May 15, 2023
by Ausra Padskocimaite
Russia’s departure from the Council of Europe (CoE) on 16 March 2022 raised several complex legal questions, not the least regarding how the European Court of Human Rights (ECtHR) should handle the many pending applications against Russia (currently around 16,000). While these questions received considerable attention from legal scholars, the issue of the execution of the ECtHR’s judgments issued against Russia has not been addressed as much (see, however, an interesting proposal by Kirill Koroteev on the implementation of just satisfaction awards in Russian cases). The post aims to fill this gap by addressing some of the aspects related to the execution of the judgments against Russia finding at least one violation of the European Convention on Human Rights (ECHR), the number of which currently stands at around 2,200 (out of the total of around 3,300 judgments issued by the ECtHR so far).
To begin with, under the Convention, states parties are legally obliged to comply with the ECtHR’s judgments issued in cases against them (Article 46(1)). Moreover, pursuant to Article 46(2), the Committee of Ministers (CoM), which is the organisation’s executive body comprised of representatives from all the member states of the CoE, is responsible for supervising the execution of the ECtHR’s judgments. Such supervision mainly takes place in quarterly three-day long confidential ‘Human Rights’ (also known as ‘DH’) meetings, where the deputies of countries’ Ministers for Foreign Affairs collectively assess compliance with the ECtHR’s judgments. The CoM is not empowered to impose financial sanctions and (mainly) relies on ‘soft’ measures to pressure and/or persuade the state to comply with the judgment.
The legal obligations arising from Article 46(1) correspond more or less to those found in the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts and include the obligation to make full reparation for the injury caused, to cease the violation if it is continuing and to prevent similar violations from occurring. In the ECHR system, the compliance measures are known as individual and general measures. The states are also obliged to comply with ‘just satisfaction’, which the ECtHR can award under Article 41.
When Russia was first suspended and later expelled from the CoE, the CoM decided that Russia would remain bound to comply with judgments issued in cases against it and that it should, with limited rights, continue to participate in the CoM’s DH meetings when the Russian cases were on the agenda. This is consistent with the Article 70 of the Vienna Convention on the Law of Treaties, which provides that a state’s withdrawal from a multilateral treaty does not affect any right, obligation or legal situation created through the execution of that treaty prior to the withdrawal.
However, since March 2022, Russia has stopped communicating with both the ECtHR and the CoM. It has also not provided information about the progress of execution of the ECtHR’s judgments, which the states are expected to submit to the CoM on a regular basis. Moreover, it adopted legislative changes, which inter alia prevent the execution of judgments of the ECtHR issued after 15 March 2022, the date on which Russia started its withdrawal from the CoE.
It should be underlined that as a member Russia had a selective and minimalist approach to compliance with judgments of the ECtHR. Since 2016, it has continuously been the country with the largest number of non-executed judgments and was the only state party, which formalised the right not to comply with the ECtHR’s ‘unconstitutional’ judgments in its Constitution as well as declared two judgments of the ECtHR as ‘impossible’ to execute. Besides, not infrequently (especially in recent years), it simply did not submit information about the progress of execution and undertook measures, which arguably went against the ‘conclusions and spirit’ of the ECtHR’s binding judgment (for example, despite its assurances that the so-called ‘anti-gay propaganda’ legislation would not influence the execution of the judgment on the right of peaceful assembly of LGBT persons (Alekseyev v. Russia) it regularly used the said law to ban such assemblies). Such behaviour cannot be regarded as compatible with the obligation to comply with the ECtHR’s judgments in good faith.
After Russia’s expulsion from the CoE, the CoM has continued to supervise the execution of the Russian cases in a more or less ‘business as usual’ manner, namely, by scrutinising the adopted (or rather the required) individual and general measures during its DH meetings. However, as pointed out by Judge Wojtyczek in Fedotova and Others v. Russia case, it is questionable whether, from the point of view of international law, Russia is still required to adopt general measures. This is because the duty to cease the violation and to offer appropriate assurances and guarantees of non-repetition are ‘future-looking’ and, as pointed by Wojtyczek, Russia’s departure from the treaty ‘automatically guarantees not only the cessation of an ongoing violation but also the non-repetition of similar violations in the future.’
