June 02, 2022
[This post first appeared on the DISSECT blog.]
It has been three months since Europe woke up to the horrific news that Russia had launched a brutal invasion of neighbouring Ukraine—two months during which Ukraine has seen immeasurable suffering and destruction, and two months which have dramatically changed Europe’s human rights landscape. It is no exaggeration to state that Russia’s expulsion from the Council of Europe (CoE) on 16 March marked the beginning of a new era for the system of the European Convention on Human Rights (ECHR, ‘the Convention’).Read more: Russia and the Strasbourg Court: evidentiary challenges arising from Russia’s expulsion from the Council of Europe
As chance would have it, I was in Strasbourg, in the final month of a study visit at the European Court of Human Rights (ECtHR, ‘the Court’), when Europe’s human rights protection project was shaken to its core. I remember noticing, as I was cycling home from work in the evening of 16 March, a yawning gap in the long row of flags in front of the Palais de l’Europe, where the symbolic removal of Russia as a member state earlier that day had left behind a bare pole between the Romanian and San Marino flags. I also remember sitting in my shared office just below the foyer of the Human Rights Building (which houses the ECtHR) in the afternoon of 22 March, and seeing several Judges hurry down the stairs to attend a meeting of the Plenary Court at which it was decided that the Court would retain full jurisdiction over Russia until 16 September 2022.
Even while all this was unfolding, Judges and Registry officials were generous enough to speak with me about my PhD research on the Court’s evidentiary regime. During a series of interviews and informal conversations, an observation consolidated that I had made during my six months as a study visitor: the proceedings before the Court are very strongly driven by the parties, and thus even more adversarial in nature than I had assumed. The fact that the Court takes account of the ‘totality of evidence’ before it and that it has a range of fact-finding tools at its disposal had previously led me to characterise its proceedings as ‘predominantly adversarial, with a dash of inquisitorial flavour’. During my time in Strasbourg, however, I got the impression that the mix is blander than I had thought.
The coincidence of this realisation and the uncertainty regarding the consequences of ‘Ruxit’ for the Court have had me ponder a series of questions: How does an international court whose proceedings are adversarial deal with a (likely) scenario where one party—the respondent state—ceases to engage in the judicial process? Will the ECtHR henceforth base its findings mainly on the claims and evidence brought by the applicants? Will it become a more active fact-finding tribunal? And what implications will the Court’s approach to ruling on complaints against Russia have for its legitimacy?
I should note that I did not find answers to these questions in Strasbourg. I doubt that the Court itself has any at this stage. Wishing to stay clear of speculation, this blogpost has a humble aim, namely to offer some reflections on how the Court’s self-conception as an essentially adversarial tribunal sits with the challenge of being faced with the absence, for all intent and purposes, of one party.
Russia’s 25-year long history with the Council of Europe is fraught with conflict. From its notoriously poor record of compliance with the judgments of the Strasbourg Court, to its occupation of fellow member states (think Transnistria, Abkhazia, South Ossetia, Crimea and Donbas), to its financial blackmailing of the Organisation following the Parliamentary Assembly’s suspension of certain rights of the Russian delegation in response to the country’s illegal annexation of Crimea in 2014—the Russian government has demonstrated its disdain for the CoE in numerous ways. On 15 March, in an attempt to control the narrative and pre-empt being kicked out of the CoE, Russia announced its withdrawal from the Organisation and the Government’s intention to denounce the Convention. From this point on, it seemed unlikely that Russia would continue to engage with the Court. The Government sent another unmistakeable signal when it failed to respond to the Court’s latest request for comment on an interim measure application concerning the situation in Ukraine, as Milanovic observes. And as if to convince anyone who was still in doubt about this strategy of disengagement, it was reported on 26 April that the Russian Prosecutor General’s Office had ceased its cooperation with the ECtHR.
What, then, are the likely implications of Russia’s expected non-engagement with the proceedings before the Strasbourg Court? The country presently accounts for almost a quarter of the Court’s docket. At the end of March 2022, some 18,200 applications were pending against Russia, among those eight inter-state cases (five of which were brought by Ukraine) and a considerable number of individual applications concerning Russia’s aggression against Ukraine since its annexation of Crimea and invasion of the Donbas region in 2014 (the Court does not publish statistics on conflict-related cases, but according to a CDDH report from October 2021, more than 2,000 individual applications concerning the conflict in Ukraine were pending that month: 894 concerning Eastern Ukraine, and at least 1,129 concerning Crimea). As we are confronted with overwhelming evidence of large-scale human rights violations resulting from the ongoing war, this figure could rise further, although it seems impossible to estimate how many victims will still seek justice from Strasbourg for violations allegedly committed by Russia. In any event, because the Court will have full jurisdiction over alleged violations that occur right up until 16 September 2022, complaints against Russia can be brought to Strasbourg not just until that date but, given the requirement that applicants first exhaust domestic remedies, for years to come.
