by Dr. Anton Burkov , PhD (Cantab), LLM (Essex)

Ratification of Protocol 14 to the Convention on Human Rights

The main news in the Russian judicial system over the past month has been the Russian Federation’s ratification of Protocol 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). This means that long awaited reform of the European Court of Human Rights can now begin.

The Russian Federation became the last of the 47 member-states of the Council of Europe to ratify Protocol 14. The aim of the Protocol is, inter alia, to improve the independence of the European Court of Human Rights’ judges, through extension of their terms of office from six to nine years, and without the opportunity for re-election, in order to improve the speed of consideration of cases, etc.

The State Duma of the Russian Federation first considered the question of the ratification of Protocol 14 in December 2006. At that time, deputies who voted against it explained their decision giving the following reasons – under Protocol 14 decisions on admissibility could be delivered by a single judge, instead of three as required under Protocol 11 to the Convention. In 2003 and 2004, Russian civil and criminal procedure legislation had been amended to the effect that lay judges were excluded from the administration of justice. This meant that civil cases and the majority of criminal cases where now to be heard by a single judge, not to mention consideration on admissibility issues.

Four years later, Protocol 14 has been ratified.

But, what motivated the Russian government to ratify Protocol 14?

Interviews with state officials showed that the Council of Europe took the Russian Federation’s opinion on Protocol 14 into account. However, it should be taken into account that Protocol 14 needed to be ratified in the same format by the other 46 member-states.

When faced with the problem of Russia blocking the Protocol intended to reform the work of the European Court of Human Rights, it became obvious that the reform procedure of the European Court of Human Rights itself had to be changed and made more flexible.

At the 2008 seminar that celebrated the tenth anniversary of the entry into force of Protocol No. 11 to the Convention, (which restructured the European Court of Human Rights), participants agreed that in order to save the right of the individual to petition the administration of justice by the Court, there would need to be reform, even without Protocol 14. There were suggestions that Protocols be abandoned in favour of the introduction of procedural changes, adopting the Statute of the Court to incorporate procedural issues. As for the provisions on material rights, they would be left to the Convention and Protocols.

Still, even if Protocol 14 had been adopted in time (2006), the reform that it provides for would have much later. Even at the time of the ratification process of Protocol 14, the Court needed much more radical reform, let alone today’s situation.

The solution of the problem is seen in the adoption of the Statute of the Court. The main idea of this Statute is to enable changes to the working procedures of the Court, without resorting to a complicated and time consuming process of ratification of protocols to the Convention. The Committee of Ministers of the Council of Europe would introduce changes by issuing unanimous resolutions without having to introduce amendments to the Convention every single time.

On April 30th 2009, the Parliamentary Assembly of the Council of Europe issued Protocol 14-bis to the Convention which allowed one judge to declare any application inadmissible or strike it out of the Court’s list of cases, (until the entry into force of Protocol 14 this required three judges). If declared admissible, a committee of three judges will consider applications on their merits. Both provisions will apply to all applications pending before the Court where it is in force for High Contracting Parties. They may also be applied on a provisional basis and cease to be in force, or applied on a provisional basis when Protocol No. 14 comes into force. Protocol 14-bis entered into force after three High Contracting Parties to the Convention gave their consent to be bound by the Protocol.

Therefore, in order to preserve the right of the individual to petition for 800 million Europeans, the Council of Europe continued to reform the European Court of Human Rights without the consent of the Russian Federation. As a result any deliberate (if indeed it was deliberate), blocking of the reform of the European Court of Human Rights by the Russian Federation have no effect any longer.

No matter what the true reasons for the ratification of Protocol 14, President Dmitry Medvedev, recently made the following statement: “We are interested in improving our judicial system so as to make it effective and to create an environment where our citizens do not need to resort to international courts or, at the very least, will need to do so much less often. Our task is to create a national system, effectively ensuring justice in Russia. But this is not an easy process.”

This statement was also spread through mass media by many politicians. For instance, the Minister of Justice of the Russian Federation, Alexander Konovalov stated: “Justice must be administered by taking into account the case-law of the European Court of Human Rights.” It appears that the political will to ratify Protocol 14 included not only the reform of the European Court of Human Rights, but also the will to improve the quality of the administration of justice in Russia. Future practice by the national courts will demonstrate whether judges are working to bring international human rights’ standards home by implementing provisions of the Convention in the light of the case-law of the European Courts of Human Rights in their judgements.

Until recently, the use of the provisions of the Convention has been satisfactory only in the jurisprudence of the Constitutional Court of the Russian Federation and in rare occasions in the case-law of district courts. In this regard, it appears that it is no coincidence that in the first issue of its official 2010 bulletin the Supreme Court of the Russian Federation published a judgement of the Presidium of the Supreme Court of the Russian Federation which demonstrates the application, by a Russian Court, of the Convention. This specific judgement of the highest instance of the Russian Federation, stipulates that a violation of the Convention is an admissible ground for reopening of a criminal case.

We should hope that Protocol 14 begins not only the long awaited reform of the European Court of Human Rights, but also a campaign aiming to improve the work of Russian courts and therefore provide fewer reasons for applications by individuals to the European Court of Human Rights.

Weekly Column EU-Russia Centre http://www.eu-russiacentre.org

This article in Russian

27.02.2010