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#Russia - Rocky relationship with European Court of Human Rights

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It was recently reported by the Russian state-run news agency RIA that Russia might withdraw from the European Convention on Human Rights and also end the country's cooperation with the European Court of Human Rights, writes James Wilson.

The reason given by unnamed government sources to RIA for this potential withdrawal, is that recent court decisions have gone against Russian interests. The news agency reported that the government sources believed that the court does not take into account the peculiarities of Russian law and even that the court is politicized. The reporting by RIA suggested that the Russian government is hoping this attitude from the court will be "corrected".

The backdrop to this includes the budget crisis that the Council of Europe is facing as Russia made the decision to suspend its payments to the body in 2017 over Russia's representation in Strasbourg. The Russian government has said they will not reinstate payments until they are represented again in the chamber. Russian members had left in 2014 after they lost their voting privileges in 2014 after Russia's annexation of Crimea. There is a direct relationship between this dispute and the country's participation in the European Court of Human Rights. The Council of Europe oversees the European Court of Human Rights

In recent years, Russia has passed laws that allow the country to overrule the judgements handed down from the European Court of Human Rights. In 2015 a Russian law was passed to state that the country's constitution took precedence over any ruling by the ECHR.  But despite the current tension, the European Court of Human Rights has a long history of providing a legal forum for those in Russia who believe they have not received justice in the Russian system or have had their rights infringed.  In 2017 the European Court of Human Rights delivered 305 judgments in Russian cases (concerning 1,156 applications), 293 of which found at least one violation of the European Convention on Human Rights.

A particularly high profile case at the European Court of Human Rights was that of Igor Sutyagin in 2011.  One of four Russians freed from prison in 2010 in an East-West "spy swap", he won a case against the Russian government.  The court ordered the government of Russia to pay 20,000 euros Mr Sutyagin, an arms-control expert and nuclear weapons specialist who was convicted on espionage charges in 2004 and sentenced to 15 years in prison.  Mr Sutyagin was released in July 2010 as part of a prisoner swap with the United States under which 10 alleged Russian spies were returned to Moscow. He says he did not have access to classified information, although he signed an admission of guilt as part of the prisoner swap.  The European Court of Human Rights ruled that Mr Sutyagin's right to a speedy trial had been violated because he was held in remand custody for nearly 4 1/2 years without proper justification. They also found that his right to an impartial trial had been violated because his case was transferred from one judge to another without any explanation. The court ruled that the failure to provide an explanation "objectively justified" Sutyagin's contention that the Russian court was not independent and impartial.

Another important ruling at the European Court of Human Rights was that of scientist Valentin Danilov, former director of the Thermo-Physics Centre of Krasnoyarsk Technical University.  In 2004 Mr Danilov was convicted on the basis of a false charge of ‘state treason’ (Article 275 of the Criminal Code of the Russian Federation) of passing materials containing state secrets to China.  The application alleges a violation of the right of the applicant to a fair trial, as set out in Article 6 of the European Convention of Human Rights and Fundamental Freedoms.  At Mr Danilov’s trial the jury, which by law should have been selected on the basis of a random selection, contained several people ‘with access to state secrets’. At the time, lawyer Anna Stavitskaya expressed her doubts that was simply a matter of happenstance. In this case, the ruling was especially significant, if long-awaited.  Mr Danilov waited ten years and spent most of that time imprisoned.  He was arrested in February 2001, sentenced to 14 years in prison, and released on parole on 24 November 2012, without having achieved justice in the Russian courts.

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In 2017 the European Court of Human Rights awarded over €15,000 in compensation including costs and expenses to former Yukos security chief Alexey Pichugin sentenced in Russia to life in prison. Mr Pichugin complained to the court about the breach of presumption of innocence and assessment of evidence by the Russian courts.  Mr Pichugin said that a new trial in Russia would be “the most appropriate form of redress” in his case. He also claimed €100 “per each day of his detention following his conviction on August 6, 2007 until his release pending a new trial in respect of pecuniary damage and €13,000 in respect of non-pecuniary damage.”  The 2017 ruling  as the second application Mr Pichugin filed with the European Court of Human Rights. In October 2012, the same held that Russia had violated his rights to a fair trial (Article 6 of the European Convention on Human Rights) and awarded him €9,500. Mr Pichugin has had two criminal cases opened against him, relating to charges of organizing murders and attempted assassinations, for which he received a 20 year and a life sentence respectively.

