No easy way out: the Strasbourg Court and legacy Russian cases

Dmitry Kurnosov

Russia’s expulsion from the Council of Europe (‘CoE’) and, consequently, from the European Convention system has left almost 17 thousand cases pending before the European Court of Human Rights (‘ECtHR’, ‘the Court’). That number will rise further as the Court has declared that it will accept applications concerning acts and omissions under Russian jurisdiction up until 16 September 2022. Over the past few months the ECtHR has spelled out how it aims to proceed with the legacy of Russian membership. This contribution will summarize the Court’s position and explore its consequences.

Strasbourg Court in a tough spot

As discussed earlier, Russia’s expulsion from CoE had several consequences. First, Russian government representatives ceased to participate in the ECtHR proceedings. Then, Russia adopted a federal law that absolved the government from the need to comply with any Strasbourg judgments finalized after 16 March 2022. Finally, on Russia’s exit from the Convention, the ECtHR abolished the office of the country’s national judge, hitherto held by Mikhail Lobov. In spite of the latter decision, Mr. Lobov continued to sit on the panels adjudicating earlier cases (see Fedotova and Others v. Russia, para 23). That procedural step was not without its criticisms as I will discuss below.

The resulting situation had arguably put the Court in a tough spot. The ECtHR procedures presuppose that the respondent state is given multiple opportunities to respond to a claim of an alleged Convention violation. Once the case is deemed admissible, it is communicated to the respective government representatives for their written observations  (Rules of Court 58 and 59). They can further state their position in public hearings if such are held. Finally, a judge from the respondent state is always part of the Chamber or Grand Chamber composition that decides on the judgment (Article 26 (4) of the Convention).

That said, the ECtHR has arguably long moved from the intergovernmental approach that defined its first decades. Today the governments have relatively little say over the direction of the case once the application is deemed admissible in Strasbourg. And even if they do, the Court has the (procedural) final word. In today’s Court, the involvement of the respondent state is meant to ensure factual accuracy and provide insights into the workings of the domestic legal system. Ideally, it should foster cooperation between the ECtHR and the relevant stakeholders within the respondent state.

Yet, the domestic actors retain the actual final word on the implementation of the ECtHR judgments. During its membership, Russia’s ‘habit’ of partial compliance has brought about thorny questions for the Court. However, the situation since June 2022 posed a question of a whole new magnitude. What to do if the respondent state shows no interest in proceedings and openly indicates its unwillingness to comply with any resulting judgment?

The search for a procedural solution

Earlier I have argued that even in such circumstances a human rights court has to be careful in excluding states from its jurisdiction, even if said states repeatedly fail to respect its judgments. First, there is the question of victims’ rights. If proceedings end with the exit of the respondent state, they would not receive even the symbolic justice. Then, there is a strategic issue of deterring treaty exit. If leaving a court’s jurisdiction becomes a get out of jail free card, the prospect might prove tempting for states. For instance, they might seek to pre-empt an unfavorable judgment by withdrawing. Against this background, it is not surprising when human rights courts seek to make leaving their jurisdiction difficult. This is the case, for instance, for the Inter-American Court of Human Rights, where the consequences of the Venezuelan treaty exit are still being litigated. The ECtHR took a first step in a similar direction when it declared (Resolution of 16 March 2022) that the Convention continued to apply to Russia up until 16 September 2022. Thus, the Russian treaty exit did not free it from future proceedings in Strasbourg. Yet, the ECtHR declaration did not clarify the procedural mechanics of what these proceedings would look like.

These mechanics are becoming clearer now. In November 2022, the Court indicated that the Section President was going to appoint ad hoc judges in respect of Russia as a respondent party in a number of cases. Usually this position is filled from the list submitted by the respondent party. However, Rule 29 of the Court’s Rules allows for a special mechanism when the position cannot be filled in this way. In such a situation, an ad hoc judge can be appointed from among the sitting judges. The Court has indicated that this mechanism is going to be used in the other legacy Russian cases.

In its recent judgment in Svetova and Others, the Court has further clarified the procedural aspects of such cases. First, it underscored that Article 58 of the Convention means that expulsion does not release the state party from its obligations. This reading of the document aligns with the Court’s own March 16 resolution. The obligations include ‘a duty to cooperate with the Convention bodies’ for as long as the Court remains competent to deal with the Russian legacy cases. The ECtHR has also noted that it faced instances of state parties refusing to take part in the proceedings, which did not prevent it from examining the applications. One of those instances involved Turkey in 2000 failing to submit its memorial in the inter-state case against Cyprus, and then not attending the public hearings. More topical for the situation at hand is the ‘Second Greek case’ from 1970, an inter-state case about the court-martial of opposition activists by the military junta. Notably at the time, Greece had already withdrawn from the Council of Europe, while remaining bound by the Convention until June 1970. This had led the Commission (the screening body in the pre-1998 era of the ECtHR) to declare itself competent ratione temporis to deal with the application. In July 1970 the Commission declared the application admissible. However, in October of that year it held that in the view of ‘the special and unprecedented situation’ the case would not proceed any further. Ultimately it was resolved only after Greece rejoined the Council of Europe in October 1974. The situation with the consequences of the Greek withdrawal was different in one other aspect. In De Wilde, Ooms and Versyp, the Court decided that after Greece’s withdrawal the country’s judge would no longer take part in the proceedings (although he earlier voted on admissibility of the case). Judge Poláčková in her dissenting opinion in Fedotova and Others noted that in allowing Russian judge Lobov to vote on merits of that case, the ECtHR disregarded its 1970 precedent (paras 7-12). Thus, the reference to the ‘Second Greek case’ can only be understood in a very narrow procedural sense, concerning the Court’s jurisdiction ratione temporis.

