On 28 February 1996, the Russian Federation was allowed to
accede to the Statute of the Council of Europe without meeting all the
requirements for member States. The accession followed Уan extensive debate
within the Council of Europe about the suitability of the applicant for
membership.Ф RussiaТs acceptance
occurred despite an unfavourable ad hoc Eminent Lawyers Report, which concluded
that Уthe legal order of the Russian Federation does not, at the present moment,
meet the Council of Europe standards as enshrined in the statute of the Council
and developed by the organs of the European Convention on Human Rights.Ф
The same evaluation of the Russian legal system was given by the Director of the
Legal Department of the Russian Ministry for Foreign Affairs, A. Khodakov, in
the Explanatory Note on the Issue of Signing the European Convention for the
Protection of Human Rights and Fundamental Freedoms by the Russian Federation
dated 30 January 1996. Khodakov stated that У[a]t the present moment Russian
legislation, with the exception of the Constitution of the Russian Federation,
and law enforcement practice do not comply fully with the Council of EuropeТs
RussiaТs accession is troubling for the future of compliance
with Strasbourg law because, inter alia, Уgiven RussiaТs lack of experience in
protecting human rights at the level of municipal law, it is likely that a great
many violations of European human rights law will be committed there, and that
they will not be remedied domestically.Ф
Under Article 1 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms (the Convention), the Russian
Federation has undertaken an obligation Уto secure to everyone within [its]
jurisdiction the rights and freedoms defined in Section I of [the] Convention.Ф
It appears to be that in Russia this obligation is generally understood as the
Russian GovernmentТs recognition of the authority of the European Court of Human
Rights (the ECHR or the European Court) to adjudicate petitions alleging
violations of the ConventionТs provisions occurring under Russian jurisdiction.
In other words, the ratification of the Convention is perceived by Russian
citizens as the right Уto write to Strasbourg;Ф the right to complain to an
international body as a УpanaceaФ for all their human rights violations.
However, the main idea of international human rights law is Уto bring human
rights home.Ф As far as the
Convention is concerned the core of this idea is depicted in its Article 1.
Article 1 does not merely oblige High Contracting Parties to
respect human rights and fundamental freedoms, but also requires them to protect
and to remedy any breach at subordinate levels.
However, it does not prescribe the manner in which States shall secure the
rights in question. The Convention does not require states to give direct effect
to the Convention within national law. Therefore, Уit is not a breach of the
Convention that national courts may not directly enforce the Convention rights.Ф
As will be seen below, this is not the case in regard to the Russian Federation,
which has chosen in its Constitution to require that the Convention be
integrated into national law. Therefore, national courts are under an obligation
to invoke the Convention on an equal footing with any national statute. In spite
of the fact that the Convention is silent in regard to the way the rights shall
be secured at the domestic level, by making the Convention part of its national
body of law, the Russian Federation seemed to adhere to the principle which
prescribes that those rights shall be secured effectively, not theoretically.
This book thus explores whether the protection of human
rights given by the ConventionТs direct implementation in Russia is effective
and not merely symbolic. I also suggest a possible method of ensuring within
Russian national law the effective implementation of any of the provisions of
the Convention, bearing in mind the peculiarities of RussiaТs national legal
system. This proposal could be employed by the Council of Europe as a criterion
for the assessment of explanations submitted by the Russian Federation on the
manner Уin which its internal law ensures the effective implementation of any of
the provisions of the ConventionФ (Article 52 of the Convention.).
To that end, I assess the current situation regarding the
impact of the Convention on Russian law by identifying an existing mechanism ―
particular to the Russian legal system ― for the ConventionТs implementation at
the domestic level. I also examine the actual jurisprudence of the Russian
courts on this issue, and identify possible obstacles to the ConventionТs
implementation. I also provide suggestions as to how to improve the situation.
In other words, I identify a cause for the mismatch between the StateТs
obligations under the Convention and its fulfilment at the domestic level, find
a Уlinkage between international law and domestic law.Ф
The jurisprudence of most types of Russian courts will be
assessed. At present, a new judicial body is being introduced: the magistrates.
