ECHR and Promotion of the Rule of Law in Russia

Петиция в поддержку требований, выдвинутых Надеждой Толоконниковой в заявлении о голодовке/ Petition in support of the demands made by Nadezhda Tolokonnikova in her declaration of hunger strike

2013-09-25T11:07:00.000-04:00

Уважаемые читатели,

На этой неделе в средствах массовой информации было опубликовано письмо Надежды Толоконниковой (заключенной участницы российской панк-группы Пусси Райот). В своем письме Надежда описывает бесчеловечные и унижающие достоинство человека условия пребывания в Исправительной Колонии №14. В частности, она заявляет, что заключенные женщины подвергаются рабскому обращению и принудительному труду, работая по 17 часов в день на швейном производстве по изготовлению формы для полицейских. Наказания за невыполнение нормы включают запрет на употребление пищи, запрет на отпраление естественных нужд и гигиены, стояние на морозе. По словам Надежды, в ее адрес поступали угрозы убийством или физической расправы от заместителя начальника этой колонии.

Вы можете прочитать письмо Надежды на русском языке, перейдя по ссылке.

В результате Надежда объявила голодовку в ответ на ужасные условия пребывания в Исправительной Колонии № 14. Она готова продолжать голодовку до тех пор, пока администрация колонии не удовлетворит ее требования.

Вы можете помочь Надежде, подписав петицию в поддержку ее требований, адресованную Директору ФСИН РФ. Для этого пройдите по ссылке.

Dear readers,

This week Nadezhda Tolokonnikova (a jailed member of the Russian Punk Band Pussy Riot) released a letter to mass media where she describes inhuman and degrading conditions and treatment at Correctional Colony No. 14. In particular, she claims that female inmates are treated like slaves and are subject to forced labour working 17 hours per day sewing police uniforms. Punishments for failing to meet the quotas included denial of food, prevention from using a bathroom, standing outside in the cold. Nadezhda also claims she was threatened with death or violence by the Deputy Chief of this colony.

You can read her letter in English by clicking the link.

As a result, Nadezhda launched a hunger strike to protest against such horrible conditions in Correctional Colony No.14. She will continue the strike until her concerns are addressed.

You can help Nadezhda by signing a petition in support of her demands addressed to the Director of the Penitentiary Service of the Russian Federation. To do so, please visit the link.

ЕВРОПЕЙСКИЕ СУДЫ: юридический блог о праве Европейского Союза и судебной практике ЕСПЧ

2013-02-28T16:51:00.000-05:00

Уважаемые читатели,

Я хотела бы познакомить вас с правовым блогом EUROPEAN COURTS (Европейские Суды), созданным в 2013 году Марком де Вердом, судьей Апелляционного Суда Амстердама (Нидерланды). Основными читателями и участниками блога являются судьи и юристы из Европы. Блог является своего рода платформой для обмена знаниями, опытом и идеями в области права Европейского Союза и практики Европейского Суда по Правам Человека. Цель блога состоит в том, чтобы укрепить сотрудничество и достичь взаимопонимание среди Европейских судей и юристов.

Участие судей и юристов из России в дискуссиях указанного блога более чем приветствуется. Если у вас есть интересные идеи и вы хотели бы опубликовать свою статью на сайте блога EUROPEAN COURTS, присылайте их на адрес электронной почты блога europeancourts@gmail.com или на мой адрес sg492@georgetown.edu (в случае владения только русским языком). Хотя использование русского языка при написании статей допускается, желательно их готовить на английском языке.

Кстати, сегодня была опубликована моя статья на сайте указанного блога с названием «Российская панк-группа Пусси Райот идет в Страсбург: песня в тональности мажор или минор?» Вы можете ознакомиться с содержанием моей статьи, пройдя по ссылке.

ENGLISH VERSION:

EUROPEAN COURTS: EU and ECHR Law Blog

Dear readers,

I would like to introduce you to a law blog EUROPEAN COURTS created in 2013 by Marc de Werd, Justice in the Amsterdam Court of Appeal in the Netherlands. The main readers and participants of this blog are European judges and lawyers. This blog is a platform of exchange of knowledge, experience and ideas in the field of EU law and the ECHR case law. The objective of the blog is future cooperation and a better understanding among European judges and lawyers.

Russian judges and lawyers are more than welcome to participate in the discussions of this blog. If you have interesting ideas and would like to publish a post in the EUROPEAN COURTS law blog, you may send them to europeancourts@gmail.com or to my e-mail sg492@georgetown.edu (in case you know only Russian). It is desirable to draft your posts in English, though writing in Russian is also permitted.

By the way, today my post titled “Russian punk band Pussy Riot goes to Strasbourg: a song in major or minor?” was published in this blog. You can read it by clicking the link.

Call for Applications – 2nd Martens Summer School on International Law

2013-02-15T10:04:00.000-05:00

For the second time Martens Summer School on International Law organizes lectures devoted to comparative aspects of international law and human rights. A particular focus will be on issues related to Russia and Eastern Europe.

Dates: 28 July – 2 August 2013

Location: Pärnu College, Estonia

The topics and lecturers will be the following:

· Professor Bill Bowring (Birkbeck College, London) “Litigating Russian Cases in the European Court of Human Rights”

· Professor Eduard Ivanov (Higher School of Economics, Moscow), “International Law and the Problem of Terrorism”

· Judge Angelika Nußberger (European Court of Human Rights, Strasbourg), “The Protection of Social and Economic Rights in Europe”

· Associate Professor René Värk (University of Tartu), “Challenges and Developments in International Humanitarian Law”

Each lecturer will present 5 lectures over 5 days of the week.

Professor Lauri Mälksoo (University of Tartu) will hold the Annual Lecture at the festive reception on 29 July, and will address newest research about the life and work of Friendrich Fromhold von Martens (1845 – 1909), the world-known Tsarist Russian international law expert.

Deadline for applications is 4 June 2013.

For more information on eligibility requirements, application process and study fees please visit the link.

American families challenge the Dima Yakovlev Law in the European Court of Human Rights

2013-01-26T14:57:00.000-05:00

On 22 January 2013, four American families submitted an application to the ECHR asking the Court for urgent communication of their application to the Russian Government. All applicants were in the process of adopting Russian children, but could not finalize it due to enactment of the Dima Yakovlev Law by Russia, prohibiting US citizens from adopting Russian orphans. The applicants claim that by passing this Law Russia violated several Articles of the Convention. They also asked the ECHR to order the Russian Government to amend the respective legislation.

Each of the applicants claim that they had already established relationships with the orphans, and that the children had started calling their future adoptive parents “mom” and “dad.” For these reasons, according to the applicants’ attorneys, each of their applicants have formed a family with these children even without having official authorization from domestic courts for adoption. In the applicants’ view, the Dima Yakovlev Law violates their right to respect for private and family life (Article 8 of the Convention), since it impedes them to be with their future adoptive children.

Further, the applicants claim that this Law contradicts Article 3 (prohibition of torture) and Article 14 (prohibition of discrimination) of the Convention. The applicants also argue that they had no effective remedy to contest the Dima Yakovlev Law in Russia, referring to violation of Article 13 (right to an effective remedy) of the Convention. Though, it will be rather challenging to prove this, since the applicants did not try to apply to the Constitutional Court of the Russian Federation to claim unconstitutionality of this Law. It is likely that the Russian Government will use this argument to contest exhaustion of all domestic remedies by the applicants before lodging their application with the ECHR.

The Dima Yakovlev Law was named after a Russian boy, Dima Yakovlev, who was adopted by Miles Harrison, a US citizen. In July 2008 Dima died, when his adoptive father had left him in a car in boiling heat for about nine hours. The Dima Yakovlev Law was Russia’s response to enactment of the Magnitsky Bill in the United States that imposes certain financial sanctions on Russian officials allegedly responsible for the death of Russian lawyer Sergey Magnitsky and prohibits their entrance to the United States.

Recent update: On 28 January 2013 the ECHR considered the application of the American families. On 29 January 2013 the complaint was communicated to the Russian Government. The Court asked the Russian authorities to reply to this application no later than 18 February 2013.

The use of force by the Russian military and the violation of property rights

2013-01-19T14:38:00.000-05:00

On 15 January 2012, the ECHR found Russia responsible for destruction of property in Chechnya during an exchange of fire between the Russian military and illegal armed groups in the case of Miltayev and Meltayeva v. Russia. This judgment contradicts conclusions of the domestic courts on the same matter as to the absence of State responsibility.

Both applicants ran a private photo laboratory in Chechnya. In 2001, a skirmish took place between the military and illegal armed groups, and the building where the applicants rented a room for their business was set on fire. As a result, their photo laboratory was destroyed. Reports of the local fire service and other commissions that inspected the site right after the attack indicated that the shelling was the cause of the fire. This fact was also confirmed by documents from the criminal investigation. Eye-witness statements pointed at shooting from a tank as a cause of the fire.

Regardless of the evidence submitted by the applicants to the domestic courts, the latter dismissed their compensation claims against the Russian Ministry of Defense due to the following reasons. First, in the courts’ view the Ministry had acted lawfully, since military operations in Chechnya were authorized by respective Presidential and Governmental Decrees. Second, the applicants had not presented evidence confirming that their property had been destroyed by a “source of increased danger” owned by State agents. The ECHR found the domestic courts’ decisions “arbitrary or manifestly unreasonable” and “irreconcilable with the body of evidence submitted by the applicants.”

In the Court’s view, the evidence presented by the applicants was sufficient to determine the existence of Russia’s interference with their property. The Russian Government did not argue as to the lawfulness, legitimate aim or proportionality of the interference with the applicants’ property. Further, according to the ECHR, the Russian laws that released State agents participating in a counter-terrorist operation from any liability for damage caused are formulated in vague and general terms and cannot serve as a sufficient legal basis for the destruction of an individual’s property. In this respect, the ECHR found that Russia violated the applicants’ right to respect their property (Article 1 of Protocol No. 1 to the Convention).

