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

New Draft Law on Compensation for Citizens Who do not Receive a Fair Trial within a Reasonable Time

In 2010 the President of the Russian Federation tackled the problem of the way that cases were dealt with by the Russian courts in order that “citizens do not need to resort to international courts or, at the very least, will need to do so much less often.”

In February 2010, President Medvedev instigated Russia’s ratification of Protocol 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). Subsequently, on 26 February 2010, the Constitutional Court of the Russian Federation ruled that, in addition to criminal and commercial (arbitration) cases, all civil cases would be reviewed before Russian courts where a judgement by the European Court of Human Rights (the ECHR) had previously been made.

More recently, on 25 March 2010, he submitted a draft of a federal law “On Compensation to Citizens for Violation of the Right to a Fair Trial within a Reasonable Time or the Right to Execution of a Judgement within a Reasonable Time.” This new bill was drafted in order to comply with an ECHR ruling which established an obligation to “set up an effective domestic remedy or combination of such remedies which secures adequate and sufficient redress for non-enforcement or delayed enforcement of domestic judgements in line with the Convention principles as established in the Court’s case-law”.

This ECHR ruling was preceded by many other similar “clone” cases against Russia, representing approximately 30% of all the cases considered by the ECHR. Previously, in 2006, the Department for the Execution of the European Court’s Judgements had drawn the attention of the Russian Government to the problem of the execution of the national court’s decisions.

In addition, the Constitutional Court of the Russian Federation reviewed at least twice before 2010, the issue of the lack of an effective domestic legal remedy for citizens who had been subject to a violation of their right to a fair trial. Nevertheless, the problem that remained was the absence of any statute that could enable the establishment of a mechanism of forced execution of national court’s decisions against the treasury of the Russian Federation. Indeed, the bailiff system does not have jurisdiction in this area. This problem was first highlighted by the Constitutional Court’s judgement of 14 July 2005 N 8-P in 2008, when the Constitutional Court turned to this issue again and ruled that although the mechanism of forced execution of national court’s decisions against the state was absent, the federal legislator nonetheless has a duty to set up measures to secure the execution of courts’ decisions, as well as criteria and procedures to award compensations in cases of the non-execution of a national decision against the treasury of the Russian Federation

At that time, the first reaction from the Russian government was to submit a draft law “On Compensation by the State for Violation of the Right to a Fair Trial Within a Reasonable Time and the Right to Execution within a Reasonable Rime of Decisions Entered into Force.” Drafted by the Supreme Court of the Russian Federation, it was submitted to the Russian State Duma three months after the decision of the Constitutional Court of the Russian Federation of 3 July 2008 No 734-Î-P . However, his initial judicial draft law did not survive a financial review by the Government of the Russian Federation on the grounds that, as stated in the mass media, the bill established the responsibility of the federal treasury where there was a non-execution of judgements from local budgets.

In theory, the logic of the Kremlin in drafting the present law and that arising from the previous Judicial bill are the same – the creation of a compensation mechanism to protect the right to a fair trial, within a reasonable time and including the right to the execution of judgements. Then, the question is why didn’t the 2008 judicial draft become a law? Was it really an issue of lack of responsibility from local budgets, an issue that could have been fixed by the legislator during the three readings of the bill?

First of all, there are important differences between the two draft laws. The Kremlin bill puts forward compensation for delays in justice from both courts of general jurisdiction and arbitration courts, doubling the potential for application of the bill. It also extends the terms of consideration of cases and sets criteria to evaluate the reasonable length of consideration of cases as it is understood in the ECHR case-law. This means that an excessive length of consideration in cases set up under national law will not automatically lead to the legal responsibility of the state. When evaluating the reasonable speed of justice, many factors should be taken into account: the complexity of a case, the behaviour of the parties, the usual length of the administration of justice, etc.

Unlike the Judicial bill, the Kremlin bill introduces a fee (duty) payable by those filing a law suit to institute a case and provides a remedy (recourse civil action) against state officials causing delays in the administration of justice.

The amount of compensation would be determined according to the applicant’s claim, the circumstances of the case, the length of the violation and the consequences for the applicant taking into account the principles of reasonableness and fairness provided by the ECHR case-law. Therefore, it means that a court decision on a compensation could be limited to a declaration of the relevant facts of a violation of reasonableness in the consideration of a case, without actually awarding a compensation at all or awarding up to 3 000 euros. Georgiy Matushkin, agent for the Russian Federation before the European Court of Human Rights, stated that the amounts awarded for a compensation could not be much lower than those awarded in Strasbourg. According to statistics quoted by Viacheslav Lebedev, Chief Justice of the Supreme Court of the Russian Federation the average amount of compensation in the Russian judicial system is 650 euros.

In addition, and unlike the initial draft law, the Kremlin bill does not set conditions for an application to the ECHR by one of its national cases such as the consideration of a compensation case before national court. Indeed, the Judicial bill stated that exhaustion of the national compensation mechanism was a condition for an application to an international tribunal of human rights’ protection (Article 1), when in reality, only international courts can establish such criteria of admissibility. Only the ECHR has the jurisdiction to deem a particular national remedy effective under the standards of the Convention, which is one of the criteria of admissibility of an application to the ECHR.

The latter is of particular interest. How will the ECHR consider the practice of justice under such a new law, from the point of view of an effective protection of the right to a fair trial? Unfortunately, the prospect is not bright. Like the previous bill, the Kremlin bill does not provide any mechanism for forced execution of national courts’ decisions on compensation.

One must not forget that the main cause of non-execution of national judgements against the state treasury and the reason behind the majority of Burdov-like cases is the absence of a mechanism of forced execution of national judgements against the treasury and the habit of the government of not executing such judgements without forced measures. This was highlighted by the Constitutional Court of the Russian Federation back in 2005. The Kremlin bill may set up another source of Article 6 cases against Russia flowing to the ECHR, this time because of non-execution of national judgements on compensation for lengthy consideration of cases. There are good reasons to doubt that the ECHR will recognise the proposed mechanism of compensation for violations of the right to a fair trial as effective. Only time will tell.

Source: Weekly Column EU-Russia Centre

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