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Quiet. Russia is listening
Written by   
, 11 2007

By Leonid Nikitinsky in Novaya Gazeta

Anatoly Kovler, the judge selected from Russia to the European Court of Human Rights: Human rights are above national interests.

The European Court of Human Rights building stands on the bank of a beautiful, clean, and rather fast-flowing river. It is in itself beautiful, clean, and similar in shape to a steamer. On the cafeteria terrace, where one can smoke and drink coffee, Iasked the judge: Does a steamship symbolize anything? Anatoly Ivanovich Kovler: Well maybe not one with the speed of a cruiser, since the Strasbourg court, alas, is not fast, but in its architecture, in that part that is artful, something is simply pleasing to the eye. In contrast to jurisprudence, which must subordinate itself to strict logic.

- Anatoly Ivanovich, consider this question: here in Strasbourg what do you feel yourself to be most of all a Russian, or a judge?

- All of us here are patriots, but judges must leave their national galoshes in the court antechambers. Although this is cliché, Iunderstand that your question is deeper and more sensitive. In reality my title is: judge, selected from the Russian Federation. It is not the same as a Russian judge or a judge from the Russian Federation. Perhaps when we are deciding some specific case, which could be titled, for example so and so versus Italy or Turkey, while we still remain national judges (there is such a term), we switch to the language of the law, which for the 46judges selected from 46nations is the only common ground. No, perhaps it would be more accurate to say commonly comprehensible, since the national peculiarities, of course, still make themselves known.

My patriotism, in general, is all in order: both grandfathers fought in WWI and in the (Russian) Civil War, my father was in a frontline infantry battalion, and my mother in 1941dug trenches near Smolensk, and none of them ever beat their chest and exclaimed: Im a patriot! I will not do this, either, particularly since the European Court prides itself on the motto that is in essence the main achievement of the European concept of rights: human rights are above nation interests and governmental boundaries. From time to time the representatives of various governments speak here from the position that, since there is national sovereignty, they can do what they want. This, however, makes a bad impression on the judges. We understand better the universality of rights.

- That means that a judge does not lose his national origin, but finds himself a member of a new group: he speaks in the language of jurisprudence. It seems to me that it would be interesting to carry your idea a little further. Let us say that a judge from a Soviet regional court (I do not know if there even is such a thing) in Syktyvkara, would he also cease to be a representative of the national government?

- Well, to a certain extent, certainly. Any national court is a governmental institution in the sense that the walls, tables, computer, and officials, all come from funds provided by the government. But the process of hearing cases, when the judge examines an argument between a person and that very same government from which he also receives a salary, it is no longer protected governmental space, and here the authorities should not have any advantage over the person. From my perspective as a European judge, Iwould day that the opposite is even true: a person in court can count on the presumption of his rights having been violated by the government defendant, while here the government has the burden of proving that it did not violate the rights of that citizen.

Human rights as a value stands at first place in the Russian Constitution, thank God, so long as no one proposes changing Article 2, so ideally, Ithink, every regional court should also judge things in this manner. By the way, the local judges more often than not do this, but the higher the judge is in rank, the greater role politics may play in his decisions. This is not just a Russian problem; it is, from my observations, a general phenomenon. In the Baltic countries, in court cases involving the rights of our compatriots there, judging from the decisions of the judges, this is clearly evident. But it is not rare in Russia, either. If there is pressure, it is from higher up, though pressure can come also from the side, from the press, for example.

- All of us, not only judges, depend on the nation in which we live and/or are citizens of. With regards to judges, in any country they depend of those who put the authority in their hands. The question is more about the adoption of mechanisms to minimize this dependence. In Russia the president signs decrees naming federal judges, but he certainly does not know them by name or face. In reality the destiny of the judge is in the hands of committees, through which pass the candidates and representatives of the courts, but judges to the European Court of Human Rights also depend on representatives of the government, how else can it be?

- Iwould say that here, in Strasbourg, the mechanism of minimization of this dependence is rather strong. The governments of the 46member states of the European Council offer 3jurist candidates in sessions at the Permanent Assembly of the Council of Europe (PACE). They must have an understanding of the service, and possess the two working languages of the court, or at least English. In this case the government can indicate its favorite, but the assembly and a special jurist commission of PACE can also indicate its favorite, and these do not always coincide. For example, Iwas not the main candidate offered by Russia, but here Iam on my second six-year term. While there is a possibility of putting me forward once more, you may suspect that Imight try to please my government. In accordance with court protocol #14*, however, PACE will choose a judge for a 9-year term without the possibility of renewal. Judges should work without regards to their government, and this is how it turns out you have colleagues, all of whom are very respected in their professional sphere, surrounding you. Any false note, any flirtation with the authorities, is noted right away, and soon an invisible wall of alienation will grow around you.

