Analysis of legislation, law enforcement practice, as well as statements of the judicial community representatives and of the high officials from executive branch, enables to conclude that the Russian Federation is inclined to execute the ECtHR judgments and takes practical relevant steps.

As for the legislative activity, one can mention, for instance, the changes in the law «On operative-search activity» made in July 2007(1). Amendments to the Article 5 of this law prohibited to police and law enforcement bodies to incite the citizens to commit offences during operative-search activities. These amendments also banned falsification of the results of the operative-search activity. In spring 2007 the Ministry of Interior, the Federal Security Service and some other executive bodies adopted an instruction, which provides detailed regulation on how to transfer the results of the operative-search activity to the investigation authorities and to courts(2). These amendments are to prevent repetition of the violations, stipulated in the ECtHR judgments “Vanyan v. Russia”(3) and Khudobin v Russia(4), namely – conviction of the individuals, which have committed crimes as a result of a provocation on the part of the operative-search bodies.

It is also worth mentioning the bill, which was introduced by the Supreme Court to the State Duma on February 6th, 2007(5). The bill proposes some changes into the Civil Procedural Code in order to regulate “nadzor” review proceedings and restrict the possibilities to revise the final court judgments, which have already entered into force. The Supreme Court, while explaining the advisability of adoption of such a bill, pointed to the necessity to fulfill the ECtHR judgments on the review proceedings in Russia: a series of the so-called «clone cases» about violation of the legal certainty principle in the framework of the review proceedings. Besides, since the beginning of 2007, the authorities have been actively discussing possible amendments to the Criminal Procedure Code, which are aimed at improving the decision-making procedure on arrest, which has been continuously criticized by the ECtHR.

As for the executive bodies, they also take some steps in order to execute the ECtHR judgments. In particular, on the 24th of July 2006 the chief of the Federal Service on Control over Education and Science issued the letter № 01-678/07-01 “On Children’ Right to Education in the Russian Federation”. In this letter he, referring to the “ECHR practice, related to violation of the children rights to education in Russian Federation cases”, stated, that the educational institutions have no right to demand Certificates of citizenship and of local registration while admitting children. This letter was issued after the ECtHR judgment “Timishev v. Russia”(6), which recognized, that refusal to admit children to school because of absence of the residence registration violates the right of access to education.

In 2007 implementation of the Federal Program, called "Development of the judicial system in Russia in 2007 – 2011” was launched(7). The justification of the program provides analysis of the Russian judicial system problems. Among them non execution of the courts judgments and excessive length of the proceedings are stipulated. Both have been mentioned in a number of ECtHR judgments on Russia. The program offers a number of measures, aimed at resolving these problems, in particular – improvement of material and technical conditions of the judicial institutions and the bailiffs service performance.

In 2007 some occasions related to execution of the so-called «Chechen cases » took place. In particular, a seminar for the representatives of the republic of Chechnya authorities on ECHR and the case-law of ECtHR, as well as a discussion on execution of the ECtHR judgments on Chechen cases with participation of some high rank officials and the Commissioner of the CoE on Human Rights.

Analysis of the informational materials of the Department of execution of the ECtHR judgments shows, that during the last year cooperation of the Russian authorities with the Committee of Ministers in the framework of the procedure of supervision over execution of the ECtHR judgments has intensified.

These actions allow us to conclude that the Russian authorities demonstrate an intent to execute the judgments of the ECtHR. At the same time, execution of the judgments in the part of general measures is not always effective enough. Analysis of execution of the different ECtHR judgments reveals the following general shortages:

1) There is no monitoring (especially at the local level) of how the acts and instructions, those adopted in order to execute the ECtHR judgments, are implemented. The absence of such monitoring and control allows the low-level authorities to preserve the practices leading to violation of the ECHR. In particular, despite the ban on provocations in the course of operative-search activity, mass-media still refer to cases of provocation to drug related crimes by police and other law enforcement bodies.

2) No measures are taken to bring the Russian judicial practice in accordance with the ECtHR judgments. In particular, the ECtHR refers to low quality (lack of motivation) of the judgments on arrest and on extension of the pre-trial detention. However the court practice on arrest remains unchanged, and this results in an increase of the number of the arrested persons and to overcrowding of the detention centers.

3) The measures adopted in order to execute the ECtHR judgments are not always comprehensive and do not lead to elimination of all the causes of violations of the ECHR. For example, the problem of refusal to execute the courts` decisions, the ones that trigger the majority of appeals to the EctHR, is determined by several factors. For instance, the budget procedures are far from being perfect, which results in situations, when institutions, which have to pay money according to a court`s decision, lack the sufficient funds. Besides, there are no legal mechanisms enabling the claimant to demand compulsory payment of this money from the budget. The judicial practice itself is rather a headache in the process of execution of the judgments: the judgment is quite often formulated in such a manner, that it is impossible to understand how it shall be executed; besides, the writs of execution issued by the courts sometimes contain mistakes, hindering the execution of the judgments. Despite this, the Federal Program "On the development of the judicial system in Russia " for the years 2007 - 2011 proposes to solve the problem of non execution of the judgments only by strengthening material and technical base of the bailiffs service and by creating an electronic database of the non executed judgments.

4) There is no clear division of competences and responsibilities for ECtHR judgments execution between different state bodies as well as no mechanisms to coordinate their activities in this field. As result, the efforts to execute the ECtHR judgments are not coordinated and various state bodies trying to impose all the responsibility for execution of these judgments on to the legislative power. For example, in the beginning of 2007 the Constitutional Court of the Russian Federation was hearing the complaints on constitutionality of the review proceedings in the civil process (the ECtHR believes, that the existing in Russia review proceedings violate the principle of the legal certainty).In the Judgment № 2-P from February, 5 2007(8), the Constitutional Court revealed the shortages of the existing review proceedings. However, the Court refused to alter the corresponding norms of the Civil Procedure Code. Instead, it recommended the federal legislator to revise the review proceedings in the light of the ECtHR rulings and the Resolution of the CE Committee of Ministers, adopted on February 8th, 2006 (ResDH (2006)1).