However, the Court dismissed the applicants’ just satisfaction claims, since the applicants failed to submit their claims to the ECHR within the time-limit after the communication of their complaint to the Russian Government.

Konstantin Markin threw a military court into a dilemma: to side with the ECHR or to support the Constitutional Court of the Russian Federation

2012-08-26T10:51:00.001-04:00

The case of Konstantin Markin v. Russia created a scandal between the ECHR and the Constitutional Court of the Russian Federation due to the fact that, for the first time, the ECHR seriously criticized the Constitutional Court’s arguments related to the same matter. As a result, Russian authorities, including the Constitutional Court, threatened to ignore the ECHR judgments when they affect Russia’s sovereignty and fundamental constitutional principles, and the Grand Chamber of the ECHR had to reconsider the case of Konstantin Markin v. Russia to alleviate the conflict.

The case of Konstantin Markin originated in 2005, when he was a divorced father of three minor children and a radio intelligence operator in the Russian armed forces. Since he was left to raise his children alone, he asked the head of his military unit for three years’ parental leave to take care of his children. His request was rejected since, according to Russian law, such leave could be granted only to female military personnel. Meanwhile, as concerns rights to parental leave, Russian law does not establish different treatment of civilian fathers and mothers that are both entitled to such leave.

Markin challenged the decision of his military unit in military courts claiming three years’ parental leave. In March and April 2006 the military courts dismissed his claims on the same grounds as having no basis in domestic law. Right after his unsuccessful court proceedings, the applicant lodged his complaint with the ECHR in May 2006. Interestingly, following submission of his application to the ECHR, in October 2006 the applicant’s military unit granted him approximately two years’ parental leave and financial aid of about 5,900 Euros contrary to the military courts decisions and domestic law.

Nevertheless, in 2008, Markin decided to apply to the Constitutional Court of the Russian Federation to challenge the provisions of the Military Service Act concerning parental leave. He claimed that inability of military fathers to take three years’ parental leave contradicts the principle of equality between men and women envisaged by the Russian Constitution. In 2009, the Constitutional Court rejected his application, stating, inter alia, that by signing a military service contract, a serviceman voluntarily accepts limitations on his civil rights and freedoms, which are necessary in order to create appropriate conditions for effective professional activity in defence of the country. The Constitutional Court also added that “if the serviceman decides to take care of his child himself, he is entitled to early termination of his service for family reasons.”

In October 2010, the ECHR delivered its Chamber judgment in case of Konstantin Markin v. Russia, where it found that refusal to grant the applicant three years’ parental leave violated Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the Convention. In the same judgment the ECHR seriously criticized the arguments of the Constitutional Court presented in its judgment of 2009 and instructed Russian authorities to change Russian legislation to put an end to the discrimination against male military personnel as concerns their right to parental leave.

This was the first time ever the ECHR directly criticized the Constitutional Court of the Russian Federation, which immediately gave rise to a high-profile scandal between Russian authorities and the ECHR. The Constitutional Court regarded this judgment as interference in the internal affairs of Russia, and a Russian Senator, Alexander Torshin suggested a rather radical bill that limits the ECHR influence on Russia’s legal system. According to Torshin, if the ECHR and the Constitutional Court of the Russian Federation have different opinions regarding Russian law, the last word should always belong to the Constitutional Court. For example, if the ECHR finds that Russian law violates the Convention its judgments should be executed only in those cases when the Constitutional Court of the Russian Federation recognizes this Russian law to be unconstitutional. The Secretary General of the Council of Europe was “very concerned” with such reaction of the Russian authorities, and commented as follows:

“I take this very seriously, but I trust that there will be a thorough debate before any decision is taken as there could be serious consequences both for the Russian Federation and the Council of Europe”.

As a result of this scandal the ECHR reconsidered Markin case at the request of the Russian Government. The second judgment, which is final, was given by the Grand Chamber of the ECHR on 22 March 2012. The ECHR’s second ruling still contradicts the position of the Constitutional Court and it reconfirmed violations of Articles 14 and 8 of the Convention. However, the ECHR retracted its criticism of the Constitutional Court and direct order to amend Russian discriminatory legislation.

Following his final victory at the ECHR, Konstantin Markin reapplied to the military court with a request to reconsider his case. On 25 July 2012 the military court accepted his case and on 21 August 2012 began its review. The military court faces a rather difficult dilemma in this case: to support the ECHR or to side with the Constitutional Court of the Russian Federation. In order not to be between two fires the military court may refer this matter back to the Constitutional Court by sending a request to check again the constitutionality of the provisions that the ECHR found discriminatory. The Constitutional Court may either refuse to consider this request, since it previously ruled on the same matter in 2009, or find a compromise in order to eliminate a conflict with the ECHR. In fact, the Chairman of the Constitutional Court is ready to compromise. Since in its second final judgment one of the decisive factors for the ECHR was that Markin served as a radio intelligence operator and could be easily replaced by other servicemen or servicewomen, the Constitutional Court Chairman suggested to grant parental leave only to those servicemen that perform their duty as a military assistance personnel.

It appears that this case is a matter of principle for Konstantin Markin. After getting almost two years’ parental leave and financial aid on an exceptional basis from his military unit, winning his case in the ECHR, retiring from the military and remarrying his ex-wife, finishing his law studies and becoming a lawyer afterwards, Markin still wants to continue his struggle against discrimination of military male personnel as concerns the rights to parental leave. Thus, in parallel with his military court proceedings, he is going to apply to the Russian Government and the Russian Parliament with a request to amend discriminatory Russian legislation in accordance with international law.

447 Russian nationals brought a complaint to the ECHR in connection with the terrorist attack in Beslan

2012-05-03T15:33:00.000-04:00

On 2 May, 2012 the ECHR communicated to the Russian Government seven applications brought by 447 Russian nationals related to the terrorist attack in school No.1 in Beslan, North Ossetia, on 1-3 September 2004. Some of the applicants were taken hostage or injured during this attack. Some of them are relatives of those who were held hostage, injured or killed. The applicants claim that Russia violated the following articles of the Convention: Article 2 (the right to life), Article 3 (prohibition of inhuman and cruel treatment), Article 6 (the right to a fair trial), Article 8 (the right to respect for family life), Article 10 (the right to receive and impart information) and Article 13 (the right to an effective domestic remedy). The complete text of the application can be found here (type “Emma Lazarovna TAGAYEVA and Others against Russia and 6 other applications” in the “Text” box and click “Search”).

On 1 September 2004 about 1,128 people were taken hostage by a group of terrorists in school No. 1 in Beslan. Among the hostages were about 800 children aged between several months and eighteen years. As a result of the terroristic attack 385 people died, including 334 hostages, and 186 of them children. 728 hostages were injured, 10 FSB servicemen were killed and 55 servicemen of the army and other law enforcement authorities were wounded. 31 terrorists were killed, and 1 terrorists was later sentenced to life imprisonment by a national court.

The applicants claim, inter alia, that Russian officials failed to prevent this terrorist attack and were directly responsible for deaths of several people due to disproportionate use of force by the authorities when attacking the terrorists and failure to exhaust all peaceful means to resolve the situation.

In connection with these application the Court asked the applicants and the Russian Government several question, including the following:

- if the operative information available prior to the hostage-taking of 1 September 2004 allowed the relevant authorities to consider school no. 1 in Beslan as a possible target of a terrorist attack;

- if all necessary precautions were fully implemented by the authorities in practice;

- if the authorities provided adequate medical and rescue aid to the victims;

- if the State authorities employed lethal force which was absolutely necessary and if it resulted in deaths and injury of hostages;

- if the Operative Headquarters strategy was aimed at guaranteeing the security of a maximum possible number of persons.

It should be noted, that a similar case has been already examined by the Court (Finogenov and others v. Russia). It concerned the terrorist attack that took place on 23-26 October 2002 in the Dubrovka theater, Moscow, Russia. The applicants’ claims were very similar to those of Beslan victims. In its judgment of 20 December 2011 the ECHR found, inter alia, that Russian authorities breached Article 2 (right to life) due to their failure to adequately plan and conduct the rescue operation. The Court noted that

“… the rescue operation of 26 October 2002 was not sufficiently prepared, in particular because of the inadequate information exchange between various services, belated beginning of the evacuation, limited on-the-field coordination of various services, lack of appropriate medical treatment and equipment on the spot, and inadequate logistics. The Court concludes that the State breached its positive obligations under Article 2 of the Convention.”

Meanwhile, the Court found that the use of lethal force by the security forces was justified and the use of gas during the storming was not in the circumstances a disproportionate measure.

The ECHR judgment in the case of Tkachevy v. Russia

2012-02-23T13:28:00.000-05:00

Last week on 14 February 2012 the ECHR delivered its judgment in the case of Tkachevy v. Russia. The details of the Tkachevy case are described in my previous post of 9 February 2012. The Court found a violation of Article 1 Protocol No.1 (protection of property) and ordered Russia to pay the applicants’ costs and expenses connected with the proceedings before the Court. As far as the damage is concerned, the applicants wished to have their flat in Znamenka returned (if possible at all). Otherwise, they claimed damage. However, the ECHR was not ready to decide the issue of the pecuniary and non-pecuniary damages and gave the parties 3 months to reach any possible agreement or provide their written observations on this question.

The Court did not have any doubts that actions of Russian authorities towards the applicants’ flat constituted expropriation and thus interfered with the applicants’ right to the peaceful enjoyment of their possessions. According to the Convention and the ECHR case law expropriation may be justified if it was done in the public interest, in accordance with national law and general principles of international law. If one of these requirements is not met, then the Government will be in violation of the Article 1 Protocol No.1 to the Convention. In the present case the Court was not convinced that Russian authorities expropriated the applicants’ flat in the public interest.