However, there have also been some unintended and unpredictable consequences from the involvement of the European Court of Human Rights.  The court had, on 14 November 2002, questioned the legality of Murad Garabayev’s detention and extradition from Russia to Turkmenistan, as well as asked whether the competent national authority had considered Mr Garabayev’s allegation that he could be subjected to treatment contrary to Article 3 of the convention back in Turkmenistan.  This intervention by the European Court of Human Rights put Russia in a difficult situation.  In order to correct the violations committed against Mr Garabayev and to return him to Russia, the Russian authorities on 24 January 2003 opened their own case against Mr Garabayev and others, including banker and entrepreneur Dmitry Leus, so that a request could be sent to Turkmenistan to extradite Mr Garabayev back to Russia.  Mr Leus was then charged, despite several prior decisions by the Russian authorities that there was no case against him or any wrongdoing by him or his bank.  This episode is hardly a reason for the European Court of Human Rights not to take on Russian cases, but it does demonstrate that at times Russia has made a creative and expedient response to pressure from the European Court of Human Rights, worlds away from what the court would have intended.

In 2004 the European Court of Human Rights ruled in favour of exiled media owner Vladimir Gusinsky, who filed a suit claiming that Russian authorities had used imprisonment to force him to sign over his  Media-MOST empire.  The seven judges at the European Court of Human Rights ruled unanimously that the Russian government should pay Mr Gusinsky's 88,000 Euro legal bill for violating his right to liberty and security enshrined in the European Convention on Human Rights.  The judges stated in their decision that: "It was not the purpose of such public law matters as criminal proceedings and detention on remand to be used as part of commercial bargaining strategies,".  This referred to a 2000 agreement with the government in which Mr Gusinsky sold his media business to Gazprom in exchange for fraud charges being dropped.  Mr Gusinsky was held in pretrial detention in June 2000 after authorities claimed he fraudulently obtained a $262 million loan from Gazprom.  In its judgment, the court wrote that the press minister at the time offered to drop charges if Mr Gusinsky sold Media-MOST to state-controlled Gazprom. Mr Gusinsky agreed to sell the company and fled to Spain after his release from prison. He then claimed the agreement had been reached under duress. Mr Gusinsky filed the lawsuit with the European Court of Human Rights in January 2001.

The European Court of Human Rights ruled in 2013 that aspects of the 2004-2005 trial of Mikhail Khodorkovsky, a well-known figure and once Russia’s richest man, were unfair. Mr Khodorkovsky was jailed for eight years on fraud and tax evasion charges in a case widely seen as having political overtones. Mr Khodorkovsky was found guilty in Russia in 2010 on additional charges of embezzlement and money laundering, extending his prison term until 2017. The European Court of Human Rights found that in his first trial, Russian authorities had wrongly harassed Mr Khodorkovsky’s lawyers and excluded some expert witnesses and audit reports. It said sending the former Yukos chief and his co-defendant, Platon Lebedev, to prison camps thousands of kilometres from Moscow in Russia’s far east and far north had violated their right to respect for private and family life. The court also criticised the “arbitrary” way Mr Khodorkovsky was ordered to reimburse Rbs17bn (€510m) of tax arrears owed by Yukos to the state.  Karinna Moskalenko, Mr Khodorkovsky’s lawyer, said the court’s finding was of “huge significance”. “The unfairness in the proceedings was so great that the required redress under Russian law is to quash the convictions and release the two men at long last, and without further delay,” she added.

Broadly, the European Court of Human Rights has unquestionably been an invaluable recourse for Russians who have met with injustice or had their rights infringed in their home country.  We should all be concerned that as tensions continue between Russia and Europe, Russian access to the court could be one of the first casualties.  There is a long history of cases, both high profile names and lesser known figures from Russia, who could never have found any form of justice without access to the European Court of Human Rights.

The author, James Wilson, is the founding Director of the International Foundation for Better Governance.

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