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

Compensation for Violation of the Right to a Fair Trial

“The Law on ‘Compensation to Citizens for Violation of the Right to a Fair Trial within a Reasonable Time’ is a politically motivated statute”. This was a conclusion of participants in a roundtable on “Compensation for Untimely Resolution of Court Disputes as a Filter of Applications to the European Court of Human Rights” which took place in Yekaterinburg, Russia, in July this year.

On 4 May 2010, Russian federal law on “Compensation to Citizens for Violation of the Right to a Fair Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time” (the Law) entered into force and examples of its being practiced began to appear.

The aim of the Law is to create a national remedy to the violation of the right to a fair trial within a reasonable time, including the right to the enforcement of a final judgment. The Law is expected to reduce the number of “Russian” cases before the European Court of Human Rights (the ECHR). Approximately 30% of all these cases concern the right to a fair trial. The Law allows complainants to request “reasonable” financial compensation for violation of “reasonable” time limits in the consideration of criminal and civil cases, including the enforcement of judgments.

The first draft of the Law was submitted to the State Duma by the Supreme Court back in 2008 . However, the first signals of such an initiative came from the President’s office back in 2005. This was a time when Russia led the number of applications before the ECHR. In a speech at a Tumen State University conference in 2005, Adviser to the President, Veniamin Yakovlev, stated that the main tool to preserve the sustainable and effective work of the ECHR should be development of a national means to offer human rights protection. Mr. Yakovlev believed that an internal system of “filters” for applicants to Strasbourg was needed so that problems could be solved long before they reached the ECHR. It was especially urgent as violations were becoming systemic, creating a precedent which led to increasing numbers of judgments against Russia. Such a “filter” would be provided by the proposed Law, which became a reality on 4 May 2010. Whereupon, the national courts immediately received applications for compensation for delays in the administration of justice and questions surrounding its implementation were raised.

On 22 July 2010, a roundtable on “Compensation for the Untimely Resolution of Court Disputes as a Filter of Applications to the European Court of Human Rights” was organised by the Discussion Club on the issues surrounding the administration of justice. Participants included: representatives of the judiciary (Chief Justice of the Arbitrazh Court of Sverdlovsk oblast, judge of the Charter Court of the Sverdlovsk oblast), representatives of state organs (Ombudsman of the Sverdlovsk oblast, deputies of the Sverdlovsk Oblast Duma, a representative of the Ministry of Finance of the Sverdlovsk Oblast, the Department of Federal Bureau of Bailiffs in the Sverdlovsk Oblast), representatives of civil society (Association of Jurists of Russia, Urals Legal Chamber, NGO SUTYAJNIK and members of the Civic Chamber of the Sverdlovsk Oblast, advocates, journalists).

The most important question regarding the implementation of the Law was discussed first. As the Chief Justice of Arbitrazh Court of the Sverdlovsk Oblast, Mrs Reshetnikova, stated, “It is the intention of the legislator that the Law does not provide any remedy for the non-execution of judgments that do not regard the budget sources or budgetary system of the Russian Federation. For instance, when a judgment against a private party (not a government agency) is to be enforced by bailiffs, it may not be enforced (and this is not necessarily the fault of the bailiffs).

Therefore, the Law provides a remedy for non-execution of judgments only in those cases where the defendants are financial agencies of the state (Ministries of the Russian Federation). The legislation does not provide any compulsory measures for the execution of any judgments regarding those who are in charge of budgets. Inter alia, bailiffs do not have such jurisdiction and all such payments are expected to be made in goodwill.

Advocates were also interested in the possible application of the Law to the violation of “reasonable” time limits of pre-trial detention. The conclusion was the same – the Law does not apply to excessive detention periods.

Participants also discussed the definition of a “reasonable” period for proceedings and the execution of judicial decisions where a violation as found and where financial compensation could be applied for without applying to the ECHR. This period was not seen as the same as the two-month limit for the consideration of a case by a court under the Civil Procedure Code, for instance. This was a more complicated category which should be measured according to the practices of the ECHR. It consisted of four major parts: the procedural complexity of a case (number of testimonies heard, expert hearings undertaken); the behaviour of the judge, and state offices who were party to the case; the behaviour of applicants themselves (frequent requests for postponement of hearings); and the importance of the case to the applicant (labour disputes and appeals for compensation for dismissal). The “reasonableness” of any amount of compensation would also depend upon the practices of the ECHR, the first time that legislation was required to take these into account – “The amount of compensation for the violation of the right to administration of justice within a reasonable time or the right to the execution of a judgment within a reasonable time is determined by court… by taking into account… practice of the European Court of Human Rights” (Part 1 of Article 2 of the Law).

Many questions were posed about the order of any execution of judgments regarding compensation regarding the Ministry of Finance of the Russian Federation and the Ministry of Finance of Sverdlovsk oblast. The representative of the Ministry of Finance of Sverdlovsk oblast replied by submitting a letter from the Minister which stated that there were no outstanding judgements to be executed by the Ministry of Finance of Sverdlovsk oblast. Representatives of legal firms defending the interests of entrepreneurs believe that the main value of the Law lies in the provision of a right to have recourse against the person who fails to honour the reasonable length of any proceedings, establishing personal responsibility. However, this had not prohibited by any previous statutes; according to the Ministry of Finance of Sverdlovsk oblast such practice does not exist.

At the end of the roundtable, participants arrived at the unanimous conclusion that the Law will enhance Russia’s reputation at a European level. However, the question remains whether a Law with such narrow sphere of application will serve the interests of common people.

Any final conclusions are premature. The Plenum of the Supreme Court of Russian Federation and the Plenum of the Supreme Arbitrazh Court of the Russian Federation are to issue a joint normative Regulation on the application of the Law in December this year.

Published at EU-Russia Center

This article in Russian

09.08.2010