Thus, the Russian authorities claimed that the building was dilapidated and it was dangerous for the residents to stay there any longer; that’s why they made a decision to expropriate the building in the public interest of safety. However, a number of facts in the case prove the contrary:

1. The decision to expropriate the building was made before the issuance of the survey report that found the property unsafe and dangerous.

2. The conclusions in the report were predetermined, since the authorities admitted that the local prefect had requested to classify the building as dangerous.

3. If the expropriation had been motivated only by the safety concerns, the authorities would have let the applicants reoccupy the property after its repair, which had never happened in this case.

4. As a result of this expropriation 100% of the building went to the investor, Tverskaya Finance, which diminished the public element of the transaction, since it became in fact an alienation of property from one private party to another.

5. As a reason for ordering the expropriation, the domestic court referred to the conversion of the building into non-residential premises. However, according to the information located at http://znamenka9.ru (the Znamenka project site) the building where the applicants’ flat was located has become luxury residential premises after its repair contrary to the original goal of the project.

Based on the above facts the Court concluded that the Russian Government failed to show clearly and convincingly the public interest in the present case. Therefore, there has been a violation of Artilc1e Protocol No.1 to the Convention.

Tkachevy v. Russia: a case concerning eviction from a flat near Kremlin

2012-02-09T08:35:00.005-05:00

Next week on 14 February 2012 the ECHR will deliver its judgment in case of Tkachevy v. Russia (Application no. 35430/05) concerning alleged violation of Article 1 Protocol No. 1 (protection of property). The applicants are Russian nationals, husband and wife, who were born in 1957 and 1966 respectively and live in Moscow. In 2005 they were evicted from the flat that they owned. This flat was located in the historical area of Moscow on Znamenka Street, close to Kremlin. Allegedly Russian authorities decided to expropriate the building where the applicants’ flat was located in the public interest, namely: first, in order to expand the Moscow State Art Gallery and, second, due to disrepair of the building which made it dangerous for its residents to stay there.

Meanwhile, the applicants disagree with such reasoning given by the authorities and claim that this decision to expropriate the building was not genuine. Thus, one of the main reasons for their eviction from and subsequent expropriation of the flat was that the authorities planned to turn the building into a non-residential one. But in fact the building has become a luxury residence after its repair and now it is owned by a private entity.

As a result of this expropriation decision the applicants’ flat was replaced by another one. However, the applicants claim that this replacement flat is worse than their previous one, since it is dilapidated and located next to a busy railway station.

The detailed analyses of the Court’s judgment in this case will follow shortly.

Russia and International Human Rights Law: Summer School in Estonia

2012-01-31T17:32:00.000-05:00

This summer Martens Summer School on International Law organizes lectures devoted to Russia and International Human Rights Law.

Dates: 29 July – 3 August 2012

Place: University of Tartu premises in Pärnu, Estonia

The topics and lecturers will be the following:

• “Human Rights in Russian Courts – an NGO Perspective” (Dr Anton Burkov, Yekaterinburg; NGO “Sutyazhnik”);

• “ European Convention on Human Rights and Russia (Case-law of the European Court of Human Rights: A Judge’s View)” (Judge Anatoly Kovler, European Court of Human Rights);

• “The History of International Law and Human Rights in Russia – a Key to Understanding Today’s Debates” (Professor Lauri Mälksoo, University of Tartu);

• “The Place of International Law in Russia’s Legal System: Doctrine and Practice” (Professor Sergei Marochkin, Tyumen State University).

Deadline for applications is 4 June 2012.

For more information on eligibility requirements, application process and study fees please visit the link.

Most of the cases pending before the ECHR concern Russia

2012-01-31T16:52:00.000-05:00

The official site of the ECHR reports that on 26 January 2012 the Court held its annual press conference, where the President of the Court, Sir Nicolas Bratza, presented the Court’s annual statistics for 2011. [For more information see the following documents: Annual Report 2011, Facts and Figures 2011 and Table of Violations 1959-2011]

Statistics for 1959-2011:

At the end of 2011, more than 151,600 cases were pending before the Court. And most of them are against Russia (26.6% of the total workload or 40,250 cases). The Court has delivered 14,854 judgments since it was established in 1959. 1,212 out of these judgments concern Russia. Only in 49 cases against Russia the Court found no violation of the Convention. Most often Russia violated the following provisions of the Convention:

- the right to a fair trial (Article 6) – 570;
- protection of property (Article 1, Protocol No.1) – 456;
- right to liberty and security (Article 5) – 422;
- inhuman or degrading treatment (Article 3) – 357;
- right to life (Article 2) – 202.

Statistics for 2011:

64,547 applications were allocated to a judicial formation in 2011. Russia topped the list of the countries in this category with 14,465 applications against it. However, the majority of the applications against Russia (12,223) was struck out of the list or declared inadmissible.

In 2011 the Court delivered 1,157 judgments, 133 of which concerned Russia. This is the second highest number after Turkey (174). Only in 10 cases against Russia the Court found no violation of the Convention. Most often Russia was found responsible for violation of the following Article of the Convention:

- right to liberty and security (Article 5) – 68;
- prohibition of inhuman or degrading treatment (Article 3) – 62;
- right to life (Article 2) - 53;
- right to respect for private and family life (Article 8) – 56;
- right to an effective remedy (Article 13) – 58;
- right to a fair trial (Article 6) – 40.

Based on analyses of the Court’s judgments concerning Russia delivered in 2011, most of the cases where Russia violated the right to life concerned forced disappearances in Chechnya. Violation of Article 3 of the Convention (prohibition of inhuman or degrading treatment) usually happened due to either the condition of the applicants’ detention or their ill-treatment in custody by police and other law enforcement officers.

Anti-corruption blogger Alexey Navalny filed a complaint to the ECHR

2011-12-13T08:39:00.002-05:00

According to RIA Novosty, a Russian news agency, Alexey Navalny submitted an application to the ECHR claiming several violations of the Convention by Russian authorities in connection with his recent arrest during protests in Moscow against the results of the parliamentary elections in Russia. Below is the link to the full text of the article posted by RIA Novosti.

Top blogger Navalny challenges his arrest in European court

01:51 13/12/2011 Lawyers of anti-corruption activist and top blogger Alexei Navalny and opposition leader Ilya Yashin, detained during protests last week, lodged their complaint to the European Court of Human Rights (ECHR)>>

Other news of the day

Gladysheva v. Russia: the ECHR protected the rights of a bona fide buyer

2011-12-09T17:31:00.002-05:00

This week, on 6 December 2011, the ECHR delivered its judgment in the case of Gladysheva v. Russia concerning dispossession of the applicant’s title to the flat and the eviction order issued against her by Russian authorities.[1] The ECHR found Russia responsible for violating the applicant’s rights guaranteed by Article 1 Protocol No. 1 to the Convention (protection of property) and Article 8 of the Convention (respect for home) and ordered the Russian Government to ensure “full restitution of the applicant’s title to the flat and the annulment of her eviction order” once the ECHR judgment becomes final. The applicant is also entitled to EUR 9,000 in respect of non-pecuniary damage and EUR 11,245 in respect of costs and expenses.

Facts of the case

In September 2005 the applicant bought a flat in Moscow from V. for 990,000.00 Roubles. V. was the second owner of this flat, since earlier he had bought it from Ms. Ye. Ms. Ye had acquired this flat after her husband’s death in the course of a privatization procedure, since initially the flat was social housing and belonged to the City of Moscow. In 2005 Ms. Gladysheva’s title to the flat was officially registered by the relevant registration authorities in Russia. Since then she has been living in this flat with her teenage son.

However, in 2008 the Moscow Housing Department submitted an application to a court against Ms. Gladysheva and all other previous owners of the flat. Moscow authorities asked the court to establish that the flat had been fraudulently acquired by Ye. and, thus, to declare the privatization of the flat and all subsequent transactions with the flat null and void. In particular, the Moscow authorities claimed that Ms. Ye. had no right to privatize her husband’s flat after his death, since she was not in fact married to her “husband” and the marriage certificate had been forged.

This fact was later confirmed by the national courts that also found the privatization of the flat by Ms. Ye. to be fraudulent. And though the courts recognized that Ms. Gladysheva was a bona fide buyer of this flat, they also concluded that this flat had been removed from the City of Moscow’s possession without its intention to give it up. In support of this position the courts applied Article 302 paragraph 1 of the Civil Code of the Russian Federation[2]. The courts also ordered the applicant’s eviction without compensation or an offer of alternative housing. The applicant’s appeal to this decision was not successful. However, the courts agreed to adjourn the eviction order twice; last time it was extended until 1 June 2011. The applicant has not been evicted yet, but she claims it might happen any day soon.

Applicant’s claims

On 15 January 2010 the applicant submitted her application to the ECHR claiming that she had been dispossessed of her flat contrary to Article 1 of Protocol No. 1 to the Convention and that she faced eviction in violation of Article 8 of the Convention.

The applicant alleged, inter alia, that the courts should not apply Article 302 of the Civil Code and grant the Moscow authorities’ claim, since “any fraud on the part of Ye… had no link with the presence, or absence, of an intention on the part of the Moscow Housing Department to divest itself of the property.”

She also considered the measures taken by the Russian authorities disproportionate, since “after paying the full market price for the flat she would be stripped of the property for no fault on her part and would have to pay for housing at the market rate.”