Dzehtsiarou rightly questioned the impact of any forthcoming judgments against Russia beyond their symbolic value. Indeed, it seems almost inconceivable that Russia will implement the Court’s judgments, be it the more than 2,000 cases currently awaiting execution (217 of which are leading cases, which raise new and often structural or systemic issues that require general measures of redress) or any future rulings. Add to this that the expected departure in September (when Russia ceases to be a contracting party to the Convention) of Mikhail Lobov, only recently elected as Judge in respect of the Russian Federation, will bring its own challenges (Helfer and Dzehtsiarou).
My concern in this blogpost, however, is with a different challenge—one that arises specifically from Russia’s likely refusal to engage in the proceedings before the Court: how will the Court navigate its duty to issue judgments in the absence of observations and evidence from the responding state?
Admittedly, having to grapple with uncooperative states is not an entirely new challenge for the Court. It has already had to find ways to carry out its fact-finding function in situations where the respondent was unhelpful, if not outright obstructive, in elucidating what had happened. Just think of the cases concerning the infamous CIA rendition programme, which, by their very nature, are characterised by states seeking to operate under a ‘cover of darkness’ (as discussed by O’Boyle). Russia, in particular, has sought to hinder Strasbourg proceedings on several occasions. In two high-profile inter-state cases, for example—Georgia v Russia (I) and Georgia v Russia (II)—the Russian authorities failed to provide key evidence requested by the Court, and in Shamayev and others v Georgia and Russia (a case concerning the extradition of Chechen applicants from Georgia and their subsequent detention in Russia) Russia refused to facilitate access to the detained individuals, thus effectively blocking the Court’s planned in situ fact-finding mission.
The Court has developed two main responses to state efforts to hinder its factual assessment. The first is to find a violation of Article 38 ECHR, which obliges the respondent state to furnish ‘all necessary facilities’ for any investigation carried out by the Court. The second is a practice developed by the Court (and now codified in Rule 44 C of the Rules of Court) to draw inferences as to the well-foundedness of an applicant’s allegations from a state’s failure to cooperate effectively with the Court.
I would argue that even quasi-automatic findings of an Article 38 violation in cases where Russia fails to present observations would be an inadequate response by the Court. By contrast, drawing inferences seems to me to be an indispensable tool in the unprecedented scenario where a state disengages completely (as opposed to ‘merely’ failing, even routinely, to provide information or adduce requested documentary evidence). Why I think so will become evident when taking a closer look at the nature of the proceedings before the Court.
The question of whether the proceedings before the ECtHR are (mainly) inquisitorial or adversarial has divided scholars (compare Kokott 1998: ch. 3 with Schabas 2015: 703). Even before my fieldwork in Strasbourg, I knew that the ECtHR is a reluctant fact-finder. Witness hearings and on-the-spot investigations have become rare—the Court never went to Chechnya, for example—and the principle of subsidiarity dictates (or is seen as dictating) that the Judges in Strasbourg should not without good reason question the domestic courts’ findings of fact. One Judge, interviewed in March 2022, confirmed:
‘We generally are relatively cautious not to contradict the [domestic courts’] findings of facts, unless they are just unsupported—well, unsupportable—on the evidence.’
I was aware, then, that in practice the proceedings before the Court are largely party-driven and based on exchanges of written observations and documents—a characteristic that hints at the domestic (and notably common law) influences that have shaped the ECtHR’s evidence regime.
At the same time, the Court can (and sometimes does) request specific evidence from the parties. It insists that, rather than placing the burden of proof firmly on one party or the other (with the effect that the party that fails to adduce evidence would lose), it will examine all the evidence before it (whether it emanates from the applicant, the respondent state or other sources). It can also, if necessary, obtain material of its own motion (case-law principles that were reiterated in Merabishvili v Georgia [GC]). Moreover, the few codified evidentiary rules that can be found in the Rules of Court and its annex largely concern investigatory measures, especially the Court’s fact-finding powers.
