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Foreword This book is not a textbook on the Convention for a Russian audience. Its goal is much more precise. It is designed to explore the extent to which and the manner in which Russian judges are making use of the European Convention on Human Rights and its case-law in their determination of cases. Confronted with the crisis in the case-load of the European Court of Human Rights, the Council of Europe is putting all its energies into finding ways of getting domestic authorities to apply the Convention, so as to reduce the need of applicants to apply to the Court. In order to determine how best to pursue such a strategy, it is vital that the relevant authorities in Strasbourg should be aware of the reality of the situation in member States. This book is important for two different reasons and for two different types of constituencies. The Russian version could potentially have a significant impact on the work of Russian judges, prosecutors, lawyers and non-governmental organisations. It should also be required reading in various government ministries, including but not confined to the Ministry of Justice. The analysis is based not on abstract theoretical notions but on a careful reading of Russian case-law. That, in itself, may give it novelty value. It should also make the issues which are addressed “real” to judges and prosecutors in a way which academic texts do not normally achieve. The analysis and the conclusions are not the work of an outsider, albeit one with fluency in Russian. It is the work of a person trained within the Russian legal system and who has himself worked as a lawyer within the system. In the light of the author’s conclusion, it is to be hoped that the book will reach as many lawyers as possible. The message is clear. The more that lawyers invoke both the Convention and its case-law, the better are the chances that, over time, the courts will take it into account. If both lawyers and judges start using the case-law, the prosecutors will increasingly have to do likewise. If prosecutors and lawyers start losing cases they are expected to win, their professional future will require that they start addressing Convention issues in their own pleadings. The English version is of importance to a range of actors and for a different reason. For an English-speaking audience the book is not a call to action but is rather a tool to facilitate understanding, both with regard to implementation generally and specifically in relation to the Russian Federation. First, civil servants in Council of Europe member States and in the Council of Europe itself need to understand where and why the problems of implementation of the Convention are arising in the Russian Federation. Given the similarity between the legal systems of the Russian Federation and other new member States of the Council of Europe, there is a strong possibility that the diagnosis offered by this book is applicable more widely. Second, the book is also a vital tool to any lawyer or NGO working with lawyers and NGOs in the Russian Federation in assisting them to bring cases to Strasbourg. Part of the process of assistance, in my experience, requires understanding domestic remedies. To understand how domestic remedies work in practice, one needs a wider sense of how the legal system itself works in practice. It is not just the language that can be a barrier. There is also the barrier of an entirely different legal culture, particularly with regard to the functioning of legal institutions, such as the procuracy. Third, any academic who teaches the European Convention on Human Rights is increasingly required to understand how domestic implementation works in practice. There is, however, a marked lack of material in English which addresses the specific question of the implementation of the Convention by national courts. There is what might be termed “top-down” information, which recites the constitutional status of the Convention and which may refer to one or two cases in which the national court’s judgment referred to the Convention. What is lacking is “bottom-up” material, which looks at what happens when a lawyer tries to invoke the Convention before an “ordinary” court. As both a practitioner and an academic, it is that information that I need. The approach adopted in the book makes it methodologically important not just in relation to the Russian Federation but much more widely. Anyone with an interest in the judicial implementation of human rights law, whether at the national, regional or international level and irrespective of any particular jurisdiction in which they may be interested, should read this work. It is hard to think of anyone as well qualified as Anton Burkov to write this book. Even before undertaking an LL.M. in International Human Rights Law at the University of Essex, he had already been involved in an advisory capacity in a case before the European Court of Human Rights. He was already a qualified lawyer. He already knew that the Convention provided a tool for redressing what he saw as injustices but wanted to know more both about the detail of the case-law and also about how to use it. At Essex, he was also introduced to the detailed critical analysis of judgments which is automatic to a person used to the common law tradition but which is a skill which civil lawyers normally take some time to develop. Anton took to it “like a duck to water”. As his supervisor, I would have been nervous about submitting a text of my own to his rigorous scrutiny! When he returned to Russia, he put everything he had acquired into practice and won an important human rights case before the Russian Constitutional Court. I am delighted that this book is being published in both Russian and English. My hope now is that all those who, for one reason or another, would find this book useful will in fact get to read it. That would mean that it would be read by a large number of people. Françoise Hampson University of Essex |
Anton Burkov, The Impact of the European Convention on Human Rights on Russian Law (Stuttgart: ibidem-Verlag, 2007, ISBN 3-89821-639-X) 162 pp., Paperback, € 24,90 BUY THIS BOOK
