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

News from Inside the Judicial System of the Russian Federation: Direct Implementation of the Convention for the Protection of Human Rights and Fundamental Freedoms

Previous columns on the Russian Federation’s legal system highlighted the recent developments in the relationship between Russia and the Council of Europe, as well as the understanding outlined by the Russian President, State Duma and highest courts in Russia about their human rights’ international obligations. At that time I expressed the hope that these high level officials’ initiative to maintain human rights obligations at an international level, would be taken up by the lower courts, which constitute the basis of the Russian judicial system.

Recent research identifies four levels of willingness and effectiveness in the implementation of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) by the lower courts. The first level is when judges completely ignore, or react with hostility, to references made to the Convention, not to mention the case law of the European Court of Human Rights (the ECHR). In such a case, the judges neither refer to the Convention in the first part of their judgement (parties’ arguments), nor in the reasoning part. The second level is when the judges very briefly mention the Convention-based arguments (without referring to ECHR case law), but do not analyse the arguments. Therefore, there is no real implementation of the Convention. Similarly, at the third level, judges briefly state that the “party’s reference to the Convention is unfounded”, without giving any reasons for such a conclusion. There is then no evidence that the arguments based on the Convention have been thoroughly analysed by the judges. Finally, the fourth and ideal level of willingness and effectiveness in the implementation of the Convention is unfortunately also the rarest. Nevertheless, the cases where district judges truly analyse and base their decisions on the Convention as well as ECHR case law happen more often than in the practice of the Supreme Court of the Russian Federation, but less often than in the jurisprudence of the Constitutional Court of the Russian Federation. The following recent decision by a local court perfectly illustrates the fourth and ideal level and therefore serves as an example of good practice.

On 24 March 2010, the Oktiabrskiy Disctrict Court of Saransk ruled, after a thorough analysis of Convention-based arguments put forward by the applicant, that the decision of the head of the Rehabilitation Colony No 18 not to allow a member of a human rights organisation to meet four prisoners of the colony was unlawful.

The Mordovian Human Rights Defence Centre had first received information that four convicts were beaten on their arrival to the Rehabilitation Colony No 18 on 22 March 2009. A member of the Mordovian Human Rights Defence Centre, Sergey Mariyn, then appealed to the administration of the Rehabilitation Colony No 18 to request a meeting with the prisoners in order to prepare an application before the ECHR on their behalf and obtain power of attorney. The request was denied and justified by the fact that the applicant had no “documents, which confirmed the right to give legal assistance.” This episode was brought before the court by a member of the NGO. The court supported the plaintiff’s arguments and ruled that the head of the Rehabilitation Colony No 18 had hindered the right to appeal before the ECHR by refusing permission for the NGO to meet the prisoners.

What needs to be highlighted is that the court based its decision on Article 34 of the Convention, in the light of ECHR case law, stating that Sergey Maryin had requested a meeting with the prisoners in order to prepare documents needed for an application to the ECHR. Indeed, the court quoted the ECHR judgement of 8 November 2007 in Knyazev v. Russia: “The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy.”

Therefore, with the analysis of Article 34 and the relevant case-law, the court’s conclusion was that Article 34 of the Convention, Rule 36 of the Rules of the ECHR, and Section 22 of the Explanatory Note for Those Willing to Appeal to the ECHR provided that applicants before the ECHR can be represented by any individual, even by those who are not advocates or have no legal professional experience. Those provisions were violated by the head of the Rehabilitation colony No 18, who had created obstacles to that right of representation in the preparation of an application to the ECHR.

This successful and effective application of the Convention’s guarantees, although still rare on a national scale, is one of many examples that demonstrate a better understanding of the guarantees of the Convention by the district courts and subsequently by the Supreme Court. There is also evidence that on those rare occasions, the arguments based on ECHR case law were prompted by applicants’ initiatives rather than by the courts. Therefore, the effectiveness of the Convention’s implementation depends directly upon the arguments made by the parties, as well as the training and documentation offered to judges by the applicants and NGOs. However, the Supreme Court, for example, by introducing Regulation No. 5 of 10 October 2003 “On the Application by Courts of General Jurisdiction of the Generally-recognised Principles and Norms of International Law and the International Treaties of the Russian Federation,” has contributed to the level of awareness among district court judges regarding the need to implement the Convention.

The evolution within the four levels of application of the European human rights’ guarantees in the Russian judicial system shows that, in order for it to be effective and successful, advocates, jurists and activists of non-governmental organisations familiar with the use of those guarantees before the Constitutional Court and the Supreme Court should keep up their efforts to put forward arguments based on the Convention. In return, this should encourage the highest courts of Russia to promulgate more detailed explanations for lower courts on the issue of the use of international human rights law at the national level.

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