While these characteristics had led me to think of the Court’s proceedings as sitting somewhere in the middle on the spectrum from purely adversarial to purely inquisitorial, my time in Strasbourg had me understand that, in relation to the majority of cases, they are more accurately located further towards the adversarial pole.
During many formal and informal conversations I had at the Court, my interlocutors (both Judges and Registry lawyers) tended to squarely place the burden on the parties to introduce the facts and evidence. The one notable exception that was occasionally invoked pertained to relevant domestic and international law, which the Strasbourg Court considers to be part of the facts of a case. But when asked about the Court’s freedom to obtain evidence proprio motu, for instance, my interlocutors were quick to stress that, in the interest of guaranteeing equality of arms, the parties would need to be given an opportunity to present arguments regarding any such evidence (on how the Court implicitly embraces the concept of audiatur et altera pars (‘may the other side also be heard’), see Stirner 2021: 44).
This view that the proceedings before the ECtHR are essentially adversarial also clearly emerged from the way my interlocutors spoke about the overarching purpose of the Court’s evidentiary regime. They were united in stating that the Court’s function was not to establish the ‘objective truth’ of what had happened in a given case (as would be the task of a court in a purely inquisitorial system) but rather to determine, on the basis of the submissions and evidence presented by the parties, if there is enough evidence to establish a Convention violation. Interestingly, some interviewees explicitly said that, in assessing the parties’ accounts and weighing the evidence, they were being guided by ‘logic’ and ‘common sense’, and that they would make their assessment on the basis of a ‘preponderance of evidence’—statements that would appear to be in contradiction with the Court’s declared standard of proof ‘beyond reasonable doubt’.
What this reveals is that the apparent preference on the part of the Court to keep its proceedings adversarial will be difficult to square with Russia’s expected non-engagement in the judicial process. This presents a considerable challenge for an international court whose authority and legitimacy has already come under attack from various corners of Europe.
Dzehtsiarou has ventured that, because ‘the respondent state authorities are active participants in the proceedings in Strasbourg, … [t]he absence of the Russian government would undermine the legitimacy of judgments delivered against Russia.’ He is right—to some extent: if Russia does not provide any submissions in the cases to which it is a party, and the Court does not seek to obtain evidence on its own motion, the factual basis of its judgments may consist of little more than (sometimes questionable) domestic decisions and the accounts and evidence presented by the applicants (and, potentially, third party interveners). Too heavy a reliance on applicants’ submissions, in turn, invites criticism of bias—and not without reason, considering that a Registry lawyer confirmed that it is not uncommon for a case to initially appear clear-cut, only for it to later emerge, on the basis of the respondent government’s submission, that things are not quite as presented by the applicant.
Does this mean that the Court should (as Dzehtsiarou gathered it might) consider ‘freezing’ all pending applications against Russia until better times (which presumably means a regime change in Moscow paving the way for the country’s readmission to the CoE)? My answer to this question would be a resounding ‘no’. Such a radical step, in my view, is both unnecessary and objectionable.
It is unnecessary because a more flexible approach to establishing the facts in cases against Russia seems possible, given that some cases will pose fewer challenges than others: applications that do not meet the formal requirements will continue to be thrown out (or ‘disposed of administratively’) under Rule 47 of the Rules of Court. Others will be declared inadmissible by a Single Judge formation. Cases before a three-Judge Committee should not be impacted much, either, since they are subject to a simplified communication procedure and decided on the basis of well-established case law. Besides, a certain number of Chamber cases are ‘ready for decision’, i.e. all submissions have been received. We can probably expect Section III (the section of the Russian Judge) to try and deal with as many of these cases as possible before the expected departure of the Russian Judge in mid-September. The evidentiary challenges discussed here will therefore really only come to bear in Chamber and Grand Chamber cases, which are communicated to the Government together with specific questions, if and when the Russian Government fails to respond to these communications. In some of these, the applicants will dispute the facts as established by the domestic courts (if they were), and one would imagine that with Russia turning its back on the CoE, the domestic judicial proceedings will only move further from complying with Convention standards, rendering the Strasbourg Court more and more prone to second-guessing the domestic courts’ findings of fact.
