Patriarch Kirill, there is an accelerating ontological and epistemological debate about the philosophical foundations of (European) human rights law. These Russian conservative lawyers and theologians have persistently challenged liberal orthodoxies and prevailing dogmas regarding European human rights law and its making. Whether one agrees or disagrees with their positions substantively does not matter in the present context. What matters is that there is significant intra-European debate on the nature and direction of human rights; something that did not exist so visibly in the 1990s.
In free societies, the philosophical foundations of human rights will always remain a legitimate concern and subject of discussions. It is well known that human rights are not just based on black letter law but inevitably also deeply connected to understandings of morality. It is also thanks to the Russian conservative lawyers and religious thinkers that we are having a more large-scale debate on which morality exactly that is or should be. As a consequence, human rights have become a more dialogical and dialectical matter within the Council of Europe. Issues such as state sovereignty, judicial activism, dynamic interpretation of the European Convention on Human Rights are of major interest for all Council of Europe member states. Russia’s ‘persistent objections’ and conservative theoretical voices have contributed to lively, even passionate debates in which there are few taboos.
Looking back, it is well possible that the decision to accept post-Soviet Russia as member state of the Council of Europe in 1996 and to subject Russia to the jurisdiction of the European Court of Human Rights in 1998 was an example of (West) European ‘imperial overreach’. But Russia is historically (also) a European country so it could not initially be denied a seat at the table for the sake of ideological purity and impeccable record of behavior – including when defining what human rights mean. Russia’s membership in the Council of Europe is a good reminder that Europe taken together (not just Western Europe) is more diverse culturally, historically and nowadays again also ideologically than the liberal moment of the 1990s suggested. This is not how the founding fathers imagined the Council of Europe. The Convention and the Court have indeed been ‘living instruments’ to which the participation of Russia has injected some new, occasionally even unexpected life.
Lauri Mälksoo is Professor of International Law at the University of Tartu in Estonia and the author of “Russian Approaches to International Law” (OUP 2015) as well as co-editor of the book “Russia and the European Court of Human Rights: the Strasbourg Effect” (CUP 2017).
Cite as: Lauri Mälksoo, “Strasbourg’s Effect on Russia – and Russia’s Effect on Strasbourg”, Völkerrechtsblog, 3 January 2017, doi: 10.17176/20180103-113014.
As always, this is a stimulating and provocative intervention from Lauri Malksoo. But he raises a number of points which deserve further consideration.
This is especially in light of the fact that throughout his article he counterposes “liberal” Strasbourg with – presumably its opposite – Russia.
I have argued elsewhere that Britain and Russia share an imperial past which, in Britain’s case, plays a significant role in its continuing unease with the European Convention on Human Rights, and its hostility to its direct predecessor, the Declaration of the Rights of Man of 1789. The latter was denounced by Edmund Burke and Jeremy Bentham as intellectual terrorism, answered by Thomas Paine in his brilliant “Rights of Man”. That passionate debate continues to this day.
Afua Hirsch has recently argued in The Guardian for a lasting memorial for Britain’s colonial crimes. She means centuries of state-sanctioned criminal activity, the slave trade, and a history from “British army massacres in Ireland to the devastation of Bengal, and the reduction of modern-day Libya to rubble”. The Russian Empire and its successor the USSR were also guilty of bloody crimes, from the genocide of the Circassians in 1864 to that of the Crimean Tatars in 1944, and of course the illegal occupation after 1945 of the Baltic states, including Malksoo’s native Estonia. So what precisely is Russia to be “socialised” into? Surely the conclusion should be that the fight for human rights will and must be unremitting, in Britain or in Russia. Certainly not that there is a moral equivalence that should leave us indifferent to atrocities. And we most certainly do not need the assistance of Carl Schmitt, a non-Russian lifelong enemy of liberalism.
Malksoo starts with the assertion that it is “occasionally asked whether Russia actually complies with the ECtHR’s judgments.” In fact, as he knows, in nearly every case, including those, such as Kalashnikov and Ilascu, where Russia strongly disagreed with the Court’s judgment, Russia has paid, on time, the compensation – just satisfaction – ordered by the Court.
