September 20, 2022
by Dmitry Kurnosov
On September 16, 2022 Russia ceased to be a party to the European Convention on Human Rights (ECHR). This event is bound to have serious repercussions both for Russia and for the Strasbourg institutions. In this contribution, I chart some of the potential implications both for Russian domestic law and for the Convention system.
‘The abyss of lawlessness’
Thirteen years ago, I covered the Russian Constitutional Court for one of the country’s news agencies. The Court just ruled on the issue of the death penalty, and I got into an argument with its press office. They claimed that the judges have just completely abolished capital punishment in Russia, while I believed it was conditional on the country remaining a party to the ECHR. Back then it was nearly inconceivable that Russia would leave the Convention. Indeed, the Constitutional Court judgment extending the moratorium on death penalty, emphasised that Russian signature of the ECHR and its Protocol No. 6 put in motion ‘an irreversible process’ towards the abolition of capital punishment. This was despite the fact that the parliament actually failed to ratify the Protocol for over ten years. It saw no need to do so in the years following the Constitutional Court’s judgement. Neither was the penalty of death removed from the Criminal Code.
Now that the Convention no longer applies to Russia, technically there is little to prevent courts from sentencing people to death for one of the five capital crimes. One of these is genocide. For those familiar with the legal background of Russia’s invasion of Ukraine, it will undoubtedly ring a bell. Allegations of genocide are one of the key elements of the official Russian narrative supporting the invasion. In the wake of current hostilities, Ukraine took Russia to the International Court of Justice, arguing that such allegations were contrary to the Genocide Convention.
Furthermore, there are rumours that three days before the invasion, the Russian Prosecutor-General Igor Krasnov presented a plan for trying the Ukrainian leadership before a ‘tribunal’. These rumours align with the U.S. intelligence assessment in February 2022, which claimed that Russia targeted prominent Ukrainians ‘for either arrest or assassination’. It is a dark irony that at the time Krasnov’s agency was still responsible for representing Russia in Strasbourg and enforcing the judgements of the European Court of Human Rights (ECtHR).
There are reasons to believe in the rumours. The idea of a ‘tribunal’ for Ukrainian leaders has been circulating in Russian circles well before the current invasion. The open-ended investigation into alleged Ukrainian war crimes began all the way back in 2014. In the same year, an ‘international public tribunal’ was established by government-organized non-governmental organisations (GONGOs) aligned with Russian authorities. Finally, this summer saw death sentences for foreign fighters of Ukrainian forces pronounced under the ‘jurisdiction’ of Russian proxy forces of ‘Donetsk People’s Republic’ (DPR). That entity has had death penalty on the books since 2014.
With Russia’s exit from the Convention, there may be no longer need for proxies. A show trial resulting in execution can be held under Russian jurisdiction. The only obstacles to such a scenario are the battlefield setbacks of Putin’s army and the mood of the Russian leader himself. Vladimir Putin never voiced support for the return of death penalty. His short-time substitute Dmitry Medvedev, though, back in 2012 publicly lamented the moratorium on capital punishment as an excessive concession to the West.
The possible reintroduction of the death penalty is only one possible consequence of Russian exit from the Convention system. A well-known lawyer from the south of the country has recently wondered if the Russian legal system would soon resemble that of its proxies in Donbass. Apart from capital punishment, these entities have also resurrected Soviet-era procedural codes, severely limiting the rights of the accused and defence lawyers. The former Russian judge in Strasbourg, Dmitry Dedov, has voiced similar concerns. In his opinion, Russia would either maintain its achievements from participation in the Convention, or risk ‘falling into legal archaic and the abyss of lawlessness and violation of every right’. These sanguine reflections highlight the fact that Russia without recourse to the Strasbourg Court can become a much darker place.
Government and NGO lawyers, surveyed by the Kommersant newspaper, were unanimous in noting the numerous (if incremental) positive effects of the ECtHR case-law on Russia. These effects are unfortunately often overlooked by many experts discussing the country’s relationship with Strasbourg. Of course, Russia was never a ‘model student’ in complying with its Convention obligations or implementing ECtHR judgments. However, just as education cannot focus only on model students, human rights courts cannot focus only on countries with a perfect track record. Incremental progress in an unfavourable terrain arguably has more value than fine-tuning an already advanced system. This is why an opportunity to bring a case to Strasbourg is going to be missed by many of the human rights defenders in Russia.
