If Russia decides to challenge the rulings of international courts, such as those of the European Court on Human Rights, it could affect its image and further deteriorate relations with the Council of Europe.
A statue of Femida and books on law on the desk at court room of Kaliningrad regional court. Photo: AP
Yesterday Russian President Vladimir Putin signed a controversial law on the priority of national law over international court rulings. With enactment of this legislation, Russia is attempting to limit the ability of the European Court of Human Rights to impact its sovereign affairs. Doing so, however, might put Russia on a collision course with the Council of Europe.
Russia joined the Council of Europe in 1996 and signed the European Convention on Human Rights, which defends basic human rights and freedoms and also establishes the European Court of Human Rights (ECHR) in Strasbourg.
The ECHR receives complaints and applications from individuals, groups of people, or other member states alleging that a member state has breached one or more of the Convention's rights and freedoms.
Since Russia joined the Council of Europe, there have been many in Russia who have chafed under the conditions that membership in the Council of Europe imposes. For years, Russia has been the subject of many adverse rulings by the European Court of Human Rights critical of Russia’s human rights policies and practices, especially its treatment of detainees and civilians in the North Caucasus.
Russia’s anger with the Council of Europe reached a new high in 2014 when the Parliamentary Assembly of the Council of Europe voted to suspend the voting rights of Russia’s delegation to the Parliamentary Assembly of the Council of Europe (PACE) in response to Russia’s annexation of Crimea and other military activities in Ukraine.
Yukos vs. Russia
The most recent response to this “chafing” as a result of Russia’s membership in the Council of Europe has been the recent enactment of a law that permits the federal executive branch of the government to request that the Constitutional Court review complaints filed against Russia on the basis of a treaty before “an interstate agency for the protection of the rights and freedom of a person.”
If the Constitutional Court then decides that a judgment of that “interstate agency” conflicts with Russia’s constitution, this new law would permit the Constitutional Court to bar the enforcement of that judgment.
The draft legislation to amend the 1994 Law on Russia’s Constitutional Court received rapid consideration in the Federal Assembly. Introduced in the State Duma on Nov. 18, the draft law received final approval in the State Duma on Dec. 4 and then was confirmed by the Council of the Federation on Dec. 12. President Putin signed it into law on Dec. 15.
The European Court of Human Rights is never mentioned specifically in the law. Instead it consistently refers to “an interstate agency for the protection of the rights and freedoms of a person.”
It has been suggested in several media reports about this law that its enactment was at least partially motivated by the $50 billion judgment against Russia that was awarded in 2014 by an international arbitration tribunal in favor of former shareholders of the Yukos, an oil company that had been previously owned by oligarch Mikhail Khodorkovsky before he was imprisoned for alleged embezzlement.
The Yukos shareholders brought their action under the Energy Charter Treaty, an international treaty to which Russia is a party.
Russia’s record in the ECHR
In the years since Russia submitted to the jurisdiction of the ECHR, more cases have been brought against Russia alleging infringement of the rights and freedoms recognized in the European Convention on Human Rights than have been brought against all but a handful of other members of the Council of Europe.
According to the 2014 annual report of the ECHR, as of December 31, 2014, there were 69,900 cases pending before the ECHR. Of those, 9,990 were brought against Russia, which is more than were brought against any other member of the Council of Europe except for Italy (10,087) and Ukraine (13,635). Four nations — Italy, Russia, Turkey, and Ukraine —together account for 43,200 of the 69,900 pending cases before the ECHR (61.8 percent).
In 2014, the ECHR issued a total of 129 judgments against Russia in which the Court found at least one violation of the provisions of the European Convention on Human Rights. The leading bases for these judgments were violations of the right to liberty and security (56), inhuman or degrading treatment (50), and violations of the right to an effective remedy (30).
In 2014, the ECHR rendered more judgments against Russia than any other country. After the 129 judgments issued against Russia, the next highest totals were for Turkey (101) and Romania (87).
Though the ECHR was founded in 1959, almost forty years before Russia joined the Council of Europeand submitted to the jurisdiction of the ECHR, Russia is one of the leading violators of human rights in Europe as measured by the total number of judgments issued by the ECHR during the period 1959-2014 in which the Court found one or more violations of the European Convention on Human Rights.
