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Echr, Russia, and Chechnya: Two Is Not Company and Three Is Definitely a Crowd

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Echr, Russia, and Chechnya: Two Is Not Company and Three Is Definitely a Crowd \\jciprod01\productn\N\NYI\43-2dr\NYI204.txt unknown Seq: 1 12-APR-11 17:46 ECHR, RUSSIA, AND CHECHNYA: TWO IS NOT COMPANY AND THREE IS DEFINITELY A CROWD JULIA LAPITSKAYA* I. INTRODUCTION .................................. 479 R II. BRIEF OVERVIEW OF THE ECHR, ITS JURISDICTION, AND PROCESSES .................................. 481 R III. STATISTICAL OVERVIEW OF CASES FILED WITH THE ECHR AGAINST RUSSIA: PUTTING THINGS IN PERSPECTIVE .................................... 485 R IV. RUSSIA’S COMPLIANCE WITH ECHR JUDGMENTS— ”JUST SATISFACTION” ............................ 490 R V. RUSSIA’S “COMPLIANCE” WITH ECHR JUDGMENTS— BEYOND “JUST SATISFACTION” .................... 493 R A. “Individual” and “General” Measures .......... 493 R B. Protocol No. 14 .............................. 497 R C. Intimidation of and Interference with Other Rights of ECHR Applicants, their Attorneys, and other Human Rights Activists. ...................... 503 R D. Case Study—“Chechen Cases” ................. 519 R VI. RUSSIA’S NONCOMPLIANCE: WHY DOES IT MATTER AND WHAT CAN BE DONE? ...................... 534 R A. Suspension of Voting Rights and Expulsion. .... 536 R B. Interstate Application C. Committee of Ministers and Infringement Proceedings .................................. 540 R VII. CONCLUSION .................................... 546 R I. INTRODUCTION This Note critiques the Russian Federation’s defiance of the judgments issued by the European Court of Human Rights1 (“ECHR” or the “Court”) and reviews and recom- * I am deeply grateful to Professor Mary Holland for her invaluable guidance, comments, feedback, and patience. Special thanks are also due to Aaron Bloom, Lea Newfarmer, and Graham Dumas for their help with devel- oping and editing this Note. 1. The Court was established pursuant to Protocol 11 to the European Convention for Human Rights. Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Restructuring the 479 \\jciprod01\productn\N\NYI\43-2dr\NYI204.txt unknown Seq: 2 12-APR-11 17:46 480 INTERNATIONAL LAW AND POLITICS [Vol. 43:479 mends steps for the ECHR to take to increase Russia’s compli- ance with the Court’s judgments. Seeking to exhibit compli- ance with an ever-increasing number of judgments against it, Russia pays monetary judgments awarded by the Court in a timely fashion. At the same time, Russia violates the spirit and letter of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the “European Convention” or “Convention”) by ignoring the substance of the ECHR judgments, failing to implement measures that are necessary to punish wrongdoers and prevent human rights vio- lations in the future, and engaging in techniques, including intimidation of human rights applicants, attorneys, and activ- ists, that are designed to dissuade Russian nationals, including Chechen residents, from accessing the ECHR. This dual treatment of the ECHR is especially apparent in Russia’s response to and handling of cases arising from human rights violations in Chechnya: while ECHR-awarded compensa- tion is promptly delivered to the aggrieved applicants, no addi- tional measures are taken to bring perpetrators to justice or to prevent ongoing human rights violations. Instead, applicants and their attorneys are at risk of reprisal and measures are im- plemented to discourage applicants from utilizing the ECHR system and processes. Although there are a number of mecha- nisms that the Council of Europe and the ECHR can employ to force Russia to substantively address human rights viola- tions, including the suspension of its voting rights, expulsion, and the possibility of bringing infringement proceedings, fil- ing of an interstate application against Russia is the tool that is most likely to achieve the desired results in light of the prece- dents and the current political climate. Part II of this Note introduces the ECHR, its jurisdiction, and its processes. Part III provides a statistical overview of the types of complaints that have been filed against Russia, includ- ing claims of inhuman treatment and torture, denial of the right to life, interference with the right to a fair trial, the disre- gard of property rights, and lack of effective domestic remedy. Part IV discusses the Russian government’s recognition, in cer- tain respects, of the impact of ECHR judgments on the per- ceptions of the international community. Such recognition Control Machinery Established Thereby, pmbl., May 11, 1994, C.E.T.S. No. 115. \\jciprod01\productn\N\NYI\43-2dr\NYI204.txt unknown Seq: 3 12-APR-11 17:46 2011] ECHR, RUSSIA, AND CHECHNYA 481 has prompted the Russian authorities to generally comply with the Court’s awards of (modest but symbolic) damage pay- ments. Part V focuses on how, despite this apparent respect for the ECHR’s goals and compliance with its judgments, Russia has failed to address the more important implications of ECHR judgments and even worked to undermine