The fact-finding challenge

Therefore, it can be inferred that the respondent state has to cooperate with the Court even after leaving the Convention. If it does not, the ECtHR can rely on its Rule 44C. That provision effectively gives the Court a free hand in the face of obstructionism by any of the parties, allowing it ‘to draw such inferences it deems necessary’. The Rule also specifically notes that a failure by the respondent party to effectively participate in the proceedings ‘shall not, in itself, be a reason for the Chamber to discontinue the examination of the application’.[i] The Court is careful to note that it does not mean that the opposite is true – refusal of the respondent state to participate does not mean that a Convention violation will be established by default. As stated in Svetova and Others, ‘the failure of the respondent State to participate effectively in the proceedings should not automatically lead to acceptance of the applicants’ claims, and the Court must be satisfied by the available evidence that the claim is well founded in fact and law’.

Even if applicants are not going to prevail by default, the absence of the respondent government is likely to make things challenging for the Court. As stated in Abu Zubaydah, ‘…if the respondent Government in their response to his allegations fail to disclose crucial documents to enable the Court to establish the facts or otherwise provide a satisfactory and convincing explanation of how the events in question occurred, strong inferences can be drawn’ (Abu Zubaydah v. Lithuania, para 482). Such a standard for dividing the burden of proof presupposes a generally cooperative respondent government. In the absence of such cooperation, the ECtHR can sometimes have difficulties in establishing the facts of the case.

Such difficulties have already occurred in cases, involving the situations outside of the territorial jurisdiction of the contracting parties. For instance, in N.A. v. Finland the Court initially saw no reason to doubt the death of the applicant’s father in Iraq. The Strasbourg judges were satisfied with the photocopies of a death certificate and a police report, even though they were not verified by the Finnish authorities. The documents eventually proved to be forged and the applicant was convicted for aggravated fraud. The respondent government requested the ECtHR to revisit the case, and the application was found inadmissible.

The issue of whether documents submitted to Strasbourg were authentic has already featured in Russian cases before the ECtHR. In Davydov and Others, the respondent government questioned the veracity of preliminary electoral tallies, relied upon by the applicants. The Court noted that these tallies were ‘noted by various observers, candidates and members of the electoral commissions’ despite being questioned by domestic authorities and courts (Davydov and Others v. Russia, para 245). Thus, the ECtHR can also make inferences from the conduct of other relevant actors and the general context of the situation at hand.

Therefore, due to the practical absence of the respondent government in the proceedings, the Court will have to rely on a situational assessment to verify the facts of the case. Such an assessment should be easier in some cases than in others. For instance, if the claim of a violation stems from an officially published regulation or an established administrative practice, it would not be difficult for the ECtHR to establish the facts of the case. Similarly, in some situations certain physical manifestations (e.g. signs of torture) would suffice (see generally Abu Zubaydah v. Lithuania, para 483). In borderline situations, one can imagine that the reputation of an applicant could also play a role. Inter-state applications and those by reputable NGOs might have a faster way to the Strasbourg docket. Indeed, looking into the communicated cases involving Russia since September 2022, the ECtHR has so far selected a number of applications dealing with the human rights consequences of the annexation of Crimea and those from the organizations affected by the Russian laws on ‘foreign agents’ and ‘undesirable organizations’. In these cases the facts at issue are unlikely to be in doubt as they deal either with established practices or with events, which are public knowledge.

If the Court is to implicitly give priority to such applications, it would also be wise for strategic reasons. Current situation negates the role of the ECtHR as a source of non-pecuniary compensation or a potential impetus for legal reforms in Russia. The country recently took an additional step of formally renouncing the European Convention. This means that references to the ECtHR case-law are likely to be completely erased from the future jurisprudence of the Russian courts (though that process was underway long before Russia’s expulsion). In these circumstances the role of the ECtHR in Russia is strictly limited to naming (and not even so much shaming) egregious and systemic human rights violations. Beyond new situations of such caliber, the Court’s press release assumes that approximately ‘12,000 of the pending applications against Russia (i.e. 72% of all the pending applications) raise legal questions in relation to which the Court’s case-law is already well-established’. Thus these cases can be dealt with under a simplified procedure under paragraph 1(b) of the Convention’s Article 28.

The future of Russian legacy cases

The Strasbourg Court seems to have found procedural tools to adjudicate the legacy Russian cases in absence of the representatives of the respondent government. These tools are likely to be sufficient to establish Convention violations in cases of systemic issues or publicized human rights abuses. The Court would also adjudicate the inter-state case of the Netherlands and Ukraine against Russia. After the recent decision of the ECtHR to join applications, in these proceedings the Court would also consider the events during the current Russian invasion of Ukraine. At the same time, there are three further inter-state applications and over 8500 individual applications concerning Russian actions in Ukraine after 2014. Thus, many of the legacy cases are closely linked with the very current bloodshed.

Given that official Russia is likely to ignore anything that happens in Strasbourg, the ECtHR judgments in legacy cases are not going to have any effect on the human rights situation in the country. Yet, they are not a waste of the Court’s limited resources. The reasons for why legacy cases matter go beyond deterring potential future departures from the Convention system.  The judgments in these cases would help inform the likely multitude of judicial proceedings dealing with the aftermath of the ongoing Russian invasion. On a historical plane, they would help build a holistic legal picture of what went wrong in the continent, exposing the inherent risks of predatory authoritarianism.

[i] This rule was not applied fully in Fedotova and Others. While the Russian government representatives failed to attend the scheduled public hearings, the applicants were willing to send their lawyers (although past the Court-set deadline). Yet the hearings were eventually canceled. See Fedotova and Others v. Russia, paras 14-20.