More importantly, freezing all Russian cases would be normatively objectionable. It would directly run counter paragraph 2 of Rule 44C RoC, which reads: ‘Failure or refusal by a respondent Contracting Party to participate effectively in the proceedings shall not, in itself, be a reason for the Chamber to discontinue the examination of the application.’ If this rule were not abode by, and Russia’s blanket non-engagement with the Court were to result in ending the examination of Russian cases on the basis of prevailing factual uncertainty, this would create a perverse incentive for other states to obstruct the Court’s proceedings. To put it bluntly: if Russia could avert violation findings by withholding evidence, why would Azerbaijan or Turkey not try to (occasionally) do the same?
It seems, then, that the question about legitimacy needs rephrasing. One should ask: in whose eyes must the Court’s legitimacy be preserved? Yes, we can expect the rhetoric from Moscow about the Court continuing to examine Russian cases to be hostile. But can a state that decides of its own volition to remove itself from an adversarial process claim that the proceedings were unfair? As I see it, the threat to the ECtHR’s legitimacy—among applicants, civil society and the generally human rights abiding states parties—would be much greater if the Court were to decline ruling on applications where the absence of Russian Government submissions impedes establishing the facts.
But if upholding the Court’s legitimacy dictates that no cases against Russia be ‘frozen’, and Rule 44C gives the Court a basis on which to proceed with its examination of Russian cases even in the absence of Government submissions, how can it come to grips with an incomplete factual and evidentiary basis? I should like to propose four thoughts and questions that could guide the Court in navigating this unprecedented challenge.
First, to what extent can the Court rely on information and evidence from applicants? How can it ensure that any new practice does not amount to imposing an impossible burden on applicants by essentially expecting them to mitigate any factual uncertainty which is attributable purely to Russia’s failure to engage with the process? What safeguards are needed to ensure that applicants are not ‘punished’ for Russia’s lack of engagement, for instance by being expected to provide evidence that is solely in the hands of the authorities?
Second, I would argue that, where the Russian Government, by virtue of its non-cooperation, fails to refute credible allegations backed up with sufficient prima facie evidence, the Court should make generous use of inferences. But what are the inner and outer limits to using adjudicatory tools such as inferences when faced with an entirely absent party?
Third, can and should the Court give greater weight to information and evidence presented by NGOs and international organisations, especially when it comes to proving wide-spread violations? How proactive should it be in soliciting expert evidence? These questions seem particularly pertinent in the context of some high-profile cases related to the ongoing war in Ukraine, which also present the Court with the challenge of having to deal with large volumes of novel types of evidence such as digital open source intelligence (which my DISSECT colleague Ruwadzano Makumbe has written about). Another question that might arise in relation to third party interventions is how the Court could respond to possible attempts by Russia to wage an ‘information war’ by proxy, through the use of GONGO submissions to the Court.
Fourth, perhaps the most difficult question of all: is this the time for the Court to overcome its reluctance to resort to fact-finding hearings and missions? If the Court never went to Chechnya, the prospect of it sending a delegation to any disputed territory controlled by Russian forces or Russia-backed separatists (let alone an active war zone) seems very remote. But can an argument not be made for the Court to at least consider carrying out a mission to Kyiv and surrounding areas in the future? And is it not for the governments of the 46 member states of the Council of Europe to provide the Court with the necessary resources to carry out missions and witness hearings if these promise to fill some of the factual gaps caused by Russia’s refusal to engage in the judicial process in Strasbourg?
None of these questions will be easy to answer. I would advocate for a pragmatic approach to dealing with Russia—a soon-to-be ex-contracting party whose judiciary will no longer be bound by the guarantees enshrined in the Convention, and which will most likely choose to remove itself from the adversarial process in Strasbourg. The lack of codification of evidentiary rules might turn out to be a blessing in disguise, giving the Court the necessary wiggle room to tailor its approach to the circumstances of each case affected by Russia’s expected non-cooperation.
Meanwhile, the importance for the Court to engage in transparent and convincing decision-making in this regard cannot be overstated. Even the Strasbourg Court—an international human rights court which sees itself as a court of law rather than a truth-finding tribunal—must accept that assessing evidence is an essential judicial function. To preserve its legitimacy vis-à-vis actors expecting it to ensure procedural fairness, and to defend it against attacks from more hostile contracting states, the Strasbourg Court will have to find ways to ensure a rigorous assessment of the facts and underlying evidence in all pending and future Russian cases. After all, fact-finding constitutes ‘a fundamental aspect of the delivery of justice’ (Leach 2018: 1)—justice that tens of thousands of applicants can no longer count on finding in Russia.