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Two fingers to the court: why right-wing criticism of the ECtHR is misguided

By Oliver Bullough
May 2nd 2012

Following the UK government’s bungled attempt to deport Abu Qatada, many Tory MPs have taken to heavy criticism of the European Court of Human Rights. While their rhetoric may please parts of the domestic audience, it risks damaging the very serious and substantial human rights work the Court is doing in Russia, explains Oliver Bullough.

On Tuesday, April 17, Home Secretary Teresa May ordered the arrest of Abu Qatada, launching a new round in the spectator sport his extradition proceedings have become. He, it turned out, still had 24 hours to appeal to the European Court of Human Rights and promptly did so. The government was humiliated, and the ECtHR was savaged by some of May’s colleagues in the Conservative Party.

UK Home Secretary Theresa May used the Abu Qataba deportation dispute to criticise the remit of the European Court of Human Rights. Many believe such strong, antagonistic postions undermine the court’s authority where it is needed most.

“You must not delay in getting this scumbag and his murderous mates on a plane out of this country. And in so doing would you send a metaphorical two fingers to the ECtHR?” asked MP for Broxbourne Charles Walker of the home secretary, in a tone picked up throughout the Tory-allied press.

That tone dates back at least as far as a speech given by David Cameron in January in which he proposed to the Council of Europe that it reform the court. He made some good points, but he provided material for the court’s detractors too, by picking out one case – in which a plaintiff tried to sue a bus company for failing to provide reclining seats. Even though the case was thrown out, he used it to paint the court as choked full of spurious cases that stop it from doing valuable work protecting human rights.

Two other rulings…

On that same Tuesday, April 17, despite the backlog of such cases, the court did manage to get two decisions out. Neither of them received any coverage in the UK or, apparently, anywhere. The British papers have been criticising the ECtHR for over-ruling parliament and imposing foreign rules on Britain but, had they seen these two rulings, you hope they might have held back some of the vitriol.

In the first — Estamirova versus Russia — a Chechen woman won compensation for the killing of her husband by Russian soldiers in Chechnya in 2001. As well as detailing the decision, the case documents laid out the lonely path to justice she has walked for the last 11 years.

Her bureaucratic torment started with the issuing of a death certificate, passed through three successive decisions by Russian prosecutors to suspend the case since they had failed to find the perpetrators, years of dormancy while she pushed to get the case opened once more, repeated refusals by military prosecutors to say who the soldiers in Argun that day had been and constant shifting of the case between various government bodies.

The Russian government’s defence was that – despite the fact that its investigators had uncovered literally no evidence of who the perpetrators might have been in more than a decade – the investigation was still ongoing, and the ECtHR was thus wrong to intervene. The ECtHR disagreed. Although it said she could not prove which soldier had killed her husband – largely owing to military officials’ own failure to investigate – it did say the failure to investigate was itself a violation of her rights, and awarded her 30,000 euros.

“For us it is a big help of course. Although this money does not return our father but is better than nothing. It is sad that they did not rule on the murder but we are very grateful that they gave us some material compensation,” said Markha Estamirova, daughter of the murdered man.

In the second, a joint ruling for Ilyushkin and Others combined with Kalinkin and Others versus Russia, the ECtHR decided in favour of 50 members of the Russian armed forces who had not received housing they were entitled to.

“The domestic court judgments ordering that the applicants be provided with housing were of immense importance to them, all of whom had been professional members of the armed forces, and the failure to enforce the judgments had caused them distress and frustration,” the ECtHR’s statement said. It awarded a total of more than 336,000 euros to the ex-servicemen.

ECtHR as Russia’s Supreme Court?

The ECtHR’s intray is, as Cameron said, bulging. There are 15,000 pending applications from Turkey, 13,000 from Italy, 12,000 from Romania and 10,000 from Ukraine. But it is Russia that provides the most. Some 40,000 cases from Russia were outstanding by the end of last year, which is more than a quarter of the total.

‘The ECtHR’s ability to cut through official delay and incompetence has given it an almost legendary image in Russia.’

Russian courts have been reformed since the end of the Soviet Union, but there may as well not have been. Despite efforts to bring in jury trials, transparency and so on, some 98 percent of cases still end in a conviction. In some regions – such as Krasnodar in the south – if the state prosecutors open a case against you and take you to court, you will 100 percent of the time be found guilty.

As it happened, while the British press was fixating on the government’s failure to get Abu Qatada out of the country, these two rulings on Tuesday, April 17 were quietly demonstrating the full range of work that the court does to provide justice for Russian citizens let down by their own court system.

At one extreme, there was a finding in favour of a Chechen woman whose husband had been killed by Russian soldiers. At the other extreme, the court was protecting the rights of those same Russian soldiers against the Russian state. It is hard to imagine how a day’s caseload could be more indicative of the legal nihilism that Russia has sunk into or the importance of Strasbourg in opposing it. In both examples, Russian officials delayed, obfuscated and failed to do the duties they were supposed to do, until the ECtHR slapped them down.