The jurisprudence of these courts will not be assessed here; although the
Federal Law УOn MagistratesФ was enacted in 1998, the positions of magistrate
have not been staffed completely in all Russian regions, and therefore their
duties are performed by district courts.
In this work, I will not analyse the entirety of the
ConventionТs impact on the Russian legal system. The question of whether or not
the Convention provides an effective remedy to Russian citizens will be
considered, particularly whether those whose rights were allegedly violated can
use the ConventionТs provisions in domestic courts of various levels and
jurisdictions, and whether the Convention has the same status as the Russian
Constitution (the Constitution), federal constitutional law or federal law de
jure and de facto. Therefore, this work will not deal with legislative changes
prompted or possibly prompted by the ratification of the Convention and ECHR
case-law, nor does it deal with anything other than judicial remedies. Nor will
this work consider the way judges, procurators or lawyers behave themselves in
court, their appearance before the public, the speediness of proceedings,
whether judges show any prejudice against a party which under certain
circumstances might be contrary to the right to a Сfair hearingС under Article 6
of the Convention, and so on. The International Protection Centre (the Russian
branch of the International Commission of Jurists) recently conducted such a
study on the Basmannii MezhmunizipalТnii Court of Moscow.
Similarly, in 2001-2002 the Pravoborets Foundation (Yekaterinburg, Russia)
monitored district court sessions in Sverdlovsk oblastТ on the right to a fair
and speedy trial. This study
does not seek to replicate those efforts, focusing instead on application of the
European Convention on Human Rights by domestic courts.
Mark Janis, УRussia and the СLegalityТ of Strasbourg Law,Ф European
Journal of International Law 8:1 (1997): 93.
Rudolf Bernhardt et al., УReport on the Conformity of the Legal Order of
the Russian Federation with Council of Europe Standards,Ф Human Rights
Law Journal 15:7 (1994): 287.
Georgii Vinokurov, Andrei Rikhter, Vladimir Chernishov, eds.,
Evropeiskii SudТ po Pravam Cheloveka i Zashchita Svobody Slova v Rossii:
Pretsedenty, Analiz, Rekomendatsii (Moskva: Institut Problem
Infomatsionnogo Prava, 2004), 583-584,
http://www.medialaw.ru/article10/7/2.htm (as of 25 August 2006).
Janis, УRussia and the СLegalityТ of Strasbourg Law,Ф 98.
Kevin Boyle, УNational Implementation of International Human Rights
Commitments.Ф (Lecture given at the General Seminar on International
Human Rights Law, LL.M programme, University of Essex, England,
Ireland v. UK. Judgment of 18 January 1978. 2 E.H.R.R. no. 25. Para 239.
Mark Janis, Richard Kay, Anthony Bradley, European Human Rights Law:
Text and Materials. Second Edition. (New York: Oxford University Press,
Airey v. Ireland. Judgment of 9 October 1979. Series A. no. 32. 12-13.
Boyle, УNational Implementation of International Human Rights
The Alternative NGO Report on the Observance of the International
Covenant on Civil and Political Rights (ICCPR) by the Russian
Federation, (from 1997 to 2002),
http://www.memo.ru/hr/news/doklnpo/eng (as of 25 August 2006).
Kollektiv Avtorov UralТskogo Tsentra Konstitutsionnoi i Mezhdunarodnoi
Zashchity Prav Cheloveka, УProblemy Sootvetstviia PravoprimenitelТnoi
Praktiki Sudov Obshchei Iurisdiktsii Evropeiiskim Standartam Prava na
Spravedlivoe Sudebnoe RazbiratelТstvo Dela v Razumnii Srok,Ф in
Primenenie Mezhdunarodnikh Dogovorov v Oblasti Prav Cheloveka v Pravovoi
Sisteme Rossiiskoi Federatsii (Ekaterinburg: UralТskaia Gosudarstvennaia
Uridicheskaia Akademiia, 2003). 44-47,
http://www.sutyajnik.ru/rus/library/sborniki/usla_2003.pdf (as of 8