The applicant’s claims were supported by the Deputy Prosecutor General and the Moscow City Ombudsman. Both of them considered the revocation of her ownership of the flat unlawful and unjustified. They also pointed out that the State was a party to the privatization transaction, and thus could not be unaware of the transfer of its ownership title to Ms. Ye and, thus the national courts were wrong to apply Article 302 paragraph 1 of the Civil Code of the Russian Federation in this case. However, the intervention of these two officials in the applicant’s case did not bring positive results either.

Russian Government’s position

The Government claimed that their actions pursued the legitimate aim to protect the rights of those who were eligible for social housing. According to the Government “the dispossession in the present case was therefore necessary and did not place an individual excessive burden on the applicant.” In any case the Government believed that the applicant “would not have to be put on to the street, because she could move in with her parents, who also lived in Moscow.” Moreover, the Government suggested the applicant to sue V., the seller of the flat, for damages.

As regards application of Article 302 of the Civil Code of the Russian Federation, the Government expressed no doubt “that the flat had left the possession of the Moscow Housing Department in the absence of intention to divest.”

The Court’s reasoning

The Court upheld the applicant’s allegations and found violations of Article 1 Protocol No.1 to the Convention and Article 8 of the Convention.

With respect to Article 1 Protocol No. 1 to the Convention the ECHR reasoned as follows:

1. According to the Court’s case-law in order to comply with the general rule of Article 1 of Protocol No. 1, a State interference with the peaceful enjoyment of one’s property must meet each of the following requirements: it must be lawful, pursue a legitimate aim and be reasonably proportionate to the aim sought to be realized.

2. The Court did not make any conclusions regarding the lawfulness of the State interference due to the fact that it was not “sufficiently clear” if “there may have been a certain deficiency, either in the application of the domestic law or in the quality of the law.” Though the Court did mention that, contrary to official interpretation of Article 302 of the Civil Code and explicit instructions given by the national highest courts, the national courts had failed to examine the intentions of the Moscow Housing Department as regards the transfer of property title.

3. The Court assumed that the State interference with the applicant’s title to the flat pursued the public interest, “in that it catered for the needs of those on the waiting list for social housing.”

4. However, the State interference at issue did not meet the third requirement of proportionality. The Court pointed out that Ms. Ye’s title had been checked by the registration authorities at least three times during the legalization of three transactions with the flat. In this connection the Court stressed out that:

“With so many regulatory authorities having granted clearance to Ye.’s title it was not for the applicant, or any other third-party buyer of the flat, to assume the risk of ownership being revoked on account of defects which should have been eliminated in procedures specially designed to do so. The authorities’ oversight could not justify subsequent retribution against a bona fide buyer of the property in question.”

The Court also noted that the applicant was deprived of her title to the flat without any compensation or housing equivalent to her flat due to the mistake made by the State authorities during privatization of the flat by Ms. Ye. In this respect the Court pointed out that “the risk of any mistake made by the State authority must be borne by the State and the errors must not be remedied at the expense of the individual concerned.”

With respect to Article 8 of the Convention the Court provided the following reasoning:

1. According to the Court’s case-law any interference with an applicant’s right to respect for his or her home must be based on the law and be proportionate to the legitimate aim pursued.

2. The Court accepted that the eviction was lawful (under a domestic law it is an automatic consequence of termination of ownership) and pursued a legitimate aim.

3. However, the eviction order did not meet the proportionality requirement. The Court noted as follows:

“The Court also attaches weight to the fact that the applicant’s home has been repossessed by the State, and not by another private party whose interests in that particular flat would have been at stake (see Orlić, cited above, § 69). The allegedly intended beneficiaries on the waiting list were not sufficiently individualised to allow their personal circumstances to be balanced against those of the applicant. In any event, no individual on the waiting list would have had the same attachment to the flat as the applicant, or would hardly have had a vested interest in that particular dwelling, as opposed to a similar one.”

Moreover, the Court was also convinced that the applicant would not be provided with accommodation when she had to move out.

Case of Svetlana Gladysheva is not the only one

As follows from the text of the ECHR judgment the applicant’s case is not the only one.[3] According to the Moscow City Ombudsman there are a growing number of cases where flats were repossessed by the City of Moscow against bona fide buyers due to fraudulent privatisation by the previous owners of the flats. In all of these cases the bona fide owners were denied any compensation or substitute housing. Gladysheva’s case may bring hope to all these bona fide buyers who were victims of the Moscow authorities’ actions. Many other bona fide buyer that face eviction or have been evicted already can refer to the ECHR judgment in Ms. Gladysheva’s case to defend their rights before the national courts or in the ECHR.

[1] The full text of the judgment can be found at the official site of the Court in its HUDOC database.

[2] Article 302, paragraph 1: “If the property has been purchased for a price from a person who had no right to alienate it, and the acquirer is unaware and could not have been aware (the bona fide acquirer, or the acquirer in good faith), the owner shall have the right to reclaim this property from the acquirer, if the said property was lost by the owner or by the person into whose possession the owner has passed the property, or if it was stolen from one or the other, or if it has left their possession in another way, in the absence of intention on their part to divest themselves of it.”

[3] See paragraph 33 of the judgment.

Novaya Gazeta calls for your signatures to help Natalya Gulevich

2011-11-17T19:11:00.000-05:00

Today Novaya Gazeta, a Russian newspaper, urged everyone who cares about the fate of Natalya Gulevich and the rule of law in Russia to leave their signature on its site, thus requiring Russian courts to release Gulevich from police custody on parole or subject to payment of a reasonable bail.

Natalya Gulevish was charged with fraud for an alleged failure to repay a loan to Nomos-Bank. She was arrested and has been held in police custody for almost a year, despite Russian law prohibiting the arrest of suspects charged with economic crimes. Due to the poor conditions of her detention, Gulevich has suffered several serious chronic illnesses, including neurogenic bladder. Notwithstanding her poor health conditions and order of the ECHR to release her immediately, the Russian domestic courts have continued to extend her detention in custody.

As a result, since March 2011, Gulevich has had to use a catheter. However, taking into account the unsanitary conditions of her detention, prolonged use of the catheter may result in an infection of the kidneys or their complete failure leading to death. Natalya Gulevich needs urgent medical treatment to restore her bladder function, which is impossible to do in police custody which lacks the necessary medication and expertise.

You can sign up for release of Natalya Gulevich from police custody by following this link http://www.novayagazeta.ru/inquiries/2.html and filling in a form below an article.

For more information about Gulevich case see my previous posts of 2 November 2011 and 8 November 2011.

Russia lost three cases in the ECHR this week

2011-11-13T18:46:00.002-05:00

On 8 November 2011 the ECHR delivered three judgments in cases against Russia: Filatov v. Russia, Sambiyeva v. Russia and Yakubov v. Russia.[1] In all three cases the ECHR found violations of the Convention and ordered Russia to pay the applicants compensation for pecuniary damage (in case of Sambiyeva), non-pecuniary damage (in cases of Filatov and Sambiyeva), and costs and expenses (in cases of Sambiyeva and Yakubov) totaling to 86,615 Euros.

Case of Filatov

The first case of Filatov v. Russia concerns ill-treatment in police custody and the lack of effective investigation into the incident. The applicant was charged with an aggravated murder and robbery and subsequently convicted of the mentioned crimes. He is currently serving an 18-year prison sentence.

In November 2002 the applicant was arrested and took to a police station for questioning. The applicant alleged that during his questioning policemen beat him, applied electric shock to him and put a bag over his head to suffocate him. Later, on the day of the questioning, a forensic medical expert found multiple bruises and abrasions on the body of the applicant. A few days later the applicant was released from detention and underwent hospital treatment for a brain concussion and other injuries. The applicant complained about the beatings to the regional prosecutor, but the investigative authorities had refused to initiate criminal proceedings against the alleged perpetrators several times.

Referring to Article 3 (prohibition of inhuman and degrading treatment) of the Convention, the applicant complained about ill-treatment in police custody and inadequate investigation into his complaint by domestic authorities. The Court sustained all the claims of the applicant and ordered the Russian Government to pay the applicant 18,000 Euros for non-pecuniary damage. The reasoning of the Court’s findings is very similar to the ones given in the previous cases concerning ill-treatment in Russian police custody. [For more information about such cases see my previous posts of 3 November 2011, 1 November 2011 and 22 October 2011.]

Case of Sambiyeva

The second case of Sambiyeva v. Russia concerns abduction, forced disappearance and unacknowledged detention in Chechnya. The applicant is a Russian citizen who lives in Chechnya. She has not seen her son since August 2003. At that time her son worked for the Security Service of the Chechen President. On 13 August 2003, he and his colleague were going by taxi to the village of Makkhety. On their way to this village their taxi was stopped at a checkpoint by military servicemen. After that they were detained and taken to the military unit in the village of Khatuni.

On 25 August 2003 the colleague of the applicant’s son was released from detention. He alleged that both he and the applicant’s son had been detained in pits in the ground filled with water. Shortly before his release he had seen the applicant’s son, who allegedly had been beaten and could barely speak. The military servicemen told the colleague of the applicant’s son, that the latter would be released on the following day.

The Russian Government did not dispute the facts as presented by the applicant and confirmed that both the applicant’s son and his colleague were stopped by the military servicemen and then taken to the military unit stationed in Khatuni. While the colleague of the applicant’s son had been released later, the fate of the applicant’s son remains unclear.

The applicant applied to different authorities in Chechnya to find out information about her son. Though the investigation into her son’s disappearance had been opened, the investigation had been suspended and restarted several times, and to date the applicant has not received any information on its progress.

The applicant alleged violations of Article 2 (right to life), 3 (prohibition of inhuman and degrading treatment), 5 (right to liberty and security) and 13 (right to an effective remedy) of the Convention. Particularly she complained that her son had been abducted, unlawfully arrested and eventually killed by Russian servicemen in Chechnya, that no effective investigations had been carried out into this matter, that she had suffered as result of her son’s disappearance, and that she had no effective remedy in respect of her complaint.

