by Dr Anton Burkov, PhD (Cantab), LLM (Essex)
Direct Application of the Convention for the Protection of
Human Rights and Fundamental Freedoms
Last month the Russian press published a number of articles on the issue of using judgements of the European Court of Human Rights to help in the prevention of violations of the Convention for the Protection of Human Rights and Fundamental Freedoms ( for example, “Judges must always have key citations from European judgments before their eyes so that they could consider Strasbourg in their everyday practice” // Rossiyskaya Gazeta).
As reported by Rossiyskaya Gazeta, the Russian Supreme Court now includes extracts from judgments of the European Court of Human Rights (the ECHR) in its regular reviews of judicial practice, which are sent to all judges of the state. This is an initiative which should be supported. But it is difficult to omit mentioning a suggestion that could improve this initiative.
Practice demonstrates that, as a rule, judges pay attention to the Convention only where arguments relating to a case are based on the Convention and judgments of the ECHR.
Immediately after the ratification of the Convention, lack of awareness was a major obstacle to its direct application in Russian courts. But since then the situation has changed for the better. Russian judges know the provision of Article 15(4) of the Constitution very well, as well as Regulations by the Plenum of the Supreme Court on the Convention. Judges are aware that under the abovementioned legal acts, the Convention, and international law in general, is part of the legal system of the Russian Federation, and where these contradict one another, the Convention has priority over national law. They know case-law of the ECHR on Russian cases and even those of other states. This conclusion is drawn on the basis of interviews with judges and litigators, as well as from observation of the Council of Europe’s training on the Convention for judges.
However, those interviewed rarely provided examples of application of the Convention in their own cases.
The Ombudsman in Sverdlovsk Oblast, Tat’iana Georgievna Merzliakova, stated that a critical attitude towards ECHR judgments against Russia is common among judges. When in April 2005 , Anatolii Kovler, a judge of the ECHR, gave a talk before the chief justices and some judges of the district courts of Yekaterinburg, the judges disagreed with Judge Kovler on many of the ECHR cases against Russia. The criticism of ECHR judgments against the Russian Federation by Russian judges indicates their awareness of this issue.
Therefore, the problem with application of the Convention appears not only to be the lack of judges’ awareness. Advocate Ludmila Churkina also noted that often the reason behind non-application of the Convention by judges was not biased consideration of the case, but a lack of familiarity with the Convention mechanism of human rights protection on the part of both the judiciary and the litigators. This same fact was also admitted to by Justices Vladimir Andreevich Dmitriev and Tatiana Evgenievna Soboleva of Sverdlovsk Oblast Court. Where parties to cases are ignorant of the Convention, they do not come forward and request that judges implement the Convention.
Advocates of Sverdlovsk Oblast Collegium of Advocates who were interviewed gave many reasons for the poor use of the Convention’s guarantees. The most convincing argument was given by the President of the Advocates Chamber of Sverdlovsk Oblast, Igor Mikhailovich. He said that using the Convention would not yield any results, whereas the aim of advocate was to achieve a result and profit from it. Advocates from Yekaterinburg and Sverdlovsk oblast were paid by results rather than the number of hours spent on the case. Therefore, there was no point in an advocate spending time studying the instrument, keeping be up-to-date with case-law of the ECHR, and then referring to the Convention in litigation documents and oral hearings, knowing that it would not help him achieve the desired result of the case. Unlike Yekaterinburg advocates, however, Moscow lawyers do refer to the Convention, but not because it helps them to win a case. The reason is pecuniary. “Muscovites” are paid by the hours spent on a case. Moscow advocates are taken seriously by their clients when they can provide references to international instruments in their litigation documents.
Thus, obstacles to the application of the Convention are a lack of motivation for the direct application of the Convention and lack of awareness of the Convention. Attempts to educate judges on the Convention are ineffective due to this lack of motivation. Practising lawyers are not inclined to use arguments based on the Convention, since they are aware that such attempts are unproductive. The latter is of high importance, as it was noted that these arguments are crucial for the implementation of the Convention. Staff attorneys of NGOs are successful in applying the Convention because their reason for litigation, unlike that of the advocates in regular cases, is to solve larger legal issues, rather than to help a particular client.
The lack of motivation to apply the Convention creates a vicious circle and undermines any attempts to raise awareness of it. There are two possible ways of breaking this vicious circle: pressure from below (litigators) and pressure from above (the Supreme Court of the Russian Federation). Advocates and judges will use the Convention only when the Supreme Court supports its use. NGOs are not powerful enough to change the situation and make it sustainable nationwide, although there are examples of change through the application of the Convention by staff attorneys of NGOs in various regions of Russia. Here, the Supreme Court must become the major impetus to break the vicious circle by introducing motivation for application of the Convention.
Regulation by the Plenum of the Supreme Court should be employed more to educate and motivate judges, as well as practising lawyers, for the proper implementation of the Convention. Therefore, extracts from judgments of the ECHR must be included not only in regular reviews of judicial practice (accessible only to judges) but in Regulations by the Plenum of the Supreme Court which are published officially and appreciated by many litigators as a source of law.
This article in Russian
Source - EU-Russia Center