Looking for an exit strategy
Yet, arguably, the current situation is more than just about Russia. After all, no state party has left the Convention system for over 50 years. The Greek departure in 1969 happened when Strasbourg institutions were much ‘leaner’, and it proved relatively short-lived, being reversed by a democratically elected government in less than five years. That is why the consequences of Russia’s expulsion would undoubtedly be watched by others considering their place in the Strasbourg orbit. Some may argue that further exits from the Convention system would improve its efficiency. I would beg to differ. Greater efficiency cannot be achieved by lessening protections for individuals. That is why human rights systems would generally discourage treaty exits. As explained by Silvia Steininger, that is precisely what happened in the Inter-American human rights system. Following Venezuela’s exit from the system under the presidency of Nicolás Maduro, the Inter-American Court of Human Rights (IACtHR) issued an advisory opinion that instituted a heightened standard for domestic procedures leading to treaty exit. The goal is to ensure that such decisions are a product of genuine democratic debate.
Of course, Russia’s exit from the Strasbourg system has happened under very different circumstances. Before it could denounce the Convention, Russia was expelled from the Council of Europe by a near unanimous decision of the Committee of Ministers. That was a direct consequence of the Russian invasion of Ukraine. Though inevitable, this was in essence a political decision, which did not spell out the Convention’s role. The Committee remedied the situation a week later, clarifying that Russia would remain bound by the Convention until September 16. The ECtHR, on its part, declared itself ‘competent to deal with applications against the Russian Federation’, provided that relevant acts or omissions occurred while the country was still a party to the ECHR. These steps could be viewed as signs of rights-oriented deterrence in line with the IACtHR approach. The leaving state should not have it easy.
Russia, however, has shown in numerous ways that it sees no point in interacting with Strasbourg institutions following the expulsion. Since March 16, Russian representatives in any shape or form were absent from the proceedings before the Court or the Committee of Ministers (even though the latter directed them to). Furthermore, in early June, the Russian parliament adopted two laws, which essentially blocked any domestic effects to the ECtHR judgements pronounced after March 15. The first law specified that any decision after that date would have no impact on domestic legal proceedings in Russia. The second law removed the obligation to pay just satisfaction under judgments pronounced after March 15.
These circumstances test the limits of rights-oriented deterrence post-September 16. A month ago, Kanstantsin Dzehtsiarou succinctly summarised further options for the Court. Realistically, it has to ponder between choosing to review some of the thousands of pending applications against Russia or freezing all of them until a future political resolution. The second solution is easy from an administrative standpoint and it would arguably free up the ECtHR’s resources for other (arguably more pressing) matters. However, doing so would effectively undo the deterrence strategy, adopted by Strasbourg institutions in March. Furthermore, it would also freeze inter-state applications, dealing with the Russian-Ukrainian conflict since 2014, including the most recent one, lodged by Ukraine on February 28. That application recently saw a number of governments join as third-party interveners. Freezing all the applications against Russia would also mean an indefinite postponement of these inter-state cases, hardly a good outcome for rights-oriented deterrence. At the same time, the near certain non-participation of Russian judges (the office of Judge Lobov was terminated by the Court on September 5) raises questions in terms of compliance with Article 26(4) of the Convention, which requires a national judge to sit in Chamber and Grand Chamber proceedings against his or her state.
The future ECtHR strategy towards the pending Russian cases is arguably too important to be left to the Court alone. The issue concerns not just the allocation of finite judicial resources, but rather a comprehensive solution for treaty exit. In the face of open Russian non-compliance, such a solution could only be found in cooperation between the Committee of Ministers and the Court. In my opinion, an optimal way out would be a request for an advisory opinion under Article 47 of the Convention on the consequences of the Russian non-compliance. Considering the ECtHR case-law, such a request should be formulated narrowly, focusing on absence of Russian representation in the Committee and the Court (the June 2022 laws arguably raise concerns under Article 46 on the binding force of the ECtHR judgments and thus may not be subject to an advisory opinion). In answering the Committee’s question, the Court can determine principles for dealing with the pending Russian cases. It could openly prioritise inter-state applications or focus on particular types of violations (e.g. those associated with the war and occupation). Finally, the Court can also propose a roadmap for normalisation if Russia is to re-engage with the Council of Europe. Such a prospect may seem very distant today, but in the words of the former ECtHR President Jean-Paul Costa, ‘in politics, nothing is ever final’ (Paksas v. Lithuania, §12 of the Joint Dissenting Opinion).