The ECHR sustained all the claims of the applicant and ordered the Russian Government to pay the applicant 12,000 Euros for pecuniary damage, 50,000 for non-pecuniary damage and 4,815 Euro for costs and expenses. The reasoning of the Court’s findings is very similar to the ones given in the previous cases concerning forced disappearances in Chechnya. [For more information about such cases see my previous posts of 3 October 2011 and 27 September 2011].

Case of Yakubov

The third case of Yakubov v. Russia concerns extradition of the applicant to Uzbekistan. The applicant is an Uzbek national. He is suspected of being a member of a banned transnational Islamic organization, Hizb ut-Tahrir (HT), and is on a wanted list in Uzbekistan. The applicant arrived in Russia in May 2009 and is currently residing in Ryazan City (Russia). Since his arrival to Russia he has had several extradition proceedings and has been refused asylum. In February 2010 an expulsion order was issued against him. After that the applicant applied to the ECHR. As an urgent interim measure the Court requested Russia, under Rule 39 of the Rules of the Court, not to extradite the applicant to Uzbekistan until further notice.

The applicant alleged in its complaint that, if extradited to Uzbekistan, he would be at real risk of ill-treatment, since he is suspected of being a member of HT. He claimed that there was “the widespread practice of the use of torture against detainees and persons suspected of membership of proscribed religious organizations” in Uzbekistan, confirming his allegations with independent reports of human rights organizations and the United Nations. The applicant referred to violation of Article 3 and Article 13 of the Convention.

The ECHR found no breach of Article 3 in the present case, since the applicant had not bee extradited yet. However, it held that the execution of the expulsion order against the applicant would give rise to a violation of Article 3 of the Convention. In this respect the Court advised the Russian Government not to expel the applicant until the present judgment becomes final or further order of the Court.

The Court found Russia responsible for violation of Article 13 of the Convention, since “the courts failed to rigorously scrutinize the applicant’s claims that there was a risk that he would be ill-treated in the event of his expulsion to Uzbekistan.”

As to the compensation, the ECHR ordered Russia to pay the applicant 1,800 Euros for costs and expenses.

According to Russian legal professionals the case of Yakubov is not the only one involving asylum seekers. Many other citizens of Uzbekistan arrive to Russia to seek asylum, since they are prosecuted in Uzbekistan for being members of proscribed religious organizations, such as HT. Human rights activists believe that prosecution of asylum seekers by Uzbekistan authorities, as well as their extradition by Russian authorities back to Uzbekistan is usually conducted as part of anti-terrorism and anti-extremism efforts. However, according to human rights advocates, this is only an imitation of such efforts, since most of the persons prosecuted for the membership in HT have nothing to do with this organization at all.

[1] The full text of these judgments can be found at the official site of the Court www.echr.coe.int in HUDOC database.

Natalya Gulevich could not pay a bond of 100 million rubles for her release

2011-11-08T22:00:00.000-05:00

On 7 November 2011 the Moscow City Court ordered that the detention of Natalya Gulevich be extended until 2 December 2011, since she could not pay a bond of 100 million rubles (approximately 3,400,000 USD) by 7 November 2011, reports Izvestia.

Natalya Gulevish was charged with fraud for alleged failure to pay back the loan to Nomos-Bank that she took acting as a director of her company. She was arrested and has been held in police custody for almost a year, though Russian law prohibits the arrest of suspects charged with economic crimes. Because of the poor conditions of her detention, Gulevich suffered several serious chronic illnesses that require urgent treatment in a specialized hospital. However, Russian courts keep extending Gulevich’s detention in custody. For more information about Gulevich case see my previous post.

After several unsuccessful domestic proceedings regarding her detention, Gulevich’s attorneys lodged an application with the ECHR, which ordered Russia to release Gulevich immediately due to her poor health conditions. As a result of the ECHR order, on 2 November 2011 the Moscow City Court decided to release Gulevich from police custody upon the payment of a bond of 100 million rubles by 7 November. Practically Gulevich had only one day to fulfill this condition, since November 4th was a public holiday and November 5th and 6th was a weekend. Since she could not gather and pay this amount, which was practically unrealistic to do within one working day, the domestic court cancelled its order on her release and extended her detention until 2 December 2011.

Russian human rights activists are afraid that Natalya Gulevich may repeat the fate of Sergey Magnitsky and Vera Trifonova, that were also charged with economic crimes and eventually died in police custody due to serious illnesses and lack of medical assistance in detention. According to Izvestia, the human rights activists also insist that the court must release Gulevich without imposing any payment obligations on her.

A seminar on exercise of the right to freedom of assembly

2011-11-06T11:32:00.000-05:00

On 19 November 2011, a Russian NGO, “Lawyers for Constitutional Rights and Freedoms” is conducting a seminar “Exercise of the Right to Freedom of Assembly.” The seminar will be held in Moscow, Russia.

This event is open to anyone interested in this topic.

The seminar program:

- Application of Federal Law № 54-FZ "On Assemblies, Meetings, Demonstrations, Processions and Pickets";
- Strategy and mechanisms to protect the rights to freedom of assembly in Russia;
- The standards of the European Court of Human Rights on freedom of assembly;
- Guidelines of OSCE on freedom of peaceful assembly and freedom of expression.

Applications for participation in the seminar should be sent by November 7, 2011 to: jurix.event@gmail.com. Applications should contain the full name, company name (if you represent an organization), e-mail address, and telephone number (optional).

The exact time and location depend on the number of participants and will be announced to participants later (10 November).

Contact telephone: +7 (495) 981-13-18.

For more information about the NGO “Lawyers for Constitutional Rights and Freedoms” please follow the link.

The ECHR judgments in the cases of Alexandra Dmitriyeva v. Russia and Vanfuli v. Russia

2011-11-03T21:19:00.002-04:00

Today the ECHR delivered two judgments involving ill-treatment by Russian police, the cases of Alexandra Dmitriyeva v. Russia and Vanfuli v. Russia. In my previous post dated 1 November 2011 I discussed the likely results of these cases, stating that the ECHR would sustain most of the applicants’ claims. As can be seen from the holdings of these ECHR judgments this was, in fact, the case.

Case of Alexandra Dmitriyeva:

In this case the applicant alleged violation of Articles 3 (prohibition of inhuman and degrading treatment), 5 (right to liberty and security), 8 (right to respect for private and family life) and 13 (right to an effective remedy) of the Convention. [For more information about the facts of the case see my previous post of 1 November 2011].

The ECHR sustained all the claims of the applicant and held that there had been a violation of:

1. The substantive aspect of Article 3 of the Convention on account of the way in which the applicant was arrested and brought to the police car on 8 December 2001.

The Court made this conclusion based on the applicant’s version of the events, since the Russian Government failed to discharge its burden of proof and rebut the applicant’s allegations.

2. The procedural aspect of Article 3 of the Convention on account of the authorities’ failure to investigate properly the circumstances of the applicant’s arrest and ill-treatment.

The Court found numerous deficiencies in the domestic investigation into the alleged ill-treatment, in particular, a number of necessary investigation actions that would resolve inconsistencies in the witness statements was not conducted at the domestic level at all.

3. Article 3 of the Convention on account of the applicant’s conditions of detention on 8 and 9 December 2001.

The Court based its findings on the applicant’s submissions which coincided with the findings of the CPT[1], since the Russian Government failed to submit relevant information capable to refute the applicant’s allegations.

4. Article 5 of the Convention on account of the applicant’s arbitrary arrest and detention on 8 and 9 December 2001.

The Court found that the applicant’s arrest was neither “effected for the purpose of bringing [her] before the competent legal authority on reasonable suspicion of having committed an offence” nor could be “reasonably considered necessary to prevent [her] committing an offence or fleeing after having done so” within the meaning of Article 5 § 1 (c) of the Convention.

5. Article 8 of the Convention on account of the unlawful entry by the policemen to the applicant’s apartment on 8 December 2001.

The Court accepted that the police had entered the applicant’s accommodation within the apartment in pursuit of a suspect (her son). However, the police failed to notify a prosecutor of the incident contrary to the requirements of the domestic law. In this connection, the ECHR found that the interference with the applicant’s rights under Article 8 had not been “in accordance with the law”.

6. Article 13 taken in conjunction with Articles 5 and 8 of the Convention.

The applicant had no effective remedy to challenge the actions of the police, since most of the documents related to her arrest, detention and subsequent release have been destroyed or never existed.

The Court ordered Russia to pay to the applicant 15,000 Euros in respect of non-pecuniary damage, and EUR 550 Euros in respect of costs and expenses.

Case of Vanfuli:

In this case the applicant alleged violations of Articles 3 and 6 (right to a fair trial) of the Convention. [For more information about the facts of the case see my previous post of 1 November 2011].

The ECHR sustained the majority of the claims of the applicant and held that there had been a violation of:

1. Article 3 of the Convention on account of the authorities’ failure to investigate properly the circumstances of the applicant’s ill-treatment.

The Court found numerous deficiencies in the domestic investigation into the applicant’s alleged ill-treatment, in particular, the late institution of proceedings in connection with his complaints.

2. Article 6 § 3 (c) taken in conjunction with Article 6 § 1 of the Convention on account of the absence of a lawyer while the applicant was in police custody.

The Court concluded, inter alia, that “even though the applicant had the opportunity to challenge the evidence against him at the trial and subsequently on appeal, the absence of a lawyer while he was in police custody irretrievably affected his defence rights.”

3. Article 6 § 3 (d) taken together with Article 6 § 1 of the Convention on account of the fact that his conviction was to a decisive event based on evidence he could not challenge.

The applicant’s conviction was based on the pre-trial statements of witnesses whom the applicant had no possibility to question.