But Russia is the only nation that refuses to ratify the 14th supplemental protocol to the Convention on the Protection of Human Rights. This probably causes bewilderment here in Strasbourg.

That is an understatement. The matter is not just in that, as the Russian press writes, without amendment it is impossible to simplify procedures. Now there are 95thousand complaints before the court, and 20thousand of these are ours. (And behind each case stands a persons destiny.) But this is only half the problem. The fact is that about 20judges this year are reaching the end of their 3- or 6-year terms: this is fate. Several governments are not completely satisfied in how those selected from their countries represented their countries, and, possibly, they will put forward other candidates. Thiswill take place if the protocol is not ratified before June 30th and comes into force on October 30th. Imagine the position of those judges, and there are, Iwill say again, about 20whose terms are running out, and how this will affect the work of the court as a whole. Almost half the judges are in a packing the suitcase mood.

- How about you? Do you feel normal?

- Well, yes, but I am offended for the state (a movie line from White Sun of the Desert ed.) But Iam hoping that the Parliament of the Russian Federation will ratify protocol 14, since the representatives of Russia worked on it together with everyone else, and put forth no objections in principle.

- And you feel no pressure?

Believe it or not, no one ever calls me up or makes me an offer Icannot refuse to decide one or another question, though there are some reverberations from my nervous reaction to resolutions on the part of the officials back home. And representatives of those filing complaints to the court are becoming more active as well. Why is it that these officials and defenders cannot understand that the multi-step mechanism in reaching a decision grants national courts practically no ability of bending another judge in one direction or another.

We have 46judges, and each has their own history, and their own legal culture. The legal systems in different countries are also different, and the traditions there are even more so, so all judges carry an imprint of the culture and laws of their home countries. I am certainly no exception here. In every phase of reaching a procedural decision, in a decision to accept a complaint or a resolution with the participation of a national judge in a case against the country from which he was selected, you must definitely utilize all of your knowledge and arts of persuasion, in order to convince your colleagues of something that they do not understand.

By the way, critics of protocol 14are dissembling when they say that it will increase the role of one-judge courts. Either way, not a single procedurally important document will pass by the national judge; he has the right to a delayed veto, and the right to offer his own alternative decision. But the ability of influencing him is limited by persuasion, and nothing else. For example, Iconvinced my colleagues that, in Russian cases concerning pre-trial confinement, one must separate the amount of time sitting in jail while under investigation from time spent there during trial, though to someone sitting in an overcrowded SIZO (protective custody lockup), there is no difference.

The composition of the court is divided into five chambers of seven judges plus two accessory judges. This is done so that each chamber has as many different judicial systems, prior experience, and geographical diversity as possible. A case is sent from the secretariat to the court reporter, which readies the resolution. Physical presence and calling the sides into the Strasbourg Court is an exceptional event, because no procedures are performed in the presence of plaintiffs and defendants, but through correspondence with the declarants and their representatives. The court reporter readies the project for the chamber, which sends it to all active and accessory judges in the chamber, and each can of them can latch onto it and offer to formulate something else, and no resolution on the substance of the case will be made or published until then. Such is procedure. Can you can see any wiggle room in any of this?

Let us say that Iwould like to win a certain case against the government of the Russian Federation, or the opposite, against the other side. But orders are translated into the working languages of the court into memoranda where the competence and persuasiveness of the sides (or the absence of such) is clearly evident; it is a matter of read and compare. A national judge is definitely in chambers when a case is examined from his country, and his judgment is highly regarded by his colleagues, since it is that judge who knows the realities of that country best. But it often comes out that it is this very judge who takes a harsher position on most of the problems in his country. When one must explain cases connected with conditions of deprivation of freedom in Russia, where in the SIZO the can is a half-meter from the pillow, do you know how much one must blush?