The ECtHR’s ability to cut through official delay and incompetence has given it an almost legendary image in Russia. That status was exemplified in the Kremlin-backed statelet of South Ossetia in February after government officials erased opposition candidate Alla Jioeva’s victory in the presidential poll.

“I warn you,” she wrote in an open letter to then acting president, “that as a citizen of Russia I will sue all guilty people, including you, in court in Russia and if it is necessary, in Strasbourg.”

It is unlikely that the ECtHR would intervene in the electoral affairs of a country recognised as independent only by Russia and a handful of clients in South America and the Pacific, and which is not itself a member of the Council of Europe, but extremely telling of its reputation that she thinks it could.

Russia only signed up to the convention on human rights and thus the court in 1998, but its citizens have flooded in since. Since 1959, the ECtHR has ruled 341 times that a state has killed someone. Some 202 of those cases – 60 percent – have been against Russia. 31 out of 84 torture cases have been against Russia, as have 357 out of 1,007 cases of “cruel or inhuman treatment”.

The risk of contagion

The torrent of decisions has not gone un-noticed by top officials. A court decision last summer forcing Russia to give paternity leave to servicemen provoked Alexander Torshin, then acting speaker of the upper house of the Russian parliament, to propose a new law that would guarantee the supremacy of Russian courts over the ECtHR.

“I think that, with its new practices, the Strasbourg Court, departing from the bounds of the European Convention, has moved into the area of the state sovereignty of Russia, and is trying to dictate to the national lawmaker which legal acts it must adopt, which thus violates the principle of the superiority of the Constitution of the Russian Federation in the legal system of our state,” he wrote in an article in the government’s own newspaper Rossiiskaya Gazeta.

He then listed other countries that have had trouble with the court over the years – Germany, Britain, Switzerland and Austria – using their efforts to find a way to square their own legislation with the court as justification for his own bill.

Although the bill has not got anywhere since it was mooted in July, his article was a clear sign that criticism of the court in western countries where it does little work is amplified in Russia where its work is crucial.

“There is a risk of this attitude in the UK to judgements of the court negatively impacting on other states and complaints being made of double standards. This could result in a wider refusal to implement ECtHR judgements across the Council of Europe.”

Nicholas Bratza, President, ECtHR

“One worries about contagion,” Court President Nicholas Bratza told the authors of a report on the court for Britain’s Equality and Human Rights Commission. “There is a risk of this attitude in the UK to judgements of the court negatively impacting on other states and complaints being made of double standards. This could result in a wider refusal to implement ECtHR judgements across the Council of Europe.”

And that is a view shared by lawyers who help Russian citizens to bring their cases to Strasbourg. Philip Leach, a professor at London’s Metropolitan University and director of the European Human Rights Advocacy Centre, said the risk was that British criticism might embolden Russian officials tempted to just ignore the court.

Russian justice routinely favours state proseuctors, returning more than 98% guilty verdicts. Rightly or wrongly, the ECtHR has now built a reputation among Russians as the forum to turn to if they want a fair hearing. Photo: Fred Schaerli

“There is certainly a serious risk that excessive and unjustified criticism of the Court from within countries like the UK – especially where the criticisms come from senior politicians – will further embolden states like Russia not to implement its judgments,” he said.

The EHRAC has won 52 decisions related to human rights violations in the North Caucasus. Although Estamirova’s case was not one of them – that was brought by the Russian Justice Initiative – most like hers have found the Russian state guilty under Article 2 of the convention, which governs the “right to life”.

Leach argues that, since many of these cases relate to similar and sometimes the same incidents, they mean Russia has effectively refused to change its system to reflect the rulings. This is serious since one of the few triumphs in Cameron’s much-trumpeted reform of the ECtHR was a political commitment from all countries to improve their own systems.

“The inadequacy of official investigations has been a feature of almost all of these cases and is of a scale such as to constitute systemic failure. Furthermore, despite being the subject of supervision by the Committee of Ministers since 2006, no real, concrete progress towards securing effective investigations has been made,” the EHRAC said in a statement arguing for Council of Europe countries to get more involved in investigating abuses in Russia.

He and many other legal activists fighting to bring justice to Russian citizens will worry that further heated criticism in the UK will just embolden Moscow to ignore the serious work the ECtHR is doing there. But, if Tory MP Charles Walker’s response to that suggestion is anything to go by, that criticism is not going to stop any time soon.

“I’m not elected to represent Russian constituents, I represent constituents in Broxbourne. We have established institutions in this country, we have always been excellent at balancing the rights of individuals with the needs of the state and that cannot be said of Russia,” he said.

“To be honest, this is a matter for Russia, it is nothing to do with us. Russia has fundamental issues which are just nothing to do with the UK.”

Originally published in Open Democracy

Published on May 5, 2012 | Carousel and tagged with , .

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