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Introduction 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 “an extensive debate within the Council of Europe about the suitability of the applicant for membership.”[1] Russia’s acceptance occurred despite an unfavourable ad hoc Eminent Lawyers Report, which concluded that “the 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.”[2] 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 “[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 Europe’s standards.”[3] Russia’s accession is troubling for the future of compliance with Strasbourg law because, inter alia, “given Russia’s 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.”[4] 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 “to secure to everyone within [its] jurisdiction the rights and freedoms defined in Section I of [the] Convention.” It appears to be that in Russia this obligation is generally understood as the Russian Government’s recognition of the authority of the European Court of Human Rights (the ECHR or the European Court) to adjudicate petitions alleging violations of the Convention’s provisions occurring under Russian jurisdiction. In other words, the ratification of the Convention is perceived by Russian citizens as the right “to write to Strasbourg;” the right to complain to an international body as a “panacea” for all their human rights violations.[5] However, the main idea of international human rights law is “to bring human rights home.”[6] 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.[7] 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, “it is not a breach of the Convention that national courts may not directly enforce the Convention rights.”[8] 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.[9] This book thus explores whether the protection of human rights given by the Convention’s 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 Russia’s 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 “in which its internal law ensures the effective implementation of any of the provisions of the Convention” (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 Convention’s implementation at the domestic level. I also examine the actual jurisprudence of the Russian courts on this issue, and identify possible obstacles to the Convention’s implementation. I also provide suggestions as to how to improve the situation. In other words, I identify a cause for the mismatch between the State’s obligations under the Convention and its fulfilment at the domestic level, find a “linkage between international law and domestic law.”[10] 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 “On Magistrates” 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.[11] In this work, I will not analyse the entirety of the Convention’s 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 Convention’s 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 ‘fair hearing‘ 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 Mezhmunizipal’nii Court of Moscow.[12] Similarly, in 2001-2002 the Pravoborets Foundation (Yekaterinburg, Russia) monitored district court sessions in Sverdlovsk oblast’ on the right to a fair and speedy trial.[13] This study does not seek to replicate those efforts, focusing instead on application of the European Convention on Human Rights by domestic courts. [1] Mark Janis, “Russia and the ‘Legality’ of Strasbourg Law,” European Journal of International Law 8:1 (1997): 93. [2] Rudolf Bernhardt et al., “Report on the Conformity of the Legal Order of the Russian Federation with Council of Europe Standards,” Human Rights Law Journal 15:7 (1994): 287. [3] Georgii Vinokurov, Andrei Rikhter, Vladimir Chernishov, eds., Evropeiskii Sud’ 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). [4] Janis, “Russia and the ‘Legality’ of Strasbourg Law,” 98. [5] Anna Demeneva, “Evropeiskii Sud: Panatsea ot Vsekh Bed?” in Anton Burkov, ed., Sudebnaia Zashchita Prav Grazhdan v Ee Naibolee Effectivnikh Formakh, (Ekaterinburg: Ural’skii Universitet, 2003), 36, http://www.sutyajnik.ru/rus/library/sborniki/sud_zaschita.pdf (as of 25 August 2006). [6] Kevin Boyle, “National Implementation of International Human Rights Commitments.” (Lecture given at the General Seminar on International Human Rights Law, LL.M programme, University of Essex, England, 2003-2004). [7] Ireland v. UK. Judgment of 18 January 1978. 2 E.H.R.R. no. 25. Para 239. [8] Mark Janis, Richard Kay, Anthony Bradley, European Human Rights Law: Text and Materials. Second Edition. (New York: Oxford University Press, 2000), 488. [9] Airey v. Ireland. Judgment of 9 October 1979. Series A. no. 32. 12-13. Para 24. [10] Boyle, “National Implementation of International Human Rights Commitments.” [11] 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). [12] “Basmannoe Pravosudie. Uroki Samooborony. Posobie dlia Advokatov,” http://www.ip-centre.ru/books/Basmannoe.pdf (as of 25 August 2006). [13] Kollektiv Avtorov Ural’skogo Tsentra Konstitutsionnoi i Mezhdunarodnoi Zashchity Prav Cheloveka, “Problemy Sootvetstviia Pravoprimenitel’noi Praktiki Sudov Obshchei Iurisdiktsii Evropeiiskim Standartam Prava na Spravedlivoe Sudebnoe Razbiratel’stvo Dela v Razumnii Srok,” in Primenenie Mezhdunarodnikh Dogovorov v Oblasti Prav Cheloveka v Pravovoi Sisteme Rossiiskoi Federatsii (Ekaterinburg: Ural’skaia Gosudarstvennaia Uridicheskaia Akademiia, 2003). 44-47, http://www.sutyajnik.ru/rus/library/sborniki/usla_2003.pdf (as of 8 September 2006). |
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, ˆ 24,90 BUY THIS BOOK
