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15.09.22
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Russia: victims of human rights violations had a last resort in Europe. Not anymore

On 16 September, Russia will cease to be a party to the European Convention on Human Rights. This has been known for six months, and in those six months, Russian lawyers working with the European Court of Human Rights (ECtHR) have probably gone through all five stages of accepting the inevitable. But let's go back a bit and suffer some more.

On 22 March, the ECtHR published a Resolution on the consequences of Russia's withdrawal from the Council of Europe. Under the document, Russia will cease to be a High Contracting Party to the Convention for the Protection of Human Rights and Fundamental Freedoms on 16 September 2022. It is also stated that complaints concerning alleged human rights violations against Russia which occurred before that date will still be taken up by the Court.

It sounds reasonable and even encouraging, and it seems that at least those victims of torture, discrimination and unfair trials who were "lucky" to suffer before September 16 will have access to justice. But in practice, we see that they will not. Lawyers from different human rights organisations and lawyers working on cases at the ECtHR are vying with one another to share decisions on the inadmissibility of complaints that are identical to those that the Court has previously considered favourably. We are amazed to see cases where violations are obvious end in the bin. The feeling is that the Court will take up well-established case law cases and leave some particularly big (probably inter-State) cases postponed indefinitely, while the rest will be written off. I have a feeling the court has forgotten about Article 58 of the Convention, according to which the object and purpose of the Convention as an instrument for the protection of human rights require that its provisions be interpreted and applied in a way that provides practical and effective protection to those within the jurisdiction of the High Contracting Parties.

Russian authorities were spending 12-16 million euros per year on reparations

On the other hand, the Russian authorities are happy not to enforce the Court's judgments[1]. There will be no repayment for judgments rendered after 16 March 2022. Up to 1 January 2023, the Office of the General Prosecutor of the Russian Federation can make the payments to the applicants for the judgments handed down by the Court up to and including 15 March. It has been clarified that payments will be made only in roubles to accounts in Russian credit institutions and cannot be made to accounts in foreign banks in States that have committed unfriendly acts against the Russian Federation. Lawyers are already getting the appropriate answers.

Of course, this is excellent for saving money. Over the past ten years, the amount of compensation under ECtHR judgments has always exceeded the budget allocated to it and represented quite serious money. For example, in 2021, only one of my cases cost the treasury more than 2 million euros. Recently, Russian authorities spent 12-16 million euros per year on these reparations.

This circumstance clearly contradicts the Russian Constitution. Your humble servant, together with partners from other NGOs, will appeal this law to the Constitutional Court, but we do not have much hope for obvious reasons.

Moreover, the recently adopted Russian law excludes European Court judgments from the procedural law as grounds for quashing effective court decisions and reopening criminal proceedings in view of new or newly discovered circumstances. This means that there will be no further reviews of convictions based on evidence extracted under torture, as in the case of Novoselov v. Russia. No review in cases where the defendant was provoked or framed, as in Vanyan v. Russia. It will be possible to use secret witnesses and issue rulings based on their testimony.

In drafting the law, it was initially assumed that Russia would not enforce ECtHR judgments handed down after 16 March, which meant that a number of cases that became final just after that date would still be executed. But in the end, the authorities further narrowed this possibility by asserting that, to be enforceable, ECtHR judgments must already be in force before 16 March. This situation affected some 20 decisions of the Court issued after mid-December 2021. The unluckiest applicant was Denis Kuzminas, to whom the Strasbourg court awarded €2,000 on 21 December 2021 because of an illegal search. This is the first ruling that has come into force since mid-March, and it is clear that the applicant will not receive the compensation awarded to him.

It appears that no one is interested in the fate of Russian applicants anymore

Russian lawyers specialising in the ECtHR intend to ignore the new laws on Russia's proactive waiver of Strasbourg's jurisdiction. They will file complaints until mid-September and then for violations that occurred before 16 September. This flash mob of sorts is not based on an empty protest but on the understanding that the Russian Federation has not formally denounced the European Convention for the Protection of Human Rights and Fundamental Freedoms. At the same time, many of my colleagues and I think that the decision on non-enforcement of the ECtHR judgments issued after March 16, 2022, is legally untenable and even anti-constitutional. However, the point is most likely that the Russian authorities, on the one hand, want to proudly leave the Council of Europe rather than be expelled from it and, on the other hand, would not like to initiate the abolition of the international human rights standard themselves.

On the whole, it now appears that no one is interested in the fate of Russian applicants anymore. The European Court is trying to rapidly clear the backlog while contradicting its own practice in similar cases. Russia has made it clear that the European Court no longer exists for it. And it turns out that applicants and their representatives are now caught in a vice. On the one hand, the Russian authorities deny the future of the ECtHR in Russia. On the other, the ECtHR's decisions also show that the rights of Russians have become less important than the rights of others.

And perhaps I was wrong about the stages of acceptance at the beginning of my text. I am still at the anger stage.

Olga Sadovskaya is a Russian lawyer who was the deputy chairperson of the Committee Against Torture, a non-governmental organisation based in Nizhny Novgorod that has won more than 100 torture cases at the European Court of Human Rights since 2006. In 2017, Ms Sadovskaya received the Sakharov Freedom Award from the European Parliament.







[1] The ECtHR has delivered 3,116 judgments against Russia since the country ratified the Convention, in May 1998 https://echr.coe.int/Documents/Overview_19592021_ENG.pdf

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