- Perhaps, due to such a set up, it really is difficult for a government to influence a case decision through their judge, but is it not still possible to have some influence? By the way, how do they relate to the retirement of Russian representative Pavel Laptev in Strasbourg? Where we are, they say that he lost every case, while others connect this with a change in the internal policies of government structures with regards to people making appeals to the European Court: when Laptev was there the government was peaceful, they tried to somehow neutralize those making declaration with scraps, but now one often hears about persecution

- Iwill not comment on retirements and appointments; this is a right of the authorities. But as far as persecution for filing complaints with us, we have not received a mass of such signals. Though this is by far not just the case in Russia, it does slip into cases. Here, if a convict writes from his place of confinement to Strasbourg, sometimes they summon him in, or press him, as we sometimes put it, or they persecute the lawyers and open criminal investigations against them. There was a case where a woman who helped translate a complaint and received one thousand rubles had the police descend on her during her birthday, and drag her down to the tax inspection service to explain things. And there has been the opposite, where a prisoner called me up directly from the office of the prison warden, and thanked me.

The protection of those filing complaints, if we wish to speak in criminal rights terms, is always managed well by the Strasbourg Court. Sometimes it is abused in non-judicial arguments, and this relates not only to complaints from Russia. This can cost a declarant: a complaint may be refused if the one who files is abusing this right for political aims. Speculation on our authority happens for many reasons, however. It is sometimes political, where the press tosses around all sorts of false reports from a certain source in Strasbourg, or it is mercantile: there are some sharp fellows who print out our forms off the Internet and sell them. In Russia there are actual specialists who work on cases to be sent to the European Court: they work at the Centers For International Protection in Moscow and Rostov, and at the Committee Against Torture in Nizhny Novgorod and Samara, and in Yekaterinburg they are active and several former declarants from those regions have become professionals. After all, it would be incorrect to say that you cannot convince the judges in Strasbourg of anything. It is possible, but only if you have specific and literate legal arguments. As far as the government as a whole, they should also work on complaints.

- But in what way should it work?

In several categories of complaints. After a decision in a specific case relating to the non-payment, for example, of allowances to Chernobyl survivors, in certain regions they began to pay everyone, but, let us say that in Rostov or in Voronezh the irregularities in payments continue, and these regions then become the champions as far as the number of complaints coming from Russia. After the award of 250thousand Euros in compensation to Mikheev, who was tortured into a confession in Nizhny Novgorod, then later tossed from a police station window and remains an invalid, on the personal initiative of the justice minister, my decision in the case of Mikheev versus the Russian Federation, Iwas told later, was ordered studied in all MVD(interior ministry ed.) directorates. I do not think that one can fix everything at once, such as the places of confinement, but at least there is the desire.

It is not just the Constitutional Court and the Supreme Court, but the regional judges also cite precedents from the European Courts. Ihave been collecting such decisions and trying to present a report for court reporters to examine other similar cases from Russia, such as in the Lipetsk district. There, while rendering his judgment on a beating a plaintiff received in police custody, the judge cited Article 3of the Convention, and our precedents on the impermissibility of inhumane treatment of detainees. Finally, on the website of your court information agency, Ifind decisions of regional Russian courts that seem to me to be very Strasbourg-like in their essence, though there were no direct citations of our precedents. But it sometimes happens that people in the regional courts award pensions or back pay, and later the finance departments collect several such decisions and initiate a so-called supervision of the court, and so the district court changes these decisions, seasoning them with some sorts of formalities, which is fine if people do not need their money. There are several thousand such supervised changes of court decisions in social-welfare cases. Supervision of civil cases act on Strasbourg judges like a red flag does on a bull, and the abuse of supervision is one of the systematic violations of human rights in Russia.

Complaints arrive at the court relating to criminal court proceedings. Not long ago we had yet another delegation of Russian judges. I dedicated my speech before them to this theme: judges practically never refuse prosecutorial petitions on pre-trial confinement of the accused. The facts of the case do not matter, nor do the defense arguments, only the inference of guilt bear weight in these as yet unproven crimes. And then they say that our pre-trial confinement facilities are overcrowded, and the complaints about the conditions in the SIZO are not drying up. As far as protective custody goes, this is also a catastrophe. In other words, all of these problems are systematic in character.

Systematic violations demand the adoption of some sort of systematic measures, and you cannot skimp on this. It is by no means necessary to wait for decisions to come from the European Court, which entail the payment of compensation from the budget, and unpleasantness to the nation.

There is, for example, still a whip that used in failure to carry out the decision of Russian courts in lawsuits of citizens against the government organs: pensions and allowances. It is often impossible to exact sums in compensation for mental anguish or suffering in judicial decisions. The financial organs dig in their heels against such payments, linking their decisions to the absence of corresponding legal articles in the budgets, while such legal retribution undermines the authority of the judicial system, even though it played its part in the work. A mass of claims against the executive branch is expressed at various levels, including in the Supreme Court of the Russian Federation, but there are no systematic measures. Perhaps there must be a legislative initiative to grant the court bailiff service the power to confiscate government or municipal property or budgetary resources, which they cannot now do, in contrast to the property of private persons and companies. Then this problem of failing to carry out court decisions, Ithink, would immediately be solved, but Ihave not heard of any such initiatives.