The Court did not find a violation of Article 3 of the Convention under its substantive limb (the alleged beatings of the applicant by police while in custody). The Court considered that the evidence before it submitted by both parties did not meet the standard of proof “beyond reasonable doubt”.

The ECHR ordered Russia to pay to the applicant 6,000 Euros in respect of non-pecuniary damage.

[1] European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

A gravely ill Russian business woman, Natalya Gulevich, has to pay 100 million rubles to be released from police custody

2011-11-02T20:12:00.000-04:00

Today the Moscow City Court made a decision to release a gravely ill Russian business woman, Natalya Gulevich, from police custody provided that she pays a bond of 100,000,000 rubles (approximately 3,400,000 USD) before 7 November 2011, reports Radio Svoboda.

Natalya Gulevish was charged with fraud. Allegedly, as the director of her company, she took a loan from Nomos-Bank and failed to pay it back. Her defense attorneys claim that Gulevich was a victim of “raider attacks.” Thus, allegedly the affiliates of Nomos-Bank seized the buildings owned by her company and located in the center of Moscow with a total market value about 120,000,000 USD. As a result she was arrested and has been held in police custody in Moscow for almost a year, regardless of the direct prohibition of the Russian law to hold suspects charged with economic crimes.

At the time of her detention, Gulevich suffered several serious chronic illnesses such as neurogenic bladder, which requires a catheter, spinal hernia, and high blood pressure which creates the risk of a stroke. Additionally, her uterus has been removed. Doctors claim she needs treatment in a specialized hospital. However, neither her serious illnesses nor the requirements of Russian law prohibiting the detention of suspects charged with economic crimes could stop Russian courts from extending Gulevich’s detention in custody several times.

In the beginning of October 2011 Gulevich’s attorneys lodged an application with the ECHR after which the ECHR urgently ordered Russia to implement an interim measure in this case, namely to release Gulevich immediately. The ECHR also asked Russia to explain why Gulevich was taken into custody after the entry into force of the Russian law prohibiting detention of suspects charged with economic crimes.

As a result of the ECHR order to apply urgent interim measures in the Gulevich case, the Moscow City Court delivered a decision today in which it held that Gulevich could be released from police custody upon the payment of a bond of 100 million rubles by 7 November. Taking into account that 4 November is a public holiday in Russia and that 5 and 6 November is the week-end, Gulevich would have to deposit this amount not later than 3 November in order to be released. Thus, the court gave her only one day to fulfill this condition, which is unrealistic, taking into account that her husband is a military retiree with a pension of 11 thousands rubles per month.

Given the above, the Moscow City Court decided to take formalistic approach towards implementation of the ECHR’s interim measures by showing its readiness to release Gulevich and admitting that her detention is illegal, but at the same time setting such conditions for her release that are impossible to fulfill in practice.

Earlier the Court has ordered Russia to implement similar interim measures in the case of Aleksanyan v. Russia. However, Russia failed to comply promptly with the Court’s order which resulted later in the applicant’s death (for more information about this case see my post of 4 October 2011).

More ECHR judgments concerning ill-treatment by Russian policemen are forthcoming

2011-11-01T19:18:00.001-04:00

This week on 3 November 2011, the ECHR will deliver 2 judgments in cases of Aleksandra Dmitrieva v. Russia (App. No. 9390/05) and Vanfuli v. Russia (App. No. 24885/05)[1]. Both applicants alleged, inter alia, violations of Article 3 (prohibition of inhuman and degrading treatment) of the Convention due to ill-treatment by the police and the lack of effective investigations of the incidents.

Aleksandra Dmitrieva is a Russian national from St. Petersburg. She is in her sixties and disabled. On 8 December 2001 she was allegedly beaten by policemen who had come to her flat to question her son when she tried to block the door to her son’s room. After that she was taken to the local police station where she spent about 20 hours without food, a bed, or any medical assistance. After she was released, she was not brought before a judge or otherwise interrogated. Besides ill-treatment by the police, the applicant complained about the conditions of the cell for the detainees referring to Article 3 of the Convention. She also alleged that her arrest and detention were in violation of Article 5 (right to liberty and security) of the Convention, and that the police entry into her flat violated her right to respect for private and family life guaranteed by Article 8 of the Convention. The applicant also claimed a violation of Article 13 (right to an effective remedy).

The second applicant, Vladimir Vanfuli, is a Russian national born in 1974. He lives in the Zabaykalskiy Region. He was charged with some motorway robberies. The applicant claimed ill-treatment while in police custody, namely: that on 3 October 2002 policemen allegedly beat him in order to make him confess to committing the above mentioned crime. In August 2004 the applicant was convicted of aggravated robbery and sentenced to nine years’ imprisonment. Besides the ill-treatment in police custody, the applicant claimed that there was a violation of Article 6 (right to a fair trial) of the Convention due to several shortcomings of the criminal proceedings against him.

In both cases the applicants referred to the events that took place in 2001-2004, a period when reform of the criminal procedure was in its initial stage and major reforms concerning police and detention conditions had not been adopted yet in Russia. In this connection I do not exclude that the ECHR may sustain the majority of the applicants claims. The findings of the ECHR in both cases will be published later this week on the site of the blog.

[1] According to the information published on the official site of the ECHR: http://www.echr.coe.int/echr/Homepage_EN

Excessive use of firearms by Russian railway guards against mentally ill man resulted in amputation of his leg

2011-10-27T21:47:00.000-04:00

Today the ECHR delivered its judgment in the case of Naboyshchikov v. Russia related to the excessive use of force against a mentally ill man resulting in his partial disability and considerable psychological distress and to the lack of effective investigation into this matter by Russian authorities. The Court unanimously found Russia responsible for a violation of Article 3 of the Convention (prohibition of torture and inhuman or degrading treatment) and ordered Russia to pay the applicant 23,000 euros (EUR) in respect of non-pecuniary damage.

Facts of the case

The applicant suffered from a manic mental disorder. Allegedly on 2 October 2003 he saw a road police inspector being bribed for permitting the number of cars to enter a restricted-access zone. He also believed that the railway guards were aiding terrorists. On the same day he demanded the guards stop letting the cars through. However, no action followed after that. In this connection the applicant decided to investigate himself why certain cars were allowed to pass through the restricted zone.

At 2 a.m. on 3 October 2003 the applicant accessed the restricted territory of the guarded zone. He admitted that he might have tried to set fire to the car of one of the guards, who later apprehended the applicant. After that, the applicant was searched and taken to the guardroom, where he was allegedly brutally beaten. One of the guards also fired several shots hitting a fire extinguisher which discharged its foam. After the foam had settled down that guard returned to the guardroom and severely wounded the applicant by firing two rifle shots at his legs, as a result of which one of the applicant’s legs was amputated.

According to the Government’s submissions, the guard fired the shots at Mr. Naboyshchikov’s legs in self-defense since the latter threatened him with a knife after he re-entered the building. Meanwhile, the applicant alleged that the guard had planted a knife in the guards’ quarters to support his argument that the applicant had attacked him.

A few days later, a criminal investigation was opened on account of the serious bodily harm suffered by the applicant. However, after a year and several months criminal proceedings were eventually terminated for lack of corpus delicti.

The applicant complained under Article 3 of the Convention that he had been tortured by the railway guards and that the domestic authorities had failed to carry out an effective investigation into this matter.

Court’s findings

The Court sustained the applicant’s claims and held Russia responsible for violation of Article 3 of the Convention on account of: (1) “the excessive use of firearms against the applicant”, and (2) “the authorities’ failure to carry out an effective investigation into the applicant’s complaints of ill‑treatment”. The Court also found that there had been no violation on account of the applicant’s alleged beating, since the Court was not in possession of any medical documents capable of proving that that applicant’s health problems had been the direct result of physical force applied by the railway guards.

The Court sustained its findings with the following reasons:

Excessive use of force

First, given that the guard belonged to an authority that was part of the Russian law enforcement system and that he had committed the act of violence in performance of his duties, the Court held that the Russian Government was responsible.

Second, the Court considered that, “given the serious nature and the circumstances of the applicant’s injuries,” the burden of proof rests on the Russian Government to demonstrate beyond a reasonable doubt that the use of firearms against the applicant was justified in the circumstances of the case.

Third, though the Court admitted that Article 3 did not “prohibit recourse to physical force by security agents during an arrest or other security operation,” it also noted that such force must meet necessity and proportionality requirements.

Finally, having analysed the evidence submitted by the parties, the Court was not convinced that the use of force by the railway guards was not excessive. Thus, the ECHR noted:

“As can be seen from the authorities’ description of the events, after the unsuccessful first attack by the applicant, S. chose to return to the building, putting himself at risk of another attack, which he then presumably had to repel by firing at the applicant’s legs (see paragraph 11 above). Neither the findings of the domestic investigation nor the Government’s subsequent submissions explain why this line of behaviour on the part of a professionally trained security guard was necessary, nor do they explain why the first shot was not sufficient.”

Given the above and the extent of the applicant’s injuries, the Court found that the applicant was subjected to inhuman and degrading treatment contrary to Article 3 of the Convention.

Lack of effective investigation

The Court recognized that a criminal investigation into the incident was opened immediately and that most of the essential investigative actions were carried out within three months of the incident. However, the Court also found several important omissions and inconsistencies in the investigation, undermining its credibility, such as:

- the lack of an attempt to explain why the guards could not find the knife, with which the applicant allegedly threatened the life of the guard, during the bodily search of the applicant;

- the investigation authorities failed to examine the knife for fingerprints;

- the amputated leg, a crucial piece of evidence, was disposed of in a careless manner at the time when the investigation was already under way;

- the investigation authorities neglected the applicant’s complaint that he had been beaten by the guards;

- the applicant had no opportunity to dispute the above omissions, having been denied the status of victim on numerous occasions.

