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

Improvement in Compliance of the Russian Judicial System with the International Obligations Undertaken by the Russian Federation

On June 1st, Protocol 14 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) entered into force its long-awaited ratification by the Russian Federation, the last member-State of the Council of Europe to do so. As a result of the promulgation of the law on the ratification of Protocol 14, the President of the Russian Federation made an important speech stating that : “Our task is to create a national system, effectively ensuring justice in Russia…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.” This statement implies that the Protocol 14, which enables the start of much needed reform of the European Court of Human Rights (ECHR), will require important reform of the Russian Federation judicial system. This is also confirmed by a series of legislative initiatives and actions aimed at improving the transparency and responsibility of Russian judges in their administration of justice.

In the first place, the Presidential Council on Civil Society Institutions and Human Rights, joined by the Council of Judges of the Russian Federation and the Council of Journalists of the Russian Federation underwent a significant initiative to start a dialogue on the question of judicial reform in Russia and improved cooperation between the judiciary and civil society. As a result of this initiative, on 15 April 2010, the Presidium of the Council of Judges of the Russian Federation endorsed the creation of a Discussion club on urgent issues such as relations between the state and the civil society. Moreover, the Council of Judges recommended that similar events be held at the regional level with the support of councils of judges, ombudsmen, and non-governmental organisations in the different regions of the country.

This initiative is timely a the Federal Law No 262-FZ of 22 December 2008 “On Securing Access to Information on the Activity of Courts in the Russian Federation.” comes into force on 1 July 2010. The purpose of this law, as its title indicates, is to improve accessibility to information regarding the courts’ functioning, as well as their decisions, taking into account contemporary developments such as broad internet access. Indeed, this law prescribes that information on the courts’ activity be publicly available through their web-sites, in particular with regard to the decisions of all Russian courts. This is an unusual step for a country where there is civil law such as Russia, where, until recently, the only judgments accessible to the public were decisions by the Constitutional Court and partial decisions by the supreme courts. Hence, although some courts are ready for the implementation of such a law, in terms of the online publication of their judgments (system of arbitrazh courts, Constitutional Court and Supreme Court of the Russian Federation the press appears to indicate that there seems to be a certain unwillingness on the part of some district courts and justices of the peace in the matter. Nevertheless, under the initiative previously described, the Council of Judges of the Russian Federation (a non-governmental organisation) distributed a document which explains to judges in what manner and following which norms their judgments should be published online, for instance, names of the parties should not be published.

Previously, on 25 March 2010, the President of the Russian Federation submitted a draft 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”. (Burdov. v. Russia (No. 2), of 15 January 2009, para 6 of the resolution part of the judgement). The law entered into force on 4 May 2010, after which, the courts started receiving applications based on its provisions.

However, the attention of the President of the Russian Federation isn’t merely focused on the compliance of the Russian Federation with its international obligations regarding the norms of fair trials and consideration of cases and execution of courts decisions within a reasonable time. There is evidence that his attention is also directed towards more general measures, aimed at , the country’s international obligations in the area of human rights, in particular , the execution of ECHR judgments, as well as decisions of the Constitutional Court of the Russian Federation.

In reality, Russian legislature does not provide mechanisms for carrying out state obligations inherent to the ratification of the Convention, as understood in the light of the ECHR’s case-law. AsI write, a draft edict (ukaz) has been presented by the Russian President “On the Monitoring of Law Enforcement Process in the Russian Federation.” This draft introduces changes to the regulation of the Ministry of Justice and introduces a regulation on the process of law enforcement in the Russian Federation. The latter assigns the Ministry of Justice of the country and other federal organs, as well as organs of the subjects of the Russian Federation, to carry out adequate monitoring of the implementation of ECHR judgments and decisions of the Constitutional Court, which requires the promulgation of federal laws and other normative acts by Russian legislative authorities.

Moreover, this draft edict demands that the Russian Supreme Court and the Supreme Arbitrazh Court take into account the results of their monitoring of the law endorsement practices when adopting binding regulations on issues of judicial practice (regulations by the plenums of these supreme courts). Thus, the edict requires the introduction of legal principles developed by an international court, the ECHR, into national judicial practice.

This Presidential Edict could be a significant step in the execution of ECHR judgments by Russia with the introduction of general measures. Indeed, while there have been no difficulties in payment of compensation when ordered by an ECHR judgment delivered against Russia, a very different situation arises when provision measures of general character is needed. As pointed out by Anna Demeneva, “the best effect in the area of carrying out by the state its international obligation under the Convention is achieved if two types of juridical consequences of ECHR judgments are met: undertaking measures of execution of judgments in particular cases, and regularly orienting activity of all organs on legal provisions of the ECHR in the framework of national law enforcement and legislative procedures”

Today, there is no statute devoted specifically to the execution of Russia’s obligations under the Convention and the ECHR’s judgments. Therefore, the following question remains unanswered: what place is there for ECHR judgments in the national legal system, the procedure of their official publication, the order of their execution, and most importantly, the personal responsibility of state officials? It is of the utmost importance that the Presidential Edict is followed by an adequate federal law and the effective enforcement of its provisions.

Published at EU-Russia Centre

This article in Russian

28.06.2010