Briefing Paper Drafted by Center "Demos" for the May 2007 Russia-EU Human Rights Consultations

When looking into the issue of execution of the ECtHR judgments on Russia, it's important to note that the Russian authorities have shown practically unfailing cooperation with regard to paying out individual compensations ruled by the Court. At the same time, Russia's implementation of the ECtHR judgments on the level of general measures remains a cause of concern and should be raised by the European Union within the framework of the Russia-EU human rights consultations.

On a positive note, the Russian authorities are undertaking certain efforts in connection with implementation of both individuals and general measures. They're particularly focused on such issues as the lack of effective implementation of ruling by domestic courts and the unacceptable length of civic judicial procedure (in other words, the two problems that caused numerous complaints to the European Court by Russian citizens).

The 2002-2006 federal programme on "Development of the Judicial System in Russia" included measures aimed at providing Russian courts with the resources, which are indispensable for speedy and effective dispensation of justice (such as additional personnel, adequate office premises, computers, and other office equipment. The new federal programme on "Development of the Judicial System in Russia" for 2007-2011 stipulates for a series of steps to accelerate the course of judicial procedure and increase the transparency of the judicial system. There has been a reinforcement of the system of control by the executive powers and the regional legislatures over implementation of decisions of court at different levels. Also, the Russian Government continues its efforts to improve the living conditions for inmates of penitentiary institutions. To stress, those measures have not resulted in the actual resolution of the aforesaid problems (in fact, there have been new rulings of the European Court on the complaints by Russian citizens about non-implementation of decisions by domestic courts, excessive length of judicial procedure, and cruel and degrading treatment in penitentiary institutions. However, the measures currently undertaken by the State indubitably represent some positive dynamics.

At the same time, a range of other systemic problems, which were also reflected in the ECtHR judgments, still must be targeted. They include, for example, the unsubstantiated use as well as the excessive length of pre-trial custody. Moreover, the European Court continues to identify new problems relevant to Russia's compliance with human rights and fundamental freedom as stipulated by the European Convention: police torture with the purpose of obtaining confession or information, violation of the freedom of movement, violation of the freedom on conscience, etc. The necessity to comply with those judgments and the need to prevent future identical complaints to the European Court demands the creation of adequate implementation mechanism at the national level.

The case-law of the ECtHR on Russia demonstrates they key reasons the violations of the rights and freedoms protected by the Convention have to do with inappropriate interpretation and application of the Russian laws rather than with imperfection of the Russian legislation as such.

To ensure compliance of the domestic law enforcement practices with the ECtHR standards it is essential to build up the system of informing public officials, judges, lawyers, and the public at large about the ECtHR decisions.

It is necessary to note that most of the Russian judges, investigators, prosecutorial officials, defense councils and legal experts cannot use the official webpage the ECtHR, because the Court publishes its judgments in its official languages of the Court only, i.e. in English and French.

The Representative of the Russian Federation at the European Court is responsible for informing the Supreme Court and other authorities about the judgments of the Court on Russia. In order to fulfill that task, his office translates the rulings into Russian. There is no information in public domain whether judges, state and local officials, who mostly deal with examination of the appeals of citizens and protection of their rights and interests are made aware of the translations of those rulings.

It is important to point out that the translations of the judgments by the Representative of the Russian Federation are not published in the official publications (except for the first few rulings, whose translations were indeed published in “Rossiiskaya gazeta” – the official newspaper for publication of legal acts). At the same time, all Russian legal acts must be published in the official sources – otherwise those legal acts can not be administered. Thus, the lack of official publications of the translated decisions of the European Court prevents them from being treated by judges as a source of law during court hearings.

Legal, expert, and human rights communities translate and publish single decisions of the European court on Russia through their own efforts. However, such translations are mostly good for raising awareness only. If complainants or their representatives refer to these unofficial translations during court hearings in the course of other interactions with the authorities, they more often than not face refusal of the official bodies to take those materials into consideration.

To increase the effectiveness of implementation of the ECtHR judgments and improve compliance with the European Convention Russian authorities should at least take relevant measures to create a system for the official publication of translations of the ECtHR rulings on Russia.

The ECtHR rulings are the acts of judicial interpretation of the norms of the European Convention. They represent quite a novel source of law for Russian judges, investigators, prosecutorail officials. Undoubtedly, numerous training programmes, including those sponsored by the Council of Europe, helped Russian judges to understand the ECtHR case-law. But not all judges had a chance to participate in such programmes and only few law enforcement officials were enabled to take part in them. In addition to developing and expanding such training programmes, it is also important to remedy this problem by having the highest judicial bodies deliver interpretations on the manner of application of the European Convention norms and the ECtHR case-law in judicial hearings on specific cases.

The Supreme Court of the Russian Federation in 2003 passed a regulation explaining to courts of general jurisdiction the necessity to apply international legal norms, including the norms of the European Convention and the ECtHR case-law. This regulation stipulated for the application of those norms in domestic judicial hearings. However, the regulation did not elaborate on the nuances. Judges of the courts of general jurisdiction still face an uncertainty and can not decide what precedent should be applied in specific cases.

At the same times, the methods used by the Supreme Court of Arbitration in this respect are much more effective and should receive a broader dissemination. The Bulletin of the Supreme Court of Arbitration regularly publishes excerpts from the ECtHR judgments on the protection of property and other issues. Those documents are accompanied by commentaries of the Supreme Court of Arbitration judges. This practice has a very strong and positive effect, which is confirmed in particular by a low number of complaints to the ECtHR on acts and decisions by arbitration courts.

Unfortunately, this positive model is practically never used outside of the arbitration court system. At the moment, there is only one similar regulation of the Plenum of the Supreme Court (it deals with the issue of compliance with the freedom of speech when hearing cases on protection of honor and dignity). Obviously, such regulations of the Supreme Court on other specific issues will help Russian courts of general jurisdiction to prevent possible violations of the European Convention.