A draft law has been submitted to the State Duma on Russia's refusal to comply with decisions of the European Court of Human Rights issued after March 16, 2022 & #8212; date of exclusion of the country from the Council of Europe in connection with the war in Ukraine.
Compensation for applicants who have won cases in Strasbourg before this date is proposed to be paid until January 1, 2023. This directly contradicts the Convention for the Protection of Human Rights and the decisions of the Council of Europe — they oblige Russia to comply with all decisions of the ECHR on violations of the rights of applicants committed before September 16, 2022.
Legalize «divorce» on May 16, four «United Russia» — they are State Duma deputy Pavel Krasheninnikov, senator Andrei Klishas and his deputy Vladimir Poletaev — heads of key committees on legislation of both chambers of parliament, as well as the Plenipotentiary of the State Duma in the Supreme Court Daniil Bessarabov.
Breaking news — the draft law provides for a deadline for the adoption by the ECtHR of decisions that Russia will agree to at least partially implement. The possibility of non-execution of ECtHR judgments was legalized back in 2020 only for exceptional cases — this required permission from the Constitutional Court.
Now Russia will ignore any decisions made after March 16th. Moreover, the authors of the bill propose to introduce this period retroactively.
Is this legal?
Convention — no. Russia is obliged to comply with all decisions of the ECHR on human rights violations committed before the denunciation of the Convention or withdrawal from the Council of Europe (CE) — even if it will take many more years to resolve such complaints.
The Committee of Ministers of the Council of Europe expelled Russia from the organization on March 16, but determined the conditions for leaving, according to which one can finally complain to the ECHR about those violations that occur within six months after the exclusion & # 8212; that is, until September 16th. The ECtHR can consider such complaints for an arbitrarily long time — There are no time limits for making decisions for him.
The day before the expulsion, the Russian Foreign Ministry announced its intention to withdraw from the CE on its own terms. Based on the letter from the Foreign Ministry and the requirements of the Convention, even voluntarily, Russia could withdraw from the Council of Europe no earlier than September 2022. This minimum term was fixed by the Council of Europe by the decision to exclude Russia.
But the explanatory note to the bill on the termination of Russia's obligations from March 16 says that the Council of Europe did not have the right to «formally-compulsory» expel Russia from the organization and dictate the conditions for withdrawal.
Since they are spelled out in the Convention only in case the Committee of Ministers itself proposes to the state to leave the organization in connection with gross violations of the Charter. Russia has not received such proposals. The authors of the Russian bill, judging by their explanations, considered this a reason not to comply with the rules of «divorce».
Since March 16, the ECHR has already issued about three dozen judgments in cases against Russia, follows from the electronic database of its decisions. Until September 16, their number may more than triple. Consideration by the ECHR is awaiting, among other things, large-scale interstate complaints by Ukraine against Russia.
Based on the draft law, the current government in Russia is not going to execute all these decisions.
Despite the fact that the refusal to execute decisions made by the ECtHR after March 16, 2022, has not yet been legalized, de facto it is already in force, the BBC was convinced.
This can be seen, for example, in similar decisions of the ECHR on the suspension of the extradition of Belarusians. The 39th rule of the ECHR allows to suspend the extradition of a person if they are threatened with torture and threats to life and health in their homeland.
Based on the application of this rule of the ECHR, on March 11, the Russian prosecutor's office released Belarusian Ivan Sautin from a pre-trial detention center at the end of April. But a similar decision against his compatriot Mikhail Zubkov, taken by the ECHR in May, was ignored by Russian law enforcement officers and extradited Zubkov to Belarus.
What about the payments?
The authors of the bill propose to pay compensation to applicants under decisions of the ECtHR issued before March 16 until January 1, 2023. In fact, this does not guarantee that all compensation will be paid. Head of International Practice, Human Rights Group «Agora» Kirill Koroteev notes that slippage with payments is already happening, a number of applicants in cases awarded before March 16 have not yet received compensation, although all the deadlines for payments have already passed, he says.
On May 10, the Department for the Execution of Judgments of the ECtHR of the Council of Europe published on its website a message stating that applicants whose cases against Russia have already been considered by the Strasbourg court can continue to provide the Committee of Ministers with information on the progress in the execution of judgments, including the payment of compensation.
