By Kanstantsin Dzehtsiarou and Gennady Esakov
On 23 November 2020, the Russian Ministry of Justice announced the long list of candidates for the position of the judge of the European Court of Human Rights (ECtHR) elected on behalf of Russia. The new Russian judge will replace judge Dmitry Dedov whose term will expire on the New Year’s Eve of 2022. Judge Dedov was elected in 2011 and the national selection back then was not the best example of a transparent, meritorious and competitive procedure. Among the main problems in 2011 was that the competition was not widely announced and that the selection procedure was not entirely clear. It seems that the current competition is more transparent and the rules are somewhat more predictable but it is not without challenges either. We will briefly unpack the key challenges in this short contribution.
Setting the scene: difficult relations between Strasbourg and Moscow
Recent relationships between the Russian authorities and the Council of Europe were strained. Russia was on the brink of leaving this regional organisation not long ago. Russian parliamentarians did not participate in the sessions of the Parliamentary Assembly of the Council of Europe (PACE), the Russian authorities stopped contributing to the budget of the Council of Europe. It is widely reported that the level of human rights protection in Russia is of concern for the Council of Europe. It these circumstances it is crucial that the new ECtHR judge is an independent specialist of the highest calibre.
Legal certainty and predictability of the selection procedure
Legal certainty and predictability are the cornerstones of the rule of law principle. Moreover, the Committee of Ministers of the Council of Europe demands that the rules of the competition for the selection of candidates of the ECtHR judges are ‘stable and established in advance through codification or by settled administrative practice. This may be a standing procedure or a procedure established in the event of each selection process. Details of the procedure should be made public’. Of course, changing the rules during the selection is a serious problem from the point of view of legal certainty that undermines the trust in the proceedings but this is what arguably happened in Russia. In the official announcement, published on 23 September 2020, the Ministry of Justice stated that the selection procedure will consist of two (in fact, three) stages. The first one is the formal review of the documents (age of the candidates, education, relevant experience etc). At the second stage, the linguistic competences of the candidates in English and French are to be examined. Finally, the special Commission of the Ministry of Justice was supposed to conduct individual interviews with the candidates. Then, as it was stated in the announcement, ‘the decision on the outcome of the competition will be made by the Commission based on the results of the individual interviews, considering the level of knowledge of the Council of Europe’s official languages’. So, it seems that the Commission was expected to announce the names of 3 candidates who were supposed to be presented to the Parliamentary Assembly of the Council of Europe which makes the final choice. This is because, pursuant to Article 22 of the European Convention of Human Rights, every state must present a list of 3 candidates, from which a judge is elected by the PACE.
Thirty-four candidates submitted their documents to the Commission and twenty-seven were allowed to sit the language test. After testing the linguistic skills (nine candidates eliminated) and individual interviews, the Commission compiled the list not of three but of six potential candidates. Surprisingly (or rather unsurprisingly for everyone who is familiar with the Russian political context), as deus ex machina, President Putin appeared in this procedure. According to the new iteration of the procedural rules, on 15 December 2020, this list of 6 will be presented to President Putin who will personally select the final list of 3 candidates. The initial announcement was prepared in vague and cautious terms, it did not explicitely state that the Commission will name only three candidates. However, one would surely except that the final stage of the selection process being conducted by President Putin to be clearly announced in advance.
Who is judging the judges?
Although the Committee of Ministers of the Council of Europe does not specify who should finalise the list of candidates, it seems logical that the final decision-maker should be appropriate to the task. In Russia, this decision will be made by President Putin.
Under the revised Russian Constitution, the President has an array of competences vis-a-vis the national judiciary (Articles 83 and 128). He or she is entitled to appoint all Russian judges except the judges of the Supreme and Constitutional Courts (they are appointed by the Council of Federation (the upper Chamber of the Russian Parliament) but only after they are nominated by the President). He or she may also ask the Council of Federation to impeach the judges of the Supreme and Constitutional Courts and high interregional courts.
The challenge here is not so much the scope of the authority of a President of Russia, but more specifically as to how President Putin exercises such authority. The key decisions in this area are prepared by the special body in the presidential administration which is called the Commission for the preliminary review of the candidates for the judicial positions. We assume that this Commission will be instrumental in finalising the list of judicial candidates but even if it is not this particular Commission, our following argument is equally applicable to any other comparable body. This Commission mainly consists of the officials from the President’s Administration, and it is suspected that it works in close cooperation with the security forces such as the Russian intelligence agency (FSB), the Prosecution service, etc. On the national level, such Commission can reverse any judicial nomination presented to it by the so-called Judicial Qualification Boards without any clear reasoning. For example, in 2020, two Deputy Presidents of the Russian Supreme Court, Mr Sviridenko and Mr Nechaev, applied for the re-appointment as Deputy Presidents. Both judges were approved by the Supreme Qualification Board of Judges but dismissed by the Presidential Commission. As a result, both judges retired. The lack of a clear procedure, the failure to provide any reasons for their decisions and the direct links with the security forces make the Presidential Administration a questionable decision-maker for the selection of a list of independent and well-qualified candidates for the position of a Judge of the European Court of Human Rights elected on behalf of Russia.
The long list
A few weeks ago, the Commission released the long list of candidates which includes many very capable candidates. In particular, among the potential candidates one can find a leading defence lawyer who submitted numerous applications to the European Court of Human Rights, a high-profile official of the Council of Europe, academics working in the area of human rights. Many of them would be excellent judges of the ECtHR. However, the list also includes some candidates of concern. For the second time, Andrey Bushev is trying to get elected to the Strasbourg Court. He was not elected 9 years ago and he is most known for being the ad hoc judge in the famous Yukos case in which he dissented and fully supported the position of the Russian Government. We would not be surprised if Bushev ends up among those candidates who are selected by President Putin. Another concerning choice of a potential judge at the international level is the judge of the Supreme Court of Russia, Natalia Pavlova. She has no known competences in human rights or public international law but she delivered a few high-profile judgments in favour of the Russian authorities at the national level. The PACE and especially the Committee for the Election of Judges which interviews the candidates in Strasbourg needs to assess the independence of the candidates. The PACE should reject the list if there is a shadow of a doubt that the candidates will be excessively loyal to their domestic authorities.
Kanstantsin Dzehtsiarou is Professor in Human Rights Law (University of Liverpool) and Editor-in-chief of the European Convention on Human Rights Law Review
Gennady Esakov is Doctor of Law, Professor and Counsel at ZKS Law Attorneys