Russia and the European Court of Human Rights Valerie Sperling

Russia and the European Court of Human Rights Abstract: Within the context of a broader study of transnational institutions and accountability, this paper examines the European Court of Human Rights’ effect on accountability within Russia’s political and judicial systems. Russia’s experience with the ECHR to date has produced an ambivalent response from the Russian political leadership and judicial system. While the government continues to enforce citizens’ rights only selectively and has not changed course on some of the major issues raised in ECHR decisions, there are signs that Russia has taken steps toward remedying some of the human rights violations most frequently raised at the ECHR by its citizens. Russian judges, too, are paying attention to the ECHR’s rulings to varying degrees, which may in the long run improve the state’s legal accountability mechanisms. But over the decade during which Russia has been subject to ECHR rulings, the Russian government has become more authoritarian, not less. While transnational legal institutions like the ECHR give the aggrieved citizens of non rule-of-law states like Russia a chance for a fair hearing, their ability to force more than marginal improvements in governmental accountability is highly constrained. Valerie Sperling Clark University Department of Government and International Relations 950 Main Street Worcester, MA 01610 Telephone: 508 793 7679 Email: [email protected] Paper presented at the American Political Science Association Meeting, August 28-31, 2008, Boston, MA Please do not cite without author’s permission. From Altered States: The Globalization of Accountability (Cambridge University Press, forthcoming). © Valerie Sperling 2008 **Not for citation without permission of the author.** 5 Trials and Tribulations: Transnational Judicial Institutions ___________________________________________________________ The global political system has become increasingly permeated by transnational judicial institutions and legal instruments. As more and more states subject themselves to elements of this transborder legal system, it is worth exploring the ways in which transnational judicial bodies hinder or promote state accountability and the rule of law. While individual citizens may see in transnational judicial forums an immediate and practical way to pursue justice previously unavailable to them, non-governmental organizations (NGOs) also regard such institutions as having a more long-term transformative potential, hoping to use them as a means to press for political change at home. This chapter focuses on Russia as a non-democratic state subject to the rulings of the European Court of Human Rights (ECHR), a transnational court located in Strasbourg, France. The ECHR rules on the basis of the 1953 European Convention on Human Rights and its protocols, holding signatory states accountable for violating the rights of their citizens. The increasing number of cases brought to the ECHR in recent years suggests that when national courts fail to protect human rights, people invest their hopes for accountability in transnational judicial institutions. Although claimants must exhaust their options for recourse within their domestic legal systems before turning to the ECHR, the growing use of this transnational court by Russian citizens indicates reliance on an external actor to redress domestic accountability failures.1 Historically, in Western Europe, citizens’ rights such as press freedom, the right to freedom of assembly, and the right to property – all of which find defense in the European Convention on Human Rights – were recognized and enforced (or ignored and violated) by local actors, rather than at the national or transnational level. The “control over justice,” for instance, had been previously the province of “manorial lords, churches and communities.”2 Over time, the power to adjudicate such rights came to be located in the state as the result of its “abridging, destroying or absorbing rights previously lodged in other [more local] political units.”3 As a result of this “public-ization” of formerly private or local rights, tasks like the management of justice became the job of the state. As the twenty-first century began, however, that particular task was becoming less exclusively the job of the state, and was increasingly shared with transnational judicial entities aiming to hold states accountable for observing human rights at home. In what ways has participation in the ECHR affected the Russian state’s protection of human rights? In brief, Russia’s experience with the ECHR to date has produced an ambivalent response from the Russian political leadership and judicial system. While the government continues to enforce citizens’ rights only selectively and has not changed course on some of the major issues raised in ECHR decisions, there are signs that Russia has taken steps toward remedying some of the human rights violations most frequently raised at the ECHR by its citizens. Russian judges, too, are paying attention to the ECHR’s rulings to varying degrees, which may in the long run improve the state’s legal accountability mechanisms. But over the decade during which Russia has been subject to 1 Making claims through “external institutional channels” like the ECHR represents an instance of what political scientist Sidney Tarrow calls “externalizing contention” (Tarrow, pp. 151-154). 2 Charles Tilly, “Reflections on the History of European State-Making,” in Charles Tilly, ed., The Formation of National States in Western Europe (Princeton, NJ: Princeton University Press, 1975), pp. 36-37. 3 Ibid. ECHR rulings, the Russian government has become more authoritarian, not less. While transnational legal institutions like the ECHR give the aggrieved citizens of non rule-of- law states like Russia a chance for a fair hearing, their ability to force more than marginal improvements in governmental accountability is highly constrained. The domestic accountability ramifications of Russia’s involvement in the ECHR are explored below. The Power of Transnational Courts Even in democratic states, courts appear distinctly undemocratic. But such non-elected courts are “undemocratic” by design. Their occupants are protected from sanction by the public, and hence from democratic accountability, in order to be able to protect the rights of the minority or to back individual claims against a government’s abuse of power. Despite their unaccountable design, courts – particularly transnational courts, for citizens living in less than democratic states – can enhance democracy by providing new avenues for citizens’ political participation and empowerment,4 and by trying to hold member states accountable to the human rights agreements to which they are party. The European Court of Human Rights (ECHR) commands “great legitimacy despite [a] near total lack of direct democratic legitimacy.”5 There exist a handful of regional human rights charters and courts to uphold them, including the European Court of Human Rights, the Inter-American Court of Human Rights, and the Banjul (African) Charter on Human and Peoples’ Rights of the Organization of African Unity (OAU).6 Regional human rights agreements like the 4 Rachel A. Cichowski, “Courts, Rights, and Democratic Participation,” Comparative Political Studies, Vol. 39, No. 1 (2006), p. 53. 5 Moravcsik, “Is there a ‘Democratic Deficit’ in World Politics?” p. 360. 6 The latter lacked a court of human rights as an enforcement mechanism until 1998, unlike the European and American charters. For an overview of transnational courts, see Mary L. Volcansek, “Supranational Courts in a Political Context,” in Mary L. Volcansek, ed., Law above Nations: Supranational Courts and the Legalization of Politics (Gainesville, FL: University Press of Florida, 1997), pp. 1-19; and Burns H. Weston, Robin Ann Lukes, and Kelly M. Hnatt, “Regional Human Rights Regimes: A Comparison and Appraisal,” in Richard Pierre Claude and European Convention on Human Rights or the Inter-American Convention on Human Rights are designed not to regulate interstate relations, but “to hold governments accountable for purely internal activities.”7 When brought to transnational court, a state may find itself in a position where its domestic law is ruled in violation of an international convention even if the law in question was “enacted and enforced through fully democratic procedures.”8 Transnational human rights courts would thus appear to present a “challenge…to liberal ideals of direct democratic legitimacy and self- determination.”9 However, the fact that the European Convention on Human Rights has been given the status of national law in many European states would seem to attenuate the criticism of transnational courts as flouting democratic legitimacy.10 Transnational (sometimes called “supranational”) courts can have dramatic effects within the states subject to their rulings. In 2000, Tanja Kreil, a 23-year old German engineer won a significant victory at the European Court of Justice (ECJ), leading to the elimination of Germany’s prior ban on women in combat positions.11 In January 2001, 244 women entered the German military forces, no longer restricted to “medical and Burns H. Weston, eds., Human Rights in the World Community, 2nd edition (University of Pennsylvania Press, 1992), pp. 244-255. On the Inter-American Court, see John F. Stack, Jr., “Human Rights in the Inter-American System,” in Volcansek, ed., Law above Nations, pp. 99- 117; on the establishment of the African court,

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