Russia and the European Court of Human Rights: The Strasbourg Effect
Why has there been a human rights backlash in Russia despite the country having been part of the European human rights protection system since the late 1990s? To what extent does Russia implement judgments of the Strasbourg Court, and to what extent does it resist the implementation? This fascinating study investigates Russia's turbulent relationship with the European Court of Human Rights and examines whether the Strasbourg court has indeed had the effect of increasing the protection of human rights in Russia. Researchers and scholars of law and political science with a particular interest in human rights and Russia will benefit from this in-depth exploration of the background of this subject.
Our research shows that ECHR protection of property rights standards in general may be regarded as “legal transplant” for the Russian law. The broad concept of “property”, requirements of proportionality and balance of public and private interests, rule of law prescriptions that form the core elements of property rights protection under the ECHR were mostly unfamiliar for the Russian legal system at the time Russia ratified the European Convention in 1998. Russian legal system cannot be said to be a fertile ground for human rights norms and the ECHR provisions in particular. Long-standing socialist legal tradition (including public interest domination and ultra-positivism) explains many difficulties and challenges of the ECHR implementation process in Russia. The eight chosen empiric examples of the ECHR violations demonstrate numerous collisions of ECHR spirit with attitudes common for the Russian law. Inherent features of the mentioned tradition (that remains dominant in Russia) produce most of the problems that result in disproportionate, unpredictable interference with private property rights, failure of the State to comply with its positive obligations and provide effective remedies to private parties in case of property rights violations. And it is not a coincidence that most of Article 1 P-1 violations by Russia are coupled with violation of Article 6 (for example, non-execution of court decisions, breach of legal certainty in supervisory review proceedings, confiscatory measures taken in course of criminal or administrative proceedings). This brings us to conclusion that Russian courts and judges need to play more proactive and significant role in property rights protection then they do now. Our study also shows that situation with property rights protection is not static but improving. None of the eight problematic areas of property rights violations remained intact; there were numerous positive developments, changes of legislation and case law necessary to remedy the situation. Overall, we may say that Russia has demonstrated its readiness and willingness to reform its legal system and to strengthen private property rights protection. In most instances, we observed dynamic and productive dialog between Russia, ECtHR and Committee of Ministers of the Council of Europe. But the most important impact of the ECtHR on Russia is expressed in gradual evolution of the Russian legal tradition. ECtHR and its legal doctrines, principles, concepts influenced Russian legal system by diffusing, transferring new values, knowledge, best-practices to lawyers, judges, and scholars. ECtHR provoked internal discussions in the Russian legal community, stimulated changes in interpretation of law by courts.
Not only Russia but also other countries are affected by the globalization that threatens, metaphorically speaking, to sweep away not only inter- state frontiers but also states themselves. Transnational and international legal regulation makes state legal systems step back in a number of important fields: along with human rights law, one could also mentionius mercatoria, environmental law, and so on. Within some regional blocks such as the European Union (EU), state legal systems are retreating in many other directions, ceding priority to regional law. The CoE, the EU, and national governments strategically seek to establish their own sovereign interpretation of basic concepts in the legal domain. Furthermore, with regard to fundamental rights themselves, conflicts are inherent in their construction, with rights claims of one individual coming up against those made by another or by a collectivity. Given that the major task of high courts is to decide on the balance between competing rights claims, these courts are required to pay close attention to developments in other legal systems, measuring the future justification of their decisions in open discussion forums, one of which should be the ECtHR. These expectations toward the ECtHR largely shape the Russian attitude, incoherent and ambiguous as it might be. If reiterating that the Kremlin takes anti-Western stances in polemics with the Strasbourg Court, it should be understood that “anti-Western” in this sense does not aim at any particular cultural, historical, or religious background as is the case with anti-Western Islamist discourse. The Russian leadership rather considers itself a part of the European conservative powers that search to set back liberal values and to protect Europe from becoming a melting pot of heterogeneous cultures, religions, and civilizations and from thereby losing its “spiritual buckles.” From the aspect of legal philosophy, two key points are important to understand in this approach: that of human rights and that of sovereignty. The Russian exceptionalist understanding of these two key points largely foreshadows Russian international policy and its “living” constitutional order. The ideas set forth by Valery Zorkin are highly illustrative of this exceptionalism and can serve as a litmus paper for detecting the philosophical background of Russian policies toward the ECtHR.