By James Kimer
It’s no secret that Russia’s legal system has problems. Faced with a deeply ineffective, corrupt judiciary, many citizens find themselves in desperate situations, looking outward toward international legal forums to settle disputes, file lawsuits, and seek redress for a variety of human and civil rights claims. Overwhelmingly this glut of legal applications find their way into the European Court of Human Rights in Strasbourg, France, where a backlog of some 140,000 cases (with approximately 40,000 cases originating from Russia) strains the capacity of this unique court system.
And yet despite the long waits for rulings and the procedural headaches, the ECHR is having a transformational impact on judicial affairs in Russia by delivering accountability and exposing the impunity enjoyed by influential parties before the local courts. But the burning question is whether this trend will continue, gradually instilling a rule of law culture and challenging legal nihilism in Russia, or if the discomfort of foreign legal liability will prompt sectors of the administration to disengage from the system.
What is certain is that the influence of foreign courts in Russia is on the rise. Writing in the New York Times, law professor Alan Riley goes so far as to describe the ECHR as an outsourced version of Russia’s supreme court, pointing out that Russian lawyers have even begun crafting their arguments before local commercial courts to make a case in Strasbourg, thereby creating pressure on the judicial authorities to comply with European standards.
There have already been a number of landmark rulings on hot political issues in Russia by the ECHR, with many more waiting in the queue. In February 2005, the court ruled that the Russian military had violated several articles of the European Convention of Human Rights in the Second Chechen war, and later ruled that the Russian military was responsible for multiple disappearances of civilians and instances of torture in the region. One of the most controversial rulings of the court for Russia was that of Vasily Kononov v. Latvia, which concerned the human rights conviction of a WWII Russian war hero – the European Court backed Latvia; a decision which greatly angered some Russian politicians.
What is troubling at times for the Russian establishment is not that the ECHR challenges the country’s recent and not-so-recent history, but at times opens up public debate and exposure of evidence that impacts current figures within the government. The court is not limited to war crimes, but addresses a wide range of issues: the unlawful dissolution of political parties, unpaid pensions, judicial failures such as the murder of Anna Politkovskaya, and the banning of public demonstrations.
Observers say that the Russian government tends to lose about 95% of these rulings, and that they usually quickly comply with the legal obligation to pay the victims whatever financial penalty assigned by the court. Actually changing their conduct, of course, is an entirely different matter, and on one level Russia’s ongoing submission to a supra-national legal body represents only a minor financial inconvenience, but not a real threat to the power structure and their preferred methods of governance.
And then along came Yukos and its discontents, posing a stress test to Russia’s European commitment. Quite a number of cases have been filed by both Yukos defendants, such as Mikhail Khodorkovsky and Platon Lebedev, as well as a staggering $98 billion claim from former Yukos shareholders (which is separate from Khodorkovsky and Lebedev). In 2007 the court ruled that Russia violated the law during Lebedev’s pre-trial detention, finding that they detained him illegally, denied access to counsel, and that hearings were conducted on his case without his attorneys present, that proceedings were unlawfully delayed and the appeal process obstructed. Earlier this year the ECHR also ruled that many aspects of Khodorkovsky’s detention violated the law, ordering Russia to pay $35,000 to the famous political prisoner. Although the media misreported the ruling as somehow absolving the Kremlin of political motivations behind the charges, the actual text of the decision makes it clear that there was no lack of evidence, only procedural technicalities.
It is one thing to pay a few hundred euros to military employees over paternity leave, or even stumping 150,000 euros to the families of disappeared Chechens presumably executed by the army. It’s quite another thing to come up with $98 billion, and lose the legal title to the assets that make up most of the value of Rosneft, especially following multiple launderings through the 2006 initial public offering and the upcoming privatization of shares.
As the Russian leadership begins to experiment with some steps at the legislative level to escape responsibility before select ECHR rulings, a scandal is brewing. Two months ago Duma member Alexander Torshin introduced a bill that would allow Russian constitutional courts discretionary powers to override certain ECHR verdicts based around national “sovereignty.” Rights activist Oleg Orlov says the legislation is anticipatory: “They anticipate there may be decisions that will be unpleasant for Russia. A ruling might touch on some major financial questions. All this means that they need to establish some precedents and some mechanism that could limit the ruling so that they don’t have to carry it out.”
Debate of this bill has been delayed until the fall, but it is already looking like a very bad idea. First, as Human Rights Watch pointed out recently in an open letter to President Medvedev, since 1996 Russia has been a signatory to the Council of Europe and the European Convention on Human Rights. Further, any draft amendment that would propose the supremecy of national courts over international treaty is unconstitutional, as stated clearly under Article 15, Part 4.
On an economic level, too, the precedent that would be created by the passing of such a law would constitute an unnecessary, imprudent step backwards. Take, for example, Russia’s ongoing efforts to gain admission to the World Trade Organization, or its assertive maneuvers to guarantee foreign investors that their money is not only well spent in Russia, but well protected. A bill basically nullifying international judgments would send precisely the wrong message to its most valuable foreign investors. In short, everything that Russia is trying to be in projecting its identity as a social and economic modernization project would be undermined by such a move.
But the strategy is actually subtler. Many people don’t really believe that the Torshin amendments are at all serious, but are rather meant to communicate a threat that Russia would be willing to pull out of the Council of Europe – something that Brussels and other leading governments in France, Germany, and Italy do not want to happen. This political pressure has already had an impact on the court, evidenced by the gentle wording of the Khodorkovsky v. Russia decision, according to former French Minister of European Affairs Noëlle Lenoir. Writing in L’Express, Lenoir argues that it was regrettable that the Court chose to place such an impossibly high burden of proof on the plaintiff to demonstrate political motivations, however it is just as illuminating that they did not dispute other courts’ conclusions, such as the Swiss Federal Tribunal, that Khodorkovsky was politically targeted.
Whether Russia chooses to escape its obligations before the ECHR through draft amendments, bullying particular decisions, or a wholesale withdraw from the treaty, they are all temporary solutions to an ongoing problem. If the government wants to put an end to more than 40,000 claims (and growing) before this court, then they should do it the hard way, and begin creating the sufficient judicial independence for the national legal system to successful deliver justice to citizens, even if once in a while the state loses a case.
James Kimer is a social media representative of the Khodorkovsky Center (http://www.khodorkovskycenter.com)