< p>However, control over this process can now only be calculated in the distant future.
What about the review of sentences?
The bill also proposes the exclusion of references to the ECtHR from all Russian procedural codes. They now oblige Russian courts to review sentences and other decisions in applicants' cases if the ECtHR found them to be in violation of the Convention.
This duty, however, the courts in Russia often fulfill formally, refusing to cancel the sentences — including high-profile political cases that are recognized as unfair in Strasbourg. However, in general, the review mechanism in Russia is still in operation. Its implementation in Russian legislation was difficult and was a major victory for the Russian legal system. Now this achievement will be completely annulled.
At the same time, as Koroteev notes, legislators, excluding revision on the basis of decisions of the ECtHR, did not include decisions of the UN Human Rights Committee among such grounds, despite the fact that the Constitutional the court of the Russian Federation confirmed the appropriate force of the decisions of the UN Committee.
But that's not all. Parliamentarians propose to delete from the legislation even general references to the practice of the ECtHR. Now the basic article of the Russian law on compensation for judicial red tape requires the courts to determine it «taking into account the principles of reasonableness, fairness and the practice of the ECtHR» — that is, based on specific decisions with clearly defined payout amounts. After the adoption of the amendments, the courts will rely only on the abstract principles of «reasonableness and fairness».
Prisoners in pre-trial detention centers will lose the opportunity to freely complain to the ECtHR — now the law prohibits censorship of such complaints.
Now censorship will be banned for complaints to certain «interstate bodies for the protection of human rights and freedoms in accordance with the international treaties of the Russian Federation» — the names of such bodies are not indicated in the bill instead of the ECtHR clearly stated in the law.
Who will participate in the consideration of cases against Russia?
The Prosecutor General's Office is authorized to represent the government in cases on complaints against Russia, which the ECHR continues to consider.
But Prosecutor General Igor Krasnov said back in April, speaking in the State Duma, that his office had stopped interacting with Strasbourg. In the ECHR, this has already led to the postponement of hearings, but in general, the absence of the respondent state in the process does not prevent the court from considering the case.
According to the rules of the ECHR, in the composition of the chamber to consider a case against a state, there is a judge elected from that country. However, it is no longer always possible to observe it in Russian affairs.
In one of the most high-profile political cases — about «foreign agents» (according to the complaints of a number of NGOs about the violation of human rights by the law on «foreign agents» and its application), the permanent Russian judge Mikhail Lobov and all three «reserve» Russian judges, the list of which is specially approved by PACE in case a replacement is necessary.
Judges Andrei Bushev, Olga Vedernikova and Bakhtiyar Tuzmukhamedov did not intervene either. As a result, instead of the Russian judge, to consider the case of «foreign agents» there will be a judge from Cyprus, Georgios Sergides.
Meanwhile, today the mandate of the Russian judge of the ECtHR Lobov remains in force. Russia has no right to withdraw it.
What do the experts say?
Kirill Koroteev from «Agora» believes that Russia has no legal grounds for the submitted bills, and there is only «political insult» for exclusion from the Council of Europe.
There really were no clear formal grounds for exclusion in the Convention, so the decision of the Council of Europe was also political, according to an expert who asked to remain anonymous. But Russia does not have the right to refuse to implement the decisions of the ECtHR retroactively, and besides, before the denunciation of the Convention, he confirmed to the BBC.
An attempt by Russian parliamentarians to settle the «divorce» with the ECHR, the BBC interlocutor considers «an imitation of legality», undertaken just in case to blur personal responsibility for actions in Russia in the future.
«Expectations that the current Russian the authorities will implement the decisions of the ECtHR and now they don’t, says Koroteev. But he emphasizes that Russia remains obliged to comply with the decisions, and given inflation in Europe, the amount of compensation, including interest, will increase many times by the time of payment, which, in his opinion, will come sooner or later.
The prospect of payments on decisions The ECtHR may end up repeating the story of paying the USSR royal debts, another specialist in international law told the BBC earlier.
«Even if the complaint against Russia was filed many years ago, the applicants in if these bills are passed, we will have to wait for the execution of decisions on our cases for an indefinitely long period»,— confirms international lawyer Tatyana Glushkova.
Glushkova and Koroteev believe that the new bills concerning interaction with the ECHR also violate the Russian Constitution.