In Italy, which until recently was the champion at Strasbourg with regards to the number of complaints about judicial red tape, they got together and passed the Pinto law, which allotted the countrys high court of appeals the right to reward compensation, similar to the Strasbourg Court, for judicial red tape. When this happened the number of complaints from Italy immediately fell by a factor of three. Perhaps someone could think up something similar in Russia. Something must be changed in the system itself, in principal, to approach human rights in Russia in a good manner, and not blow it all off to Strasbourg.

- But maybe the Russian government in general believes that it has had enough of the Strasbourg Court, and that it would be cheaper to leave the Council of Europe? Please do not answer that, it was a joke. But other than jokes, is there anything about Russia that does not make you blush, but proud?

- One can be proud of how noticeably the quality of the decisions coming to us from the Russian courts have improved. When Istarted here seven years ago, Istill had to decipher handwritten scribbles, with mistakes, but now judges selected from other countries envy me: how nice and literate you have everything there, the quality and intelligibility of the judicial arguments are high. Thejudges who speak Russian here can confirm this. The Russian jurists selected by competition at the apparatus of the European Court, there are many here from Saratov, Belgorod, Krasnodar, Nizhny Novgorod, Yekaterinburg, Irkutsk, and not just from Moscow and Petersburg. They are highly regarded. Yes, and in general we have a right to be proud of our people.

The champion of the European Court in all its 98years was one of our grannies, Matryona Fyodorovna Polupanova from Novovoronezh, who won the case concerning her pension, which had not been paid for four years. My colleagues asked me: Listen, how could she even live for four years? And Itold them: There are real women in the Russian villages. But more than anything Iam proud, however fervent this may sound, in the indestructible feeling of justice that Russians have, in their ability to meritoriously defend their rights in the European institutions. Just let someone try and say that defending justice and human dignity is unpatriotic.

*The 14th protocol offers to increase the terms of judges from 6to 9years without the right of re-selection, and grant the court the ability to examine cases with only one judge in a court, committees of 3judges, a lower chamber of 7judges, and an upper chamber of 17. A single judge could declare a complaint inadmissible if such a decision could be made without supplemental study of the complaint, and as such the decision would be final.

The Russian parliament found this protocol to be extremely influenced by subjective factors and declared that it would not vote for a document that violates human rights.

Information from Novaya Gazeta

Since Russias 1998ratification of the European Convention on Human Rights, 50thousand Russians have filed complaints in Strasbourg: in 2001 2,290, in 2002 4,716, in 2003 6,602, in 2004 7,855, in 2005 10,009. In 2006about 19,000 complaints were received from Russia at Strasbourg.

Every fourth lawsuit examined by the European Court is Russian.

About 90% of the suits accepted for examination in Strasbourg are determined by the European Court to be human rights violations.

In 2002, the government of Russia was required to pay compensation to its citizens in the amount of 353,000 rubles. In 2004: 21,400,000 rubles, in 2006: 110million rubles.

The Russian budget for 2007has set aside more than 110million rubles to compensate for decisions made by the European Court.

The 2008to 2010budgets will set aside about 114million rubles a year for compensation.

Russias yearly fees to the Council of Europe budget are about 27million Euros (the fifth largest).

The European Court, if it finds in your favor, can do three things. Firstly, it can obligate the government to pay you compensation for your damages. In practice, the amount of compensation depends on the category of the violation of the citizens rights, but it usually is not greater than 35thousand Euros. There is usually no problem with these payments: Russia pays timely and full compensation to people who have won at Strasbourg. There is a special line in the federal budget for this. This money is not taken from the finance or justice ministries, as would be logical, but for some reason from the presidential directorates budget, which has no problem with this mission.

Secondly, Strasbourg can demand from Russia resolutions on violation of citizens rights (including property rights) and punishment of the guilty. Doing this is much more difficult. Russian officials cling tightly to their places, and while they do not lament payments to citizens affirmed in Strasbourg, local authorities, as a rule, do not have the means, and one must again run from department to department to get things done, sometimes even by filing a new complaint with the European Court.

Thirdly, the European Court can require a government to remove the cause of the violation of your rights (which is actually the main goal of the Strasbourg Declaration). But this is almost impossible: it is simpler for the government to pay than to reform, for example, the law-enforcement apparatus or the pension system.
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