Gazeta: "Russia to Ratify Human Rights Protocol, Fetters Removed from Strasbourg Court"
The State Duma drops its conditions on Protocol No. 14.
The State Duma Committee for the Civil, Criminal, Arbitral, and Procedural Law voted for ratifying Protocol No. 14 to the European Convention for the Protection of Human Rights and Fundamental Freedoms yesterday. The Duma Speaker, Boris Gryzlov, also confirmed yesterday that the Duma was ready to pass a document related to reforming the European Court of Human Rights on January 15. However, the committee’s chairman, Pavel Krasheninnikov, explained to Gazeta that the Duma would ratify the document on special terms for Russia. It will formally pass the document that then-President Vladimir Putin signed in 2006. Meanwhile, the Duma has repeatedly refused to adopt it. “The deputies have discussed much with the Council of Europe and will finally pass the protocol’s variant that already exists without any supplements,” the chairman said. “But Russian cases will be tried on the terms Russia has established.”
The deputies say that they have arrived at oral agreements with their European counterparts and that the latter will take Russia’s comments into consideration. The Protocol will not be altered, but the Council’s Committee of Ministers, which determines the court’s procedures, officially decided to meet on December 9 and 14, stipulating that “interpretations and conditions were possible.” Additionally, on November 4, in an answer to an inquiry of the Committee of Ministers’ chairman, the court’s secretariat issued explanatory notes on all the protocol items that Russia had doubts about. Though evasively, it did take proper account of Moscow’s comments.
Duma’s Conditions
It is worth mentioning that work on the document—which has been ratified by all of Council of Europe’s 47 member states except Russia—has become more intense over the past six months. The State Duma issued a special statement in September, in which it outlines all its criticism towards the protocol, especially towards the four articles with which it most takes issue.
According to the deputies, Article 8 was the most unacceptable one since it stipulated that there can be no representative of a respondent state in a hearing of three judges. A Chamber of Seven Judges had earlier tried all the court’s cases. The reform stipulates that typical cases may be tried by three judges.
The deputies said that the new procedure “could jeopardize the justice and validity of the court’s decisions, which could be taken without due consideration of the peculiarities of a state’s legal system.”
The Duma deputies were also dissatisfied with a provision of Article 14 that provided for the Strasbourg Court conducting a preliminary investigation prior to making a decision on the claim’s acceptability. They claimed that it would result in interference with national justice systems or even substituting its ruling. Faults were found in Article 10 and 16, which aroused concern that the Committee of Ministers could tell the state how it should fulfill the court’s resolutions.
Russia’s Special Status
In fact, Russian deputies succeeded in their negotiations with the Council of Europe and the Kremlin gave a clear signal on December 17: the reform of the court that was set up 50 years ago in 1959 and was meant to protect human rights could begin by the end of the anniversary year. During his meeting with Justice Minister Alexander Konovalov, Foreign Minister Sergei Lavrov and head of the Presidential Executive Office Sergei Naryshkin, President Dmitry Medvedev said that Protocol No. 14 was to be ratified.
“The document is meant to improve the court’s efficiency due to an increasing number of applications,” the President said. The Duma deputies immediately reacted and rashly promised to ratify the protocol by the end of 2009.
As a result, yesterday the Duma recommended to ratify the protocol as signed by Vladimir Putin.
“We have agreed with the Committee of Ministers that a Russian judge will necessarily participate in hearings on Russia-related cases and that the state will decide how to monitor or implement the court’s decisions,” Pavel Krasheninnikov said.
What the State Duma Found Satisfactory
During the Duma’s committee session, deputies repeatedly referred to oral agreements with the Committee of Ministers. The main written document that gave the deputies confidence was the above-mentioned explanatory note issued by the court’s secretariat and interpreting certain protocol items on Russian terms.
The secretariat removed the main stumbling block—i.e., that there can not be a judge from a respondent state in a three judge tribunal—by giving an evasive explanation that the protocol did not provide for a respondent state’s necessary participation but still it described a procedure according to which a judge from this state could take part in the hearings.
According to the reform, a three judge tribunal may only try cases to which the case law is applicable, meaning that there has been a settled judicial practice (or so-called clone cases).
The explanatory note reads that a national judge can replace any of the three judges at any stage “considering all the related factors.” Such a decision can be taken on an application by a respondent state.
Besides, those cases, which are now to be tried by a three judge tribunal, and more serious ones, eligible for trying by a Chamber of Seven Judges, with a participating judge from a respondent state, should be sent to a respondent state. A national judge’s approval shall be obtained before sending a copy of the writ to a respondent state for preparing for the hearings. If such an approval is not obtained, the case will be tried by a Chamber of Seven Judges.
How Deputies Disagreed with Vladimir Putin
The necessity to reform the European Court of Human Rights emerged when Central European countries started joining the Council of Europe and getting access to the European justice system in the 1990s. The court began hearing Russian cases twelve years ago, and the number of suits was growing exponentially. The court had over 32,000 cases against Russia by the end of 2009.
The Council’s Committee of Ministers adopted the protocol in May, 2004. The document was to be adopted by all the countries of the Council of Europe and come into force by 2007. Russian politicians said that the country was ready to ratify the protocol in the run-up to its turn to preside over the Council in May, 2006. President Vladimir Putin signed the document on April 13, 2006.
But the State Duma denied the draft law on ratifying Protocol No.14 on one of its latest sessions in 2006.
The “protocol procrastination” is expected to finally end this week.
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How the Court Was Inundated With Claims
Russian citizens could file a suit at the European Court of Human Rights starting in 1998.
The court took its first decision on a Russian case, the Burdov vs. Russia case, four years later, in 2002.
The court decided on 862 Russian cases in 2009, with an overall 5,455 cases tried. The European Court of Human Rights currently has over 118,000 cases pending from 47 member countries of the Council of Europe.
Russia accounts for about 33,600 cases or 28% of overall case volume, leading the list of most sued countries. Turkey (almost 13,000 cases) and Ukraine (a little over 10,000 cases) are in the second and third places, respectively.
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ABSTRACTS FROM THE COURT’S EXPLANATORY NOTE ISSUED IN ANSWER TO AN INQUIRY OF THE COMMITTEE OF MINISTERS’ CHAIRMAN ON NOVEMBER 6, 2009
“According to the Convention, a national judge shall participate in all hearings on cases tried by Chamber and Grand Chamber, but not by committees.
The new power of a three judge committee applies only to simple cases and will not be applied to claims that do not fall within this category due to new or complicated issues arising during the hearings.
The respondent state can challenge the new procedure, stating that the tried case differs by their data from those cases related settled judicial practice. Knowledge of a ‘national judge’ about the state’s legislation and legal practices may be appropriate in these issues and thus necessary. If a ‘national judge’ is not a member of a committee, his/her opinion shall be in all circumstances taken into account at this stage.”
Lilia Biryukova
