ZOiS Spotlight 16/2018 by Caroline von Gall
Twenty years ago, on 5 May 1998, the Russian Federation joined the Convention for the Protection of Human Rights and Fundamental Freedoms. Two years before that, it had become a member of the Council of Europe. Today, this membership is faced with intractable political challenges. Under public international law, however, the situation is entirely clear: as a signatory, Russia is obligated to guarantee the human rights of the Convention, as well as to abide by the judgments of the European Court of Human Rights in any case to which it is a party.
Membership represented a paradigm shift in Russian legal history. For the Soviet Union, the principle of state sovereignty had been of central importance. Human rights were seen as an internal affair of individual states – as belonging to the domaine réservé – and as outside of the sphere of international law. In addition, after decades of ideological disputes between the Soviet Union and the West, Russia had become, in ratifying the convention, a member of a Western community of shared values, according to which peace and cooperation in Europe are only possible if all members are committed to the principles of democracy, freedom, and the rule of law.
When Russia joined, it was hoped that its membership of the Council of Europe might help advance necessary reforms. But the Convention does not only demand that Russia change its laws; it requires a totally new conception of international law. Even today, many Russian experts in international law tend to be skeptical of the idea that citizens should have the right to make complaints about internal affairs to international courts. In addition, membership gave new urgency to fundamental Russian debates about the country’s place in Europe and the value of liberalism.
Initially, the effects were ambivalent. Although Russia did not rectify the legal problems that were at stake in numerous judgments of the European Court of Human Rights, it did pay the applicants damages, and political leaders regularly affirmed the importance of legal and judical reforms. And again and again, individual judgments were indeed implemented.
Conflicts Regarding Implementation
Today, the situation is different. Russian political elites respond to condemnation by the European Court of Human Rights with an anti-Western discourse which also encompasses a critique of human rights. It is based on the idea of exceptional Russian values. The Western liberalism which forms the basis of human rights leads, it is claimed, to a crisis of morality and endangers Russian, Christian, occidental values, the traditional family, and patriotism. This Western liberalism is said to place the individual above the state and to destabilise Russia, and it is suggested that human rights are – as in the days of the Cold War – misused by the West as a political instrument.
This discourse has established itself within Russian legal institutions and has also been lent support by Chairman Zorkin of the Constitutional Court. In the year 2015, this conflict became a part of the official case law of the Russian Constitutional Court when a mechanism was created which allows the Constitutional Court to refuse to implement decisions of the European Court of Human Rights in Russia on the basis of the particularities of the Russian constitution.
This conflict between the primacy of the constitution and a full commitment to international law arises in many European legal systems. The problem of Russian membership is not, however, that there are differences between the constitution and the European Convention on Human Rights in certain individual aspects, such as the right of prisoners to vote; it is, rather, that the goals of the Council of Europe are not compatible with the Russian political system, and that there are an increasing number of judgments which cannot be implemented at all without jeopardising the stability of the Russian political system.
Unlike other regional human rights pacts, the European Convention on Human Rights is closely linked to the model of a liberal constitutional state. Freedom of opinion, freedom of assembly and freedom of association are conceived of as prerequisites for democracy, and the media as a guarantor of all three. The state is regarded as having a duty to create institutional structures which foster a pluralist, democratic discourse. Although member states are fundamentally allowed to restrict these freedoms when it is necessary for the protection of democratic society, this restriction can only occur on the basis of a clearly formulated law. Hardly any Russian laws meet these requirements. Repression of the political opposition and the “power vertical” are characteristic of the Russian system. There is not an independent judiciary. Law and the judiciary are instruments of politics. Extremely contradictory, vague legislation creates the conditions for intentional arbitrariness and uncertainty.
As a result, there is hardly an area of political and social life in Russia today which is free of judgement by the European Court of Human Rights. A comprehensive survey of its judgments reveals, among other things, structural deficits in the judiciary, media, police and prisons. Over 3000 complaints about the annexation of Crimea and the war in East Ukraine are pending.
Russia and the Council of Europe at an Impasse
The annexation of Crimea was a turning point in relations between Russia and the Council of Europe. In response, the Russian delegation in the Parliamentary Assembly of the Council of Europe lost its right to vote on 10 April 2014. Since then, Russian parliamentarians have been excluded from decisions of fundamental importance, including the election of the judges of the European Court of Human Rights. This further undermines the legitimacy of the European Court of Human Rights in Russia. As a result, Russia stopped paying its membership dues to the Council of Europe in the summer of 2017. This caused serious financial difficulties for the Council of Europe. Since the lifting of sanctions is linked to the return of Crimea – which is unlikely to happen – cooperation between Russia and the Council of Europe appears to have reached an impasse.
The Council of Europe has a clear interest in keeping Russia as a member. In spite of everything, membership has certainly had positive effects within the country: besides offering a means of redress for individuals, the European Convention on Human Rights serves as an important basis of argumentation for Russian defenders of human rights; and through complaints, the Convention plays a role not only in the judiciary and the media, but also in research and teaching.
From the Russian perspective, there are two important aspects of membership. Numerous members of the Russian political and judicial elite continue to see Russia as a part of Europe. To leave would rattle this self-conception and call into question their relationship to their own constitution. Instead, Russia continues to pay high compensations to plaintiffs, and after judgements by the European Court of Human Rights, it conducts retrials which in many cases repudiate the case law of the European Court of Human Rights. By criticising the European Court of Human Rights, the courts can in turn prove their loyalty to the Kremlin, thereby bolstering internal unity.
There is no justified reason to hope that the situation will change. Due to the political situation, it is unlikely that the European Convention on Human Rights will be implemented in Russia, since independent courts and pluralism would destabilise governmental power. The Council of Europe does not have a solution for this problem. The implementation of its goals depends on the voluntary compliance of its members. It would hardly increase Russia’s willingness to implement the Convention if the members of its delegation were once again allowed to vote. Nor, however, will the Council of Europe achieve its goals if the matter is escalated further. And it is even less likely to do so if Russia ceases to be a member.
Caroline von Gall is a Junior Professor at the Institute for Eastern European and Comparative Law at the University of Cologne.