Judging from the above, the Court found that the Russian authorities failed to conduct an effective investigation into the applicant’s injuries and thus violated Article 3 of the Convention.

Conclusion

The problem of ill-treatment by law enforcement officers was named by the Parliamentary Assembly of the Council of Europe as one of the systemic problems in Russia, which seriously undermine the rule of law. It was first discussed by the Court in January 2006 in the case of Mikheyev v. Russia. Since then the Russian authorities have adopted a number of reforms of the Ministry of the Internal Affairs. For more information on the measures taken by the Russian Government to alleviate the problem of the ill-treatment by the law enforcement officers see my previous post of 22 October 2011.

However, the Council of Europe was not convinced in the effectiveness of the said reforms. Russian legal experts are of the same opinion. Thus, in her interview to Vzglyad newspaper, Elena Lukianova, a law professor at Moscow State University, pointed out that it was too early to speak about the results of the reforms at issue and that Russian citizens still complain about corruption and unprofessionalism of law enforcement authorities. Ms. Lukianova also noted that it might take several years to see the first positive results of the reforms at issue. In this connection, we may expect more ECHR judgments in favor of the applicants in cases involving ill-treatment by law enforcement officers.

A member of the United Russia lost his suit against an anti-corruption blogger due to a domestic court’s reliance on ECHR case-law

2011-10-25T19:00:00.002-04:00

On 11 October 2011, Lyublinsky district court in Moscow dismissed the lawsuit of Vladimir Svirid, a member of the ruling United Russia party, against Alexey Navalny, a Russian anti-corruption blogger, as reported by Vedomosti (the link is in Russian). Judging from the court’s ruling, the extracts of which Navalny published today in his blog, the court substantiated its findings relying, inter alia, on Article 10 of the Convention (freedom of expression) and ECHR case-law, namely: Grinberg v. Russia, and Bezymyanyy v. Russia. [The full text of the court’s ruling in Russian can be found here].

Facts of the case

On 2 February 2011 Alexey Navalny called the United Russia party “a party of corruption, swindlers and thieves” and spoke negatively of the party’s activity during his on-air interview to the radio station “Finam FM.” Vladimir Svirid, a member of the United Russia party, did not agree with Navalny’s opinion and claimed that such statements insulted him and discredited his honor and dignity. In his claim, Svirid asked Navalny, inter alia, to recant his statements about United Russia on the official internet site of “Finam FM” and to pay compensation in the amount of 1,000,000 rubles (approximately 33,000 USD) as restitution for non-pecuniary damages.

Findings of the court

The court did not find any violation of Svirid’s rights and dismissed his claims relying both on national legislation and the ECHR case-law. According to national legislation, the claimant had to prove, inter alia, that the relevant statements about United Russia contained information specifically about him, which he failed to do. Thus, the court agreed with Navalny, that his statements at issue did not contain any accusation towards Svirid specifically or anybody else, rather they concerned the United Russia party and its activities as a whole.

The court also supported its findings with the relevant ECHR case-law, referring to it as the part of the national legal system according to the Constitution of the Russian Federation. First, having considered Navalny’s statements as value judgments, the court cited paragraph 30 of the ECHR judgment in the case of Grinberg v. Russia, according to which “while the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfill and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10.”

Second, as the final chord sustaining its findings the court cited paragraph 35 of the ECHR judgment in the case of Bezymyannyy v. Russia:

“According to the Court's well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for individual self-fulfillment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”.”

Conclusion

The ruling of the Lyublinsky district court deserves applause. The judge did not limit its analysis of the legal norms to the national law only, but competently applied the Convention provisions and the relevant case-law of the ECHR to the facts of the case, which rarely happens in the courts of lower instances.

It is also a perfect example of how EHCR rulings can contribute to the promotion of the rule of law via domestic courts in Russia. The ECHR alone can do little without support of the domestic authorities, especially courts that are one of the main guarantors of the rule of law. Applying the Convention provisions and ECHR case-law, the courts convey a message to the participants of the trial and all other persons that they are aware of Russia’s obligations under the Convention and are willing to respect human rights and international law.

Moreover, given the high reputation of the ECHR, the more frequent the domestic courts competently sustain their findings with ECHR case-law and the Convention, the more trust and respect they will gain among the Russian citizens.

New judgments about old problems

2011-10-22T21:00:00.002-04:00

On 18 October 2011 the ECHR delivered four judgments in the cases of Shuvalov v. Russia, Buldashev v. Russia, Cherkasov v. Russia and G.O. v. Russia.[1] In all four cases the ECHR found that Russia had violated, inter alia, Article 3 of the Convention due to either the condition of the applicants’ detention, their ill-treatment in custody, or both, and ordered the Russian Government to pay compensation to the applicants as restitution for non-pecuniary damages.

Overcrowded cells in police custody

Applicants Buldashev and G.O. (who decided not to disclose his name) were arrested, charged, and later convicted of serious crimes.[2] Pending investigation and trial they were detained in remand prisons in Russia. Both applicants complained, inter alia, that the conditions of their detention in the remand prisons were inhumane and degrading. The ECHR upheld their claims due to the following reasons:

1. The ECHR confirmed once again that guarantees of Article 3 of the Convention are provided to everyone, “irrespective of the circumstances or the victim’s behavior”. The Court also noted that Article 3 requires the State to ensure “that a person is detained under conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention.”

2. In both cases the applicants were afforded no more than 1.5 to 3 sq.m of personal space, while according to the Russian statutory requirements each inmate shall be provided with no less than 4 sq. m. In this respect the Court reiterated, that such lack of personal space was “so extreme as to justify in itself a finding of a violation of Article 3 of the Convention.” The Court supported this finding by its well-established case law with regard to Russia.[3]

3. Moreover, the applicants were confined to their overcrowded cells “day and night,” apart from an hour’s outdoor daily exercise.

4. In the case of G.O. the Court also noted that “the fact that for approximately three years and one month the applicant was obliged to live, sleep and use the toilet in the same cell with so many other inmates was itself sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.”

Ill-treatment by the law enforcement officers

Applicant Buldashev also complained of ill-treatment by law enforcement officers while in custody. The same claims were brought before the ECHR by Shuvalov and Cherkasov. Shuvalov was arrested and later charged with and convicted of drug dealing. He was detained in custody pending investigation and trial. Cherkasov was taken for a drunkard by police officers and was brought to a sobering-up cell where he spent approximately one day. All three applicants alleged that they had been beaten by law enforcement officers while in custody and that the domestic authorities had failed to investigate the matter properly. The ECHR sustained their claims providing the following reasoning:

1. The Court reiterated two principles of its case law related to Article 3:

- Strong presumptions of fact arise in respect of injuries occurring during detention in custody, and the burden of proof rests on the Government to provide “a satisfactory and convincing explanation” of how such injuries were caused; and

- Any physical force used towards a person detained in custody “which has not been made strictly necessary by his own conduct diminishes human dignity” and, in itself, violates Article 3 of the Convention.

2. In all three cases the applicants provided the Court with evidence of their ill-treatment, such as witness statements and medical reports drawn-up shortly after the alleged beatings. And though the cause and origin of bodily injuries in these cases was a disputable matter and was not confirmed by relevant medical reports, the evidence presented by the applicants created a strong presumption of fact that they were caused by law enforcement officers while in custody.

3. At the same time, in the Court’s opinion, the Russian Government failed to provide satisfactory, convincing, and undisputable proof as to the origin of the applicants’ injuries. For this reason the ECHR accepted the applicants’ version of the events.

4. According to the ECHR’s case-law Article 3 of the Convention also requires an effective official investigation where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3. In the cases of Shuvalov and Cherkasov, the Court found significant deficiencies in the investigations as listed below.

Shuvalov case:

- the applicant’s cellmates were interrogated by the alleged perpetrator himself; and

- the investigating authorities did not make any attempts to establish the cause of the applicant’s injuries or the time when they could have been inflicted.

Cherkasov case:

- the prosecutor did not launch an investigation promptly after being notified of the alleged ill-treatment and having seen the applicant in person;

- the investigating authorities did not collect evidence from key witnesses;

- the investigators failed to order medical examinations of the alleged perpetrators with a view to identifying any marks on their bodies confirming possible involvement in a recent fight with the applicant; and

- no effort was made to clarify the inconsistencies between the statements of various witnesses.

In the case of Buldashev the Court did not comment on the investigation into alleged beatings, since the Russian Government failed to provide any documents or information on the scope or the progress of the investigation, as well as to explain why the investigation has not been completed yet. However, such failure to provide the necessary information, explanations and documents by the Russian Government incited the Court to find that the authorities did not carry out an effective investigation into the applicant’s allegations of ill-treatment.

What has been done so far by the Russian Government to solve the mentioned problems?

According to the report of the Parliamentary Assembly dated 24 December 2010, unacceptable conditions of detention in pretrial detention centers, ill-treatment in police custody and the lack of effective investigation in this respect are among systemic problems in Russia, which seriously undermine the rule of law.

The first case that revealed the systemic problem related to overcrowding of cells and their other features (lack of private toilets, ventilation problems, lack of access to natural light and basic sanitation) was Kalashnikov v. Russia. The Court delivered its judgment in this case on 15 July 2002. Since then Russia has renovated and built new detention centers, as a result of which the average personal space for detainees rose to 4.85 sq.m. [Details of progress of the measures taken by Russia with respect to this problem can be found in Interim Resolution CM/ResDH(2010)35].

However, neither the Committee of Ministers nor the Parliamentary Assembly found the measures adopted by Russia so far to be effective. Thus, the Committee of Ministers in its latest Interim Resolution noted, that:

“There are still remand prisons where the number of remand prisoners exceeds the design capacity of the facilities, and the requirement of Russian legislation concerning personal space is not complied with.”