Furthermore, in 2016 the Parliamentary Assembly of the Council of Europe, assisted by the Human Rights Centre at the University of Essex, published a report on the impact of the ECHR in various countries . The Report identified a number of instances of positive impact in Russia:
• As a result of the pilot judgement in Burdov v Russia in 2009 over non-enforcement of a domestic court judgement in favour of the applicant, Russia enacted a Federal Compensation Act, as well as a Federal Law to guarantee the effectiveness of the new remedy.
• In 2005 the Supreme Court of the Russian Federation followed up the CoM’s 2004 Declaration and extended journalists’ freedom of expression to criticism of public officials: public officials must accept that they will be subject to public scrutiny and criticism. In 2008 the Court closed a number of applications in view of this change.
• Following Mikheyev v. Russia (2006) and other, similar, judgements, on account of torture or inhuman and degrading treatment inflicted on persons held in police custody, and a lack of effective investigations into such acts, special investigation units were created within the Investigative Committee, tasked with investigating particularly complex crimes by police and other law enforcement bodies.
• There had been progress in the implementation of the Court’s 2012 pilot judgement in Ananyev and Others v. Russia concerning inhuman and degrading conditions in Russian remand centres and the lack of an effective remedy. Russia presented and has been implementing an action plan as a result, monitored by the CoM.
• A number of measures have been taken to remedy numerous violations of the right to liberty, guaranteed by Article 5 of the Convention, owing to unlawful and lengthy unreasoned (or poorly reasoned) detention on remand. Legislative changes were made between 2008 and 2011. Both the Constitutional Court and the Supreme Court have emphasized that a suspect or accused may be detained only on the basis of a valid judicial decision. This was most recently monitored by the CoM in 2015.
Russian law and practice since ratification of the ECHR 20 years ago in 1998 have become saturated with Strasbourg principles and jurisprudence; and Russia has engaged constantly with the Council of Europe since 1996 in relation to prevention of torture, the fight against racism, the protection of social rights, the protection of minorities, the fight against corruption, and the work of the Venice Commission on democracy through law – as the Council of Europe prominantly points out on its web-site.
Also, as Malksoo knows, Anchugov and Gladkov followed in the footsteps of Hirst v UK in defying the ECtHR on the issue of prisoners’ voting rights, and the Russian Constitutional Court (RCC) proposed a pragmatic solution. Markin did indeed start with a clash between the ECtHR and the RCC, but further decisions of both courts are a fine example of a “judicial conversation”, and Mr Markin in the end got what he sought – and is now a practising advocate. I strongly suspect that a compromise will be reached in the Yukos case, if Russia has not “crashed out” of the Council of Europe following sanctions in PACE following the illegal annexation of Crimea in 2014. Britain is still smarting from its defeat in cases arising from its illegal invasion and occupation of Iraq in 2003.
And Britain has still failed, as PACE recalls regularly, to carry out the necessary investigation into the McKerr group of six cases, on “shoot to kill” (extrajudicial executions in Northern Ireland during the Troubles), with judgments in 2001 and 2002, and the 2003 judgment on the murder of the human rights lawyer Patrick Finucane.
In Britain Mrs May has for the time being shelved her commitment in 2016 to denounce the ECHR, though the Human Rights Act 1998 which partially incorporated the ECHR into UK law remains subject to attack. Britain, despite the xenophobia of Brexit, cannot be compared with the reactionary authoritarianism of the Russian regime. Malksoo is quite right to highlight President Putin, Patriarch Kirill, and Chairman Zorkin of the RCC as leaders in the attack on civil society (through the Foreign Agents Law), and their conservative hostility to human rights obligations. Zorkin seems to think it would be a good thing to bring back serfdom.
Malksoo is also right to note the younger generation of human rights lawyers in Russia – there are a lot more than three of them – and there are large numbers of young people committed to democracy. They join with many generations, including the USSR’s Dissidents who are still alive, who continue a Russian tradition over centuries of passionate debate as to the nature of Russia, and whether its future will be democratic or authoritarian. One should note that similar issues are now at stake in Poland and Hungary.
So I join Malksoo in defending against all its adversaries, in Russia and in Britain, the CoE, with the ECHR and ECtHR. But I also want to problematise its ideological and political origins, rooted as they are in some very dubious histories.