During the period 1959-2014, 1,604 judgments were issued against Russia, exceeded only by the totals for Turkey (3,095) and Italy (2,312), both of which were subject to the jurisdiction of the ECHR from its founding in 1959.
Once an applicant has secured a judgment against Russia, satisfaction of the judgment is slow in coming. The remedies offered by the ECHR are limited to money judgments and Russia is a slow pay.
Statistics in the 2014 annual report of the Council of Europe Committee of Ministers on supervision of execution of ECHR judgments indicate that in 2014, the average duration for the execution of judgments against Russia was 9.7 years. The next highest duration was for Moldova (8.3 years) and then Estonia (6.9 years).
How the new legislation can affect Russia’s reputation
It is not difficult to understand why the Russian government is less than pleased with the ECHR. By joining the Council of Europeand submitting to the jurisdiction of the ECHR, Russia agreed to permit an external, supranational court of appeals to review Russian governmental actions as they affected human rights and freedoms.
This action represented a significant surrender of national sovereignty, all in the interest of improving Russia’s economic and political relations with the rest of Europe. Each year, thousands of applications are brought before the ECHR alleging that Russia has violated the applicants’ protected human rights, and these applications result in a substantial number of judgments against Russia, sparking further international and domestic criticism of the Putin regime’s human rights record.
However, submitting to the jurisdiction of the ECHR was a condition for Russia joining the Council of Europe in 1996. Russia could withdraw from the Council of Europe and the European Convention on Human Rights, but to do so would represent a huge deterioration and repudiation of its relations with Europe.
At present, of all the nations that share the continent of Europe only Belarus is not a member of the Council of Europe. For Russia to join Belarus as a European pariah would adversely affect Russia’s trade and political relations with its European neighbors. So, short of taking this drastic step, the Russian government has enacted legislation that seeks to reduce the role that the ECHR can play in overseeing the protection of human rights and freedoms in Russia.
But implementing this new law will conflict with Russia’s constitution and existing legislation and would violate its international treaty obligations. The problem is that the Russian constitution and laws repeatedly acknowledge the binding nature of international law and treaty obligations. Under Article 15 (4) of the Russian Federation Constitution, the rules of international treaties prevail over domestic laws. So, the new Russian law on law on the priority of national law over international court rulings would contradict the Russian Constitution.
Now, the authors of the new law seek to curtail the effect of ECHR judgments by establishing a procedure whereby the executive branch of the government can request that the Russian Constitutional Court determine if those judgments conflict with the Russian constitution. If the Constitutional Court rules that a ECHR judgment does conflict with the constitution, Russian courts would not be obligated to enforce it.
But a member of the Council of Europe cannot pick and choose which of the ECHR judgments it will recognize and enforce. To do so makes a joke of membership in the Council of Europe and its agreement to submit to the jurisdiction of the ECHR. To do so would violate the treaty obligations Russia undertook when it accepted membership in the Council of Europe and signed the European Convention on Human Rights. With this law Russia has further turned its face further away from Europe.
Russia’s relations with the Council of Europe are already fragile due to Russia’s actions in Ukraine—after the voting rights of the Russian delegation to PACE were suspended in 2014, Russia chose not to participate in the 2015 PACE session.
If Russia uses this new law to repudiate a judgment of the ECHR, institutional sanctions from the Council of Europe can be expected and criticism of Russia’s human rights record will continue to ramp up. Moreover, undermining the ECHR’s role as the court of last resort in Russia will undoubtedly cause still further expansion of the already widespread perception that Russia has a very poor record for an independent judiciary and the rule of law.
When the price of oil was high and the Russian economy was booming, perhaps President Putin and his supporters could afford to turn their backs on Europe. But in a time of $30 per barrel oil and widespread economic sanctions, Russia will pay a price for its estrangement from Europe, its values, rules and institutions.
Study after study has shown that investors consider the rule of law to be the most important factor in deciding where to invest. Nothing is closer to an investor’s heart than accessible, reliable, impartial legal protection of contract and property rights. With the enactment of this new law, Russia can expect criticism of Russian authoritarianism to grow even louder and more investors to choose to do business elsewhere.
The opinion of the author may not necessarily reflect the position of Russia Direct or its staff.