In December 2015, Russian President Vladimir Putin signed a new law, which allows the Russian government to ‘legally’ opt out of decisions made by the international courts. The European Court of Human Rights (ECHR) is most definitely the international court Putin is referring to, over the past several years thousands of Russian cases have appeared in the court and often don’t go in Russia’s favour.
What is surprising about this new law is that it directly goes against the Russian Constitution, which states, “if an international treaty or agreement of the Russian Freedom fixes other rule than those envisaged by law, the rules of the internal agreement shall be applied” (Russian Constitution, Article 14, Point 4).
The Bill which was introduced to Russian Parliament in November 2015 is to “safeguard Russian sovereignty” according to the bill’s co-sponsor, Vasily Likhachev.
‘ECHR rulings aren’t being enforced’
Russia joined the Council of Europe in 1996 and with this membership came the European Convention of Human Rights which they ratified in 1998, placing them under the jurisdiction of the ECHR.
Since 2014, Russia has adopted laws and practices that progressively isolated the country from the rest of the world. While its human rights violations may not be as severe as North Korea or Yugoslavia, Russia has deep anti-LGBTI sentiments, a history of abuse in custody and a corrupt judicial system.
While the motivation for creating this new law can be seen as the Russian government wanting to reclaim sovereignty, the potential risk of the law reform is that the human rights situation in Russia will decline further more.
In an interview with media outlet RFE/EL Russian Service, pro-Kremlin federal lawmaker Alexsandra Taravsky says that Russia is just following what other European countries are doing.
“When we randomly looked at practices in Western European countries, it turned out that some ECHR rulings aren’t being enforced in Germany, in Italy, and very significantly in Britain,” said Taravsky.
However while it does take up to ten years for countries to apply the courts rulings, Russia is the only country to pass laws saying that they won’t follow ECHR rulings.
In a press statement the Secretary General of the Council of Europe, Thorbjorn Jagland said the Council would only be able to take action regarding Russia’s compliance to the convention when and if a specific case arises.
Jagland continued by saying that countries protested against the ECHR (Germany and Britain most significantly) before but they have always been able to find a solution.
“So far, countries have always been able to find a solution in line with the convention. This should also be possible in Russia,” Jagland said.
Though when speaking via Skype to Dimitry Kochenov, a Russian born international law expert disagrees with this idea. Kochenov believes that Russia leaving the Council of Europe is only a matter of time.
Dimitry Kochenov, a Russian-born international law expert, disagrees with this idea. Speaking via Skype, he said he believes that Russia leaving the Council of Europe is only a matter of time.
“They are not afraid, if you look at the track record of the country especially over the last two years, then you’re clearly not afraid and are in favour of firmly leaving the council. But they didn’t have some artificial reason to leave, now they do,” Kochenov said.
According to Kochenov the creation of this law is the final act in Russia’s ongoing plight to leave the ECHR. In 2014 Putin said the ECHR was simply fulfilling a political function and that if the practice were to get stronger, Russia would leave.
2014 alone saw one hundred and nineteen cases present with at least one human rights violation against Russia. In 2015, the Yukos case was brought to the forefront with Russia being ordered to pay two billion euros to the shareholders of the former Russian oil giant. It is these type of cases that are making Russia uneasy about the ECHR.
At present Russia hasn’t done anything ‘illicit’ by the creation of this law. Rather, the issue will arise if they purposefully use this law to avoid complying with the ECHR.
In a phone interview with the Spokesperson for the Secretary General of the Council of Europe, Daniel Holtgen says there will be a conflict if Russia uses the law for non-compliance.
“The law (in Russia) speaks of a hypothetical and potential conflict between a judgement of the ECHR and the Russian Constitution. In the case of such a decision of the Russian courts, there would be a conflict,” Holtgen said.
For Russia, the issue stems from their perceived lack of sovereignty over the judicial system and their growing need to isolate itself from the rest of Europe.
But Russia isn’t the only Council of Europe member to take issue with the European Court of Human Rights. The British Conservative Government who is currently in power in the United Kingdom has made it widely know that it is unhappy with the ECHR and wishes to leave.
In 2014, British Prime Minister David Cameron made a speech at the Conservative party annual conference saying rulings stopping them from deporting suspected terrorists or allowing prisoners to vote should be a British decision.
“No, I’m sorry, I just don’t agree…we do not require instruction from judges in Strasbourg on this issue,” Cameron said.
Last year in June, Cameron again brought up the issue of the ECHR by declaring if Strasbourg didn’t give in to British reforms on the issue that they would leave. But any formal decision on the matter will wait until after the referendum on Britain remaining in the European Union.
A British source within the European Parliament says the main issue with the United Kingdom is that it doesn’t have a constitution, which makes implementing the rulings of the ECHR much harder and the British government doesn’t want to deal with that.
“If a sentence is handed down and the United Kingdom needs to apply something, it would have to be over the rules of the parliament and is harder to achieve, and that is something that they aren’t keen to do,”
Prime Minister Cameron has made it clear if a decision to move away from the convention was made, a British Bill of Rights would be created to enshrine the rights of its citizens
The source also mentions that like Russia, the British government wants to reclaim sovereignty over its decision making which is why the British referendum is also taking place.
“For the British, it is about making the ECHR non-binding and reclaiming sovereignty.”
But unlike Russia who has made not following the ECHR decision legally binding, Britain still applies the decision, albeit ten years later.
All about power
For countries like the United Kingdom and Russia, who consider themselves great world powers, regaining sovereignty over their human rights decisions is key. Though for Russia, a country whose human rights record is shady at best, this decision could have huge consequences due to the fact that citizens won’t have an independent court to turn to.
In an article written by media outlet ‘Russia Direct’, Michael Newcity states that Russia has a lot to lose in breaking away from the ECHR. There’s the possibility of more European based sanctions, the reputation that comes with breaking away from ‘rule of law’ and an independent court, and finally the risk of international investors moving away from Russia if corruption is deemed too high.
“With the enactment of this new law, Russia can expect criticism of Russian authoritarianism to grow even louder,” Newcity stated.