The mentioned shortages in the process of the ECtHR judgments execution in the part of general measures lead to continuing violations of the ECHR and increase the volume of Russian appeals to Strasbourg. Recently the President of the Constitutional Court of the Russian Federation and the judges of the Supreme Court proposed a mechanism, which would decrease the number of appeals to the ECtHR. Unfortunately they did not concretize, which particular mechanism they planed to create. Analyses of their public statements allowed us to suggest that a special procedure of tackling violations of the ECHR in the Supreme Court of the Russian Federation is to be created. The potential effectiveness of such procedure for the protection of individual rights and freedoms is not called into question; however it is doubtful that it will lead to perfection of the ECtHR judgments execution mechanism in the part of general measures.
The Russian authorities are highly recommended to work out a number of norms and procedures allowing systematic and comprehensive implementation of general measures, necessary for the ECtHR judgments execution. In particular, it is necessary to create special mechanisms and procedures ensuring coordination between different branches of power (legislative, executive and judicial) in identifying causes for violation of the ECHR provisions, elaborating a set of measures to resolve such violations and in realization of such measures. Besides, it is necessary to create a monitoring system, which would allow to evaluate the effectiveness of the ECtHR judgments execution in the part of general measures. To this end, particular attention should be paid to the recommendations of the Parliamentary Assembly of the Council of Europe and of other CoE institutions on raising effectiveness of the ECtHR judgments execution.

Another important measure, which can raise effectiveness of the ECtHR judgments execution in Russia, might be official translation and publication of the ECtHR judgments. Nowadays the ECtHR judgments are translated and published by NGOs and commercial structures. Although these publications definitely contribute to providing information on the ECtHR case-law to the legal community and officials, they – as unofficial by status - can not be used by judicial bodies to decide on concrete cases. Absence of the established procedure of the ECtHR judgments official publication hinders bringing Russian judicial practice in accordance with the requirements of the ECHR. And this in its turn excludes the judicial branch from the process of the ECtHR judgments execution.

It is also worth mentioning, that by this time no adequate conditions for adoption of individual measures, necessary for execution of the ECtHR judgments, have been created in Russia. The possibility to revise the judgments of national judicial authorities after an ECtHR judgment is previewed only in the criminal and commercial judicial proceedings. There is no similar legal possibility in civil proceedings and proceedings on administrative complaints. This creates obstacles for adoption of individual measures following concrete ECtHR judgments (f.ex. in the case of Shofman v.Russia(9) ). In February 2007 the Supreme Court submitted a bill into the State Duma, proposing to establish a norm in the Civil Procedural Code, allowing to revise final domestic judgments if it is required by a ECtHR judgment(10). The timing of the bill’s consideration by the State Duma is unclear. However, early adoption of such a law is extremely important for the effective execution of the ECtHR judgments in part of individual measures.

Footnote:

(1)Federal Law of the 12th of August 1995. N 144-FZ "On operative-search activity " (with changes on the 18th of July 1997., the 21st of July 1998., the 5th of January, the 30th of December 1999., the 20th of March 2001 ., the `10th of January, the 30th of June 2003, the 29th of June, the 22nd of August 2004, the 2nd of December 2005., the 24th of July 2007.).

(2)Order of the Ministry of Interior, of the Federal Security Service of the Russian Federation, Federal Guarding Service of the Russian Federation, of the Federal Customs Office, Foreign Intelligence Service of the Russian Federation, of the Federal Service of Penalties Execution, of the Federal Service of the Russian Federation of Control over Drug Circulation and of the Defense Ministry on 17 April 2007 N 368/185/164/481/32/184/97/147 "On the Instruction adoption on order of the results of operative-search activity transmission to the inquisitor, inquiry body, investigator, public prosecutor or to the court ".

(3)Judgment of the ECHR of 15 December 2005 " Vanyan v. Russian Federation " (application N 53203/99) (First Section).

(4)Khudobin v. Russia (Application no. 59696/00), judgment of 26 October 2006.

(5)Resolution of the Plenum of the Supreme Court of the Russian Federation № 4 of 6 February 2007. «On introduction to the State Duma of the Federal Assembly of the Russian Federation of the project of the federal law “On Changes and addendums to the Civil Procedure Code of the Russian Federation”».

(6)Judgment of the ECHR of 13 December 2005 " Timishev v. Russian Federation " (applications NN 55762/00 и 55974/00) (Second Section).

(7)Federal Program "Development of judicial system in Russia" for the years 2007 - 2011 (confirmed. by the Government`s decree of 21 September 2006 N 583).

(8)Judgmetn of the Constitutional Court of the Russian Federation on 5 February 2007 . N 2-P "In the case of verifying constitutionality of the provisions of the articles 16, 20, 112, 336, 376, 377, 380, 381, 382, 383, 387, 388 and 389 of the Civil Procedure Code of the Russian Federation in connection with the request of the Cabinet of the Republic of Tatarstan, the claims of the public corporations "Nizhnekamskneftechim" and "Khakasenergo", and also with a number of citizens` complaints "

(9) Shofman v. Russia (Application no. 74826/01), judgment of 24 November 2005.

(10) Resolution of the Plenum of the Supreme Court of the Russian Federation № 4 of 6 February 2007. «On introduction to the State Duma of the Federal Assembly of the Russian Federation of the project of the federal law “On Changes and addendums to the Civil Procedure Code of the Russian Federation”».