STRATEGIC IMPLEMENTATION OF THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS IN RUSSIAN COURTS
Anton Burkov*
I.	HISTORY: POLITICAL ACCESSION OF THE RUSSIAN FEDERATION TO THE COUNCIL OF EUROPE
On 28 February 1996, the Russian Federation was allowed to accede to the Statute of the Council of Europe without meeting all the requirements for the member States. The accession followed “an extensive debate within the Council of Europe about the suitability of the applicant for membership.” Russia’s acceptance occurred despite an unfavourable ad hoc Eminent Lawyers Report, which concluded “that the legal order of the Russian Federation does not, at the present moment, meet the Council of Europe standards as enshrined in the statute of the Council and developed by the organs of the European Convention on Human Rights.” The same evaluation of the Russian legal system was given by the Director of the Legal Department of the Russian Ministry for Foreign Affairs A. Khodakov in The Explanatory Note on the Issue of Signing the European Convention for the Protection of Human Rights and Fundamental Freedoms by the Russian Federation dated 30 January 1996. It was stated that “[a]t the present moment Russian legislation, with the exception of the Constitution of the Russian Federation, and law enforcement practice do not comply in full extent with the Council of Europe standards.”
In the ad hoc report it was emphasised that such a political accession is troubling for the future of compliance with Strasburg law because, inter alia, “given Russia’s lack of experience in protecting human rights at the level of municipal law, it is likely that a great many violations of European human rights law will be committed there, and that they will not be remedied domestically.”
Under Article 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the Russian Federation has undertaken an obligation “to secure to everyone within [its] jurisdiction the rights and freedoms defined in Section I of [the] Convention.” It appears to be that in Russia this obligation is generally understood as the Russian Government’s recognition of the authority of the European Court of Human Rights to adjudicate petitions alleging violations of the Convention’s provisions occurring under the Russian jurisdiction. In other words, the ratification of the Convention is perceived by Russian citizens as the right “to write to Strasbourg”, as the right to complain to an international body, as a “panacea” for all the human rights violations. However, the main idea of international human right law is “to bring human rights at home.” As far as the Convention is concerned the core of this idea is depicted in its Article 1 of the Convention.
II.	PROBLEM: QUALITY OF THE CONVENTION IMPLEMENTATION BY RUSSIAN COURTS
It has been found that to date the impact of the Convention on the Russian legal system in terms of its implementation by domestic courts is unsatisfactory. There is a manifested and visible imbalance between normative provisions and the jurisprudence.
It was established the existence of a Constitutional provision which stipulates that the Convention as well as any other ratified international treaty is part of the law of the land; provisions of subsidiary legislation for international law implementation; as well as general rules adopted by the Constitutional and the Supreme Court’s so-called Regulations that develop monistic principles.
The jurisprudence of the Supreme Court and the Supreme Commercial Court to a great extent (unlike the jurisprudence of the Constitutional Court) resembles an attempt to demonstrate to the European Council that the Convention is being applied rather than the actual implementation of the Convention. Otherwise, what can one call a phenomenon when a supreme court of a land, having issued special documents (regulations) that orders all the lower courts to apply the Convention by taking into account the ECHR case-law does not follow these documents itself in its jurisprudence? Let us have a brief look at the situation.
The Supreme Court follows the way of simple reference to the Convention. This policy has not changed even after the promulgation of a number of its Regulations on the issue of domestic implementation of the international human rights law. In these documents, the Supreme Court explained, inter alia, that when applying the Convention judges shall interpret the treaty by taking into account any subsequent practice in the application of the Convention by the ECHR.
Under scrutiny, there was the jurisprudence of the Russian Supreme Court for the period from 5 May 1998 to 1 August 2004. The overall number of judgments of the Supreme Court under scrutiny was 3911. From the overall number of judgments there were only 12 judgments mentioning the Convention, from which only eight contain the Supreme Court’s ‘assessment’ of compliance with the Convention. In the other four cases, it briefly quotes arguments of an applicant which were based on the Convention but does not give any assessment to those arguments. The character of the Convention implementation depicts an even more disastrous situation with the impact of the Convention on the Russian legal system after more then eight years of Russia’s accession to the Statute of Council of Europe. The eight judgments contain not a single reference to the case-law of the ECHR. The manner in which the Convention is being implemented is very brief and imprecise. Usually only the number of an article is cited. In the best instances, the Supreme Court merely states verbatim the content of an article. The worst example is when it simply states that a particular government’s act does not contradict the Convention as a whole. 
As far as the real jurisprudence of the commercial courts is concerned, the situation resembles that of the jurisprudence of the Supreme Court of Russia. The overall number of judgments under scrutiny was 38068. Under scrutiny, there was the jurisprudence of the Supreme Commercial Court, the Commercial Court of Moscow, the Commercial Court of Moscow oblast, the Moscow Federal District Commercial Court (a court of cassation), the North-West Federal District Commercial Court (a court of cassation). From the overall number of judgments, there were only 23 judgments that mentioned the Convention from which only eight contain the courts’ citation of an article of the Convention. In the other 15 cases, the courts briefly cited arguments of a party which were based on the Convention but did not give any assessment to those arguments. The eight judgments do not contain a single reference to the case-law of the ECHR whatsoever. Usually only the number of an article is cited. In the best instances, the courts merely state verbatim the content of an article. The worst example is when a court states that a particular act does not contradict the Convention as a whole.