the pur- poses of the Court. Specifically, instead of seeking to fully re- dress human rights violations and prevent similar violations from recurring, the Russian government has endeavored to curtail access to the Court by (i) unreasonably postponing rati- fication of Protocol No. 14, (ii) intimidating ECHR applicants, their attorneys, and other human rights activists, and failing to investigate instances of intimidation, disappearance, and even murder, and (iii) denying ECHR applicants and the Court complete access to domestic investigative files. Russia’s dual treatment of the ECHR will be explored in light of several ECHR cases and judgments documenting human rights viola- tions in Chechnya. Finally, Part VI evaluates the importance of the ECHR for Russian nationals, including Chechen residents, and proposes some remedies that might be pursued against Russia for its failure to harmonize its practices with the governing rules of the Convention. While the ECHR might make use of any one of the available tools, including suspension of voting rights, expulsion, and infringement proceedings, filing of the inter- state complaint against Russia is the most optimal solution in light of the precedents and pressures it might exert on Russia. II. BRIEF OVERVIEW OF THE ECHR, ITS JURISDICTION, AND PROCESSES To explore the potential importance of the European Court of Human Rights to Russian nationals, including Chechen residents, as well as its inherent limitations, it is im- portant to understand some basic features of the ECHR, its jurisdiction, and its processes. The ECHR, headquartered in Strasbourg, France, is charged with adjudicating most human rights complaints in \\jciprod01\productn\N\NYI\43-2dr\NYI204.txt unknown Seq: 4 12-APR-11 17:46 482 INTERNATIONAL LAW AND POLITICS [Vol. 43:479 Europe.2 The Court is a subsidiary organization of the Coun- cil of Europe, one of several pan-European bodies that have “transformed the governance of much of the continent.”3 The Council’s membership currently comprises all of Europe ex- cept for Belarus.4 The ECHR functions as the primary judicial mechanism5 for the Convention for the Protection of Human Rights and Fundamental Freedoms,6 which is “widely considered [to be] one of the strongest international human rights treaties in force.”7 The Convention provides for the protection of several fundamental rights, including a right to liberty and security,8 right to life,9 prohibition of torture,10 right to a fair trial,11 and, importantly, a right to an effective remedy.12 With juris- diction over “all matters concerning the interpretation and ap- plication of the Convention,”13 the Court has been called “the most powerful human rights system currently in existence in the world today.”14 Disputes filed before the Court are limited to complaints against member states.15 The Court is empowered to receive 2. See Paul L. McKaskle, The European Court of Human Rights: What It Is, How It Works, and Its Future, 40 U.S.F. L. REV. 1, 3-4 (2005) (explaining the origin of the ECHR and its role alongside other pan-European organiza- tions). 3. Id. at 3. 4. Council of Europe in Brief: 47 Countries, One Europe, COUNCIL OF EUR., http://www.coe.int/aboutCoe/index.asp?page=47pays1europe&l=en (last visited Nov. 14, 2010). 5. See, e.g., Tarik Abdel-Monem, The European Court of Human Rights: Chechnya’s Last Chance?, 28 VT. L. REV. 237, 258 (2003). 6. European Convention for the Protection of Human Rights and Fun- damental Freedoms, art. 19, Nov. 4, 1950, 213 U.N.T.S. 221, amended by by Protocols 11 & 14 [hereinafter European Convention]. 7. Tarik Abdel-Monem, The Long Arm of the European Convention on Human Rights and the Recent Development of Issa v. Turkey, 12 HUM. RTS. BRIEF 9, 9 (2005). 8. European Convention, supra note 6, art. 5. R 9. Id. art. 2. 10. Id. art. 3. 11. Id. art. 6. 12. Id. art. 13. 13. Id. art. 32(1). 14. Jeffrey Kahn, Russia’s “Dictatorship of Law” and the European Court of Human Rights, 29 REV. CENT. & E. EUROPEAN L . 1, 2 (2004). 15. See Eur. Ct. of Human Rights [ECHR], The ECHR in Fifty Questions, question 20 (2010), available at http://www.echr.coe.int/NR/rdonlyres/ \\jciprod01\productn\N\NYI\43-2dr\NYI204.txt unknown Seq: 5 12-APR-11 17:46 2011] ECHR, RUSSIA, AND CHECHNYA 483 cases filed by member states against each other16 or by any individual, group of individuals, or nongovernmental organi- zations (“NGOs”) against any member state.17 The right given to individuals to petition the ECHR is otherwise “virtually un- heard of in international law, which is typically more con- cerned with sovereign states than with individuals.”18 Applications must meet certain requirements to be de- clared admissible by the Court.19 First, cases can only be brought to the Court after domestic remedies have been ex- hausted. In other words, individuals who complain that their rights under the Convention have been violated must have first attempted to redress those violations in their home coun- try’s courts. Russia often defends on this ground, claiming that this requirement has not been fulfilled by the ECHR ap- plicants.
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