“In any event the creation of new places of detention cannot in itself provide a lasting solution to the problem of prison overcrowding, and that this measure should be closely supported by others aimed at reducing the overall number of remand prisoners” such as “changes to the legal framework, practices and attitudes.”

The Parliamentary Assembly is of the opinion that “there has been no meaningful progress” in alleviating the problem of overcrowding in Russian cells. It also added that:

“Merely building more remand centers does not solve the root problem: the problem lies in the unnecessary sentencing of detention on remand which results in overcrowding. This systemic issue is caused by, inter alia, non-compliance with time limits set by domestic law, failure to address specific circumstances of cases, failure to use alternative preventative measures and the failure to respect judicial review to challenge the lawfulness of detention on remand. In spite of progress claimed by the Russian authorities, there was a minimal decrease in detainees between January 2007 (144 550) and January 2010 (124 611) and, in 2009, 187 793 applications for detention on remand were granted out of 208 416. Conditions cannot improve with such overcrowding and there appears to be no end in sight to this situation.”

The problem of the ill-treatment in police custody by law enforcement officers was first revealed in Mikheyev case, decided by the Court in January 2006. Since the delivery of this judgment by the Court the Russian authorities have adopted a number of reforms of the Ministry of the Internal Affairs. Thus, in March 2011 a new Law “On Police” has been adopted. [For more detailed information on the general measures adopted by Russia in this respect see this link]. However, the Parliamentary Assembly was not persuaded that these reforms are effective enough to solve the problem of ill-treatment in police custody. In its report it noted, inter alia, the following:

“But it remains unclear to what extent this reform will constitute a response to the findings of the Court. It would appear at first sight that the reform does not seem to address important issues, such as safeguards in police custody (notification of custody to a third party, right to a lawyer, right to a medical doctor). Also, the CPT[4]reports, which might provide useful guidance for the Russian authorities on all these issues, remain confidential.”

Based on the above assessments of the Parliamentary Assembly and the Committee of Ministers with respect to the measures adopted by Russia to solve the systemic problems at issue, we may expect more cases against Russia concerning poor conditions in remand prisons and ill-treatment in police custody, as well as more judgments of the ECHR in favor of the applicants.

[1] Full text of the judgments can be found at the HUDOC data base on the official site of the ECHR.

[2] Buldashev was convicted of murder, fraud and misappropriation of funds. And G.O. was convicted of inflicting serious bodily harm causing the death of the victim.

[3] Andrey Frolov v. Russia, no. 205/02, §§ 50-51, 29 March 2007; Lind v. Russia, no. 25664/05, §§ 61-63, 6 December 2007; Lyubimenko v. Russia, no. 6270/06, §§ 58-59, 19 March 2009; and, more recently, Veliyev v. Russia, no. 24202/05, §§ 129-130, 24 June 2010.

[4] European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

Balancing Public Hearing with Interests of National Security and Justice

2011-10-12T20:49:00.000-04:00

On 11 October 2011 the ECHR delivered judgments in the cases of three Russian females, Ms. Nevskaya, Ms. Raks and Ms. Romanova, all of whom had been convicted of possession of explosives and terrorism. The Court ordered Russia to pay compensation to the applicants for violation of their rights guaranteed by the Convention.

The applicants were arrested in 2000 on suspicion of their involvement in explosions in 1998 and 1999: the explosion that destroyed the monument to Tsar Nicolas II in Podolsk, Moscow Region, and explosions in Moscow that damaged the façade of the Federal Security Service (FSB). In May 2003 the Moscow City Court convicted the applicants of possession of explosives and terrorism. Each of the applicants was sentenced to several years of imprisonment. [The facts of the case are described in more detail in the Court’s judgments in the cases of Nevskaya, Raks and Romanova]

All three applied to the ECHR and claimed, inter alia,[1] that Russia violated their right to a fair trial since the court proceedings against them had not been conducted in public. The Court sustained this claim in all three cases, since the Russian Government failed to convincingly show that the national security concerns and justice interests justified the exclusion of the public from the trial in the domestic court. The Court ordered Russia to pay 4,800 euros to both Nevskaya and Raks, and 20,000 euros to Romanova (since in her case Russia also violated Article 5 of the Convention (her detention did not meet the requirements of lawfulness)).

The ECHR’s reasoning:

According to the case file, the domestic court ordered to exclude the public from the criminal proceedings due to: (a) the need to ensure the security of the trial participants, (b) the nature of the charges of the applicants, and (c) the “secret” status of the case file. The ECHR disagreed with such reasoning based on the following grounds:

(a) Safety of the trial participants: The ECHR noted that the domestic court failed to explain why it was concerned about the safety of the certain persons, and why these safety concerns “outweighed the importance of ensuring the public nature of the trial.”

(b) Gravity of the charges: According to the Court, the gravity of the charges by itself cannot evidence existence of a danger the defendants may present to other parties to a trial, and therefore cannot justify closure of the entire trial to the public. The presence of such danger and necessity to hold the trial in camera can be confirmed only by assessment of the gravity of the charges together with other relevant factors. The ECHR found that the domestic court failed to make such assessment and to give reasons why it considered “the risk to the safety of the ‘participants’ to be decisive.”

(c) “Secret” information in the case-file: The ECHR stated that “the mere presence of such information in a case file” cannot automatically imply “a need to close a trial to the public, without balancing openness with national security concerns.” Thus, the domestic court failed to take “any measures to counterbalance the detrimental effect that the decision to hold the trial in camera must have had on public confidence in the proper administration of justice for the sake of protecting the State’s interest in keeping its secrets.” In the ECHR’s view, instead of closing the entire trial to the public the domestic court could have ordered a single or a number of non-public sessions to deal with “secret” documents, which it failed to do.

Thus, judging from the ECHR findings, the main flaw of the Moscow City Court decision on closing the trial to public was the lack of relevant explanations and justifications. Had the domestic court delivered a more reasoned and well-founded decision, the ECHR would likely not have found a violation of the right to a fair trial in the applicants’ cases.

[1] The applicants also presented other complaints under Articles 3, 5, 6, 8-11, 13 and 18 of the Convention. However, the Court either found their complaints inadmissible or found no violation, except in the case of Romanova v. Russia, where the Court also found a violation of article 5 of the Convention.

The CIS Human Rights Court: a possible alternative to the ECHR?

2011-10-05T18:20:00.002-04:00

Today Alexander Torshin, a Russian Senator, came forward with an initiative to set up the Commonwealth of Independent States (CIS) Human Rights Court, reported Interfax and Gazeta.ru.

According to Torshin the CIS court should be analogues to the ECHR. The Senator named the following advantages of the CIS Human Rights Court over the ECHR: (a) the applicants to the CIS court will not need translator’s assistance, since the majority of them have a good command of the Russian language; (b) the CIS court will be of a better quality than the ECHR, since during its set-up all the “bottlenecks and problems” of the ECHR will be taken into account; and (c) the CIS court will help relieve the ECHR which is currently overloaded with applications.

According to Torshin, the CIS Court will not replace the ECHR, but rather will be an alternative: the applicants will be able to choose between the two of them.

The head of the Justice Ministry of the Russian Federation, Alexander Konovalov, welcomed this initiative, but noted that it needed further elaboration, and that he wished to understand if there is a necessity for such a CIS court right now.

Torshin also noted that his idea was not new. In 1993 the CIS member states endorsed a Statute of the CIS Human Rights Commission the main function of which is to ensure observance of the CIS Convention on human rights and fundamental freedoms by the member states. However, this commission has never worked since adoption of its Statute.

Meanwhile, to date there are eleven Member-states of the CIS,[1] and only four of them have ratified the CIS Convention on Human Rights and Fundamental Freedoms (Russia, Belarus, Tajikistan, and Kyrgyzstan). Others hesitate to sign it, especially those that are also members to the Council of Europe, since the latter has criticized the CIS Convention several times.

Thus, in 1998 the Venice Commission[2] concluded that the fundamental rights set forth in the CIS Convention “are generally more limited in scope than the corresponding rights” under the European Convention on Human Rights and Fundamental Freedoms, “which affords higher standards of protection.” In addition, the Venice Commission stated, that the guarantees provided by the Convention system “are more complete than those provided by the CIS Convention.”

Further, in 2001 the Parliamentary Assembly of the Council of Europe recommended to those Council of Europe member-states which are also the CIS members[3] “not to sign or ratify the CIS Convention on Human Rights,” since the latter offers less protection than the European Convention on Human Rights and Fundamental Freedoms, “both with regards to the scope of its contents, and with regard to the body enforcing it.”

What if Torshin’s idea is supported and the CIS Court is set up, will it be able to gain the same trust and popularity as the ECHR among the applicants? Insofar as the applicants from Russia are concerned, they will most likely prefer the ECHR over the CIS Court, at least for two reasons:

(1) Even if the CIS Court is of better quality than the ECHR, the former will apply lower standards of protection of human rights in its judgments than the latter, since the rights under the CIS Convention are more limited in scope than those under the European Convention on Human Rights; and

(2) The ECHR has gained a reputation as the court of last resort among the Russian citizens, while the CIS Court most likely will not be taken seriously due to the doubtful character of the CIS itself and the lack of interest in this organization among Russian citizens.[4]

[1] Armenia, Azerbaijan, Belarus, Moldova, Kazakhstan, Kyrgyzstan, Russia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan.

[2] The Venice Commission, also known as the European Commission for Democracy through Law, is the Council of Europe's advisory body on constitutional matters.

[3] To dated there are five members of the CIS that are also members of the Council of Europe: Armenia, Azerbaijan, Moldova, Russia, and Ukraine.

[4] For more information about the attitude of Russian citizens to the CIS see http://bd.fom.ru/report/cat/blocks/FSU/gur050408 (In Russian).