For theses reasons, it would be fair to conclude that the Supreme Court’s jurisprudence as well as the selected commercial courts’ jurisprudence does not invoke the Convention at all. 
Moreover, the implementation of the Convention on its own leads to incorrect application of the instrument. For example, in the case of The Labour Union of Militiamen of Moscow v. the Ministry of Internal Affairs, the Supreme Court stated that the “shift (peremeschenie) of the internal affairs officers without their consent to a different permanent duty station (mesto sluzhbi) [permitted by the Order of the Ministry of Internal Affairs] came within the definition of forced labour (prinuditelnogo truda) contained in Article 4 (2) of the Convention.” However, it would have been enough to refer to the Convention, let alone the ECHR case-law, to learn that it does not contain any such definition. In another case (Kolotkov v. the Government of the Russian Federation), the Supreme Court applied Article 14 of the Convention as if it were a free-standing article.
Thus, besides the fact that it implements the Convention on rare occasions and without addressing the case-law, the Supreme Court implements the Convention where there is no justification for the Convention to be engaged and refuses to implement the Convention where there is justification.
The jurisprudence which has emerged from the decisions of the district courts seems to indicate a better understanding of the spirit and purpose of the Convention. This achievement cannot be ascribed to the Supreme Court or Supreme Commercial Court’s jurisprudence or their Regulations. There is evidence that those rare occasions of the Convention implementation by the district courts were prompted by the applicants’ arguments based on the ECHR case-law rather than the courts’ own initiative.
III.	DEALING WITH THE PROBLEM: METHODS OF APPLYING THE ECHR CASE-LAW IN RUSSIAN COURTS
In this part of the paper, the practice of two Russian non-governmental organizations (NGOs) will be assessed – Glasnost Defence Foundation and the Urals Centre for Constitutional and International Protection of Human Rights of the NGO Sutyajnik. The jurisprudence accessed through these NGOs is of an interest in terms of the possibility of witnessing interdependence between the persistent applicants’ arguments based on the ECHR’s case-law before courts and quality of the Convention implementation by courts as well as the development of the Convention implementation.
The Foundation has organised a strategic litigation campaign with the aim to employ Article 10 of the Convention (the Rights to Freedom of Expression) in all the defamation cases where its lawyers were involved. It was noted that in the legal proceedings where only the Convention was cited it has not led to a resolution of a case based on international law principles. The Foundation’s lawyers changed the method of simply citing the Convention in their memorandums to courts by submitting comprehensive memorandums as to the direct implementation of the Convention and the case-law in every case. The purpose of the memorandums was to convince the courts that the Convention has the status of a federal law and that attempts to implement the Convention without taking into account the ECHR’s case-law was in vain.
A distinctive feature of the district court judgments obtained by the Foundation is that these courts indeed have been citing precedents of the ECHR. Those references to the case-law have been prompted by the comprehensive memorandums submitted by the applicants’ lawyers. We shall admit the positive shift in the district court jurisprudence towards implementation of the ECHR case-law. Vladislav Bykov spoke of the recent positive changes: 
Today the situation is different. There is no point in submitting memorandum [on the domestic status of the Convention] anymore. Judges themselves conduct lectures and familiar with the Convention. For this reason I cite the right guarantied in the Convention and the relevant case-law [without paying attention to the domestic status of the Convention]. However, if there is a ‘willingness’ [to rule against the defendant] the judges simply do not notice the case-law in purpose and implement those exceptions contained in Article 10 (2) of the Convention. The fact that the true meaning of those exceptions may be obtained only from the case-law and that one must not apply the Convention without taking into account the ECHR case-law do not confuse judges and they keep applying the Convention on its own. 
A similar situation can be observed when studying the practice of the Centre. The Centre has not been seeking to maximize the number of cases brought before the ECHR. The main task of the Centre was to engage the Convention in every domestic legal proceeding possible in order to avoid an appeal to the ECHR alleging non-compliance of the Russian Federation with the obligation to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention (Article 1). According to the Centre’s local rules, lawyers were obliged to invoke the Convention and the ECHR’s case-law in particular by submitting memorandums containing comprehensive explanations as to the Convention’s and case-law’s status in the Russian legal system as well as an obligation of judges to employ provisions of this instrument in their judgments. The Centre has been following this policy since 2000. The results are the following. 