The argument of Judge Wojtyczek goes even further, namely, that together with Russia’s failure to appear before the Court, the judgment (as well as other judgments against Russia issued after 16 September 2022) does not have a precedential value and does not produce an erga omnes effect. A Lithuanian court of first instance has recently relied on this argument (among others) to dismiss a request of a same-sex couple to register their civil partnership. It is, however, unclear why Russia’s self-imposed non-participation should affect the Court’s authoritative interpretation of the Convention’s norms. The ECtHR’s intervention would be helpful in bringing clarity on these issues.
In terms of the CoM’s supervision, according to the CoM’s latest Annual Report, 25 Russian cases were examined in 2022 and as many as 6 Russian cases are on the agenda of the next DH meeting in June. In fact, since Russia’s departure from the system, the CoM has adopted more interim resolutions criticising Russia’s flawed response to the judgments than in any other previous year (8 such resolutions were adopted in 2022). Moreover, the CoM has taken additional measures such as encouraging the Secretary General to write letters to Russia’s Minister of Foreign Affairs, keeping a close contact with civil society actors and others.
While the CoM’s position that Russia must comply with binding judgments of the ECtHR is welcome and should be maintained, it is questionable whether under the current circumstances the CoM is able to achieve this aim. Existing research is in general sceptical about the ability of external actors to influence compliance with human rights norms of non-democratic states, which lack material and social vulnerability, i.e. are not economically dependent on other states and do not care about their reputation as law abiding and human rights respecting states. Since 24 February 2022, Russia has arguably become both less democratic and less socially vulnerable. As the CoM regularly emphasises in its Annual Reports, the execution of judgments of the ECtHR is based on a ‘constructive dialogue’ with the national authorities. No such dialogue currently exists with Russia. Since the most serious sanctions of suspension and expulsion are no longer relevant, any ‘soft’ measures at the CoM’s disposal are likely to remain symbolic and futile.
Thus, one wonders whether the CoM’s (limited) time would be better used for focusing on other non-compliant member states, where its interventions still might make a difference. According to the CoM’s latest Annual Report, at the end of 2022, there were 3,760 pending (falling short of full compliance) judgments concerning the remaining 46 members of the CoE (only two countries, Liechtenstein and Andorra, did not have such judgments). Out of these, around 500 judgments, revealing a distinct and often systemic problem on the national level, have been pending execution for longer than five years. Moreover, using arguments similar to those of the Russian Constitutional Court, the Polish Constitutional Tribunal (PCT) has declared parts of the ECtHR’s judgment against Poland ‘unconstitutional.’ According to the Polish government, which emphasises that the ruling of the PCT ‘is not unique,’ those parts of the ECtHR’s judgment have ‘no legally binding force.’ Thus, one might say that while Strasbourg has left Russia, Russia has not necessarily left Strasbourg.
Although judgments of the ECtHR can also have a symbolic value, full compliance should be the ultimate goal of any judicial institution. Russia’s non-compliance with the ECtHR’s judgments posed a challenge for the system (almost) from the very beginning and one might ask whether a tougher stance of the CoM while Russia was still a member would have made a difference. The answer (or rather an attempt to provide an answer) is beyond the scope of this post, but one might argue that no system is effective a hundred percent (let alone an international one), and there might be different implications of trying and failing and not even trying. While at present the CoM might not have the tools to ‘force’ Russia to comply, it should look for other ways to ensure that the victims are compensated and/or, as proposed by other scholars, consider making compliance a precondition for Russia’s return to the system (if and when this happens).
When the current mechanism for executing the ECtHR’s judgments was created in 1950, the CoE was largely comprised of democracies, which relied on each other’s good faith and the Court’s moral authority to ensure compliance. Whether that mechanism is still capable of ensuring compliance by today’s 46members is an open question. That is something that the member states should reflect on as they meet in the historic Fourth Council of Europe Summit in Reykjavik on 16-17 May, while remembering that for the time being it is themselves that have the responsibility for both complying with the ECtHR’s judgments and supervising such compliance. The system’s credibility and even survival might depend on how seriously they take these obligations.