It shall be noted that there was not a single case where a judge engaged the Convention, let alone the ECHR case-law, on its own initiative. There is a strong resistance on the side of judges to invoke the Convention. Usually the Convention is being applied by those judges who constantly have been facing arguments of the applicants based on the Convention. Those who come across such arguments for the first time try to avoid mentioning them in their judgments, even when the case-law principles support the applicant and the judgments are for the applicants. They adjudicate cases based on the domestic law only. In the best instance, judges cite an article of the Convention without referring to the case-law analysis submitted by the applicant.
However, as time goes by, those judges regularly placed by the applicant into a situation where they have to consider the Convention and the case-law start to apply the Convention and, which is more valuable, look into the case-law. There are examples where judges cite principles expressed in the case-law as well as titles of the judgments referred to in a case. When the applicant relies on the Convention, the reasoning of the judgment is limited to mentioning the Convention in general or its specific article; there is no reference to the case law.
In terms of general observations, there are four possible reasons for not considering international law arguments by courts. (1) Judge lacked any knowledge and experience in the international law implementation. However, the more judges face the arguments based on the ECHR case-law, the more likely they will implement it; (2) incorrect understanding of the phenomenon of precedent; (3) bias consideration of a case by courts (the incapability – lack of political will – to adjudicate according to the case-law principles); (4) a possible ruling on a particular right could entail far reaching consequences for a state body or official of the Russian Federation as to the lawfulness of their action.
During 2000-2004, the Centre has held a strategic litigation campaign on the problem of legality of lay judges (assessors). In a number of cases (civil as well as criminal) applicants complained about a violation of their right to a fair trial by arguing that their cases could not be considered by any of the district courts of Sverdlovsk oblast due to the fact that they were not “tribunals established by law” because they had been composed in breach of Law of Lay Judges Act. The violation of the Act was due to not providing the district courts with the list of lay judges by Sverdlovsk State Duma (the regional legislative organ) and Judicial Department at the Supreme Court of the Russian Federation. For this reason, lay judges were usually serving for years instead of 14 days as it was provided by the Act. In all the lay judges cases courts held that there were no breaches of the applicants’ rights because, in spite of the fact that there was no list of lay judges available for the district courts, the cases were considered in accordance with the Presidential Decree of 25 January 2000 On the Extension of the Lay Judges Office Term, which extended the statutory term of office of the current lay judges until new lists had been established under the Act.
First, the Centre’s lawyers filed law suits before the Supreme Court seeking to challenge the Presidential Decree of 25 January 2000. The action was dismissed without consideration of it on the merits due to the Court’s conclusion that President’s Decrees are not subject to judicial review. Secondly, in every court proceedings (civil and criminal), the lawyers have pleaded a challenge to lay judges on the ground of a breach of the Article 6 (1) right to a fair hearing by a tribunal established by law. Thirdly, all the judgments delivered by an unlawfully composed bench of lay judges were appealed to a high court on the same ground. Fourthly, the applicants petitioned to the Sverdlovsk Oblast Duma (legislative body of the Sverdlovsk region) and the Judicial Department at the Supreme Court of the Russian Federation, which were responsible for drafting the list of lay judges, without any success. Fifthly, already after the Posokhov v. Russia case, the strategic litigation campaign has culminated in the proceedings of Beliaev v. Sverdlovsk Oblast Duma and the Judicial Department at the Supreme Court of the Russian Federation. 
In the case of Beliaev the applicant complained about a violation of his right to a fair trial by arguing that all the district courts of Sverdlovsk oblast could not be considered to be “tribunals established by law” because they had been composed in breach of the Act. The applicant made his case inter alia on the the Posokhov v. Russia case arguments that failure to observe the requirements of the Act, in particular absence of the list of lay judges, which should have been provided by the defendants, led to a breach of Article 6 (1) of the Convention.
The original court and the court of cassation were completely ignoring the arguments based on the Convention. The only ‘remedy’ that the Russian Federation provided was the abolition of the lay judges’ institute in criminal cases on 1 January 2004 and in civil on 1 February 2003. However, finally the lawyers of the Centre harvested the results of the strategic litigation campaign. On 13 July 2005 the Presidium of the Sverdlovsk oblast court (the court of extra-judicial instance) quashed the lower court decision in State v. Parshukov case due to a violation of Article 6 of the Convention comprehensively citing provisions of Posokhov v. Russia judgement. 
IV.	CONCLUSION
Unlike in the case of the Supreme Court, there are instances where lower courts use the case-law in their analysis of alleged Convention violations. However, it would be fair to agree with the conclusion made by the lawyers of Glasnost Defence Foundation based on the assessment of the jurisprudence on Article 10 implementation that it is considerably difficult to apply the Convention and in particular its interpretation in the ECHR’s case-law in Russian courts. On the other hand, there are some examples of good practice of the analysis of the Convention based on the case-law. The assessed jurisprudence of the district courts as a whole demonstrates that systematic and persistent arguments based on the Convention and the case-law raised by the applicants are crucial for good practice. Lack of substantial submissions by the applicants as to the implementation of the Convention leads to an absence of analysis of the ECHR’s case-law, therefore, its poor application by courts. Consistent arguments of the parties are crucial for the Convention implementation in domestic courts.