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Реформирование средств защиты прав человека в России: общие и частные вопросы
The article is an analysis of the dynamics of domestic remedies against human rights violations in the
Russian legal system in recent years. The State’s obligation to create effective domestic remedies for
the protection of human rights and freedoms is established by the basic international documents on
human rights protection and reflects the interaction between national and international levels of
such protection. These obligations of the State are an illustration of the subsidiarity principle that
lies at the foundation of international mechanisms of human rights protection. Moreover, the effectiveness
of domestic remedies is closely linked to the enforcement of international courts’ judgments
on the adoption of general measures to get rid of systemic/structural problems, as general measures
normally presume the creation of effective national mechanisms to solve them. In the case-law of the
ECtHR domestic remedies are divided into preventive and compensatory ones, and it is a combination
of both that ensures the necessary level of effectiveness. Besides, there may be general or special
remedies, depending on the scope of rights and freedoms whose violations they are called upon to
prevent. In the Russian legal system we observe synchronisation of general (judicial) means of human
rights protection which must be exhausted before lodging an application with the European
Court of Human Rights. If earlier these means varied in accordance with the type of proceedings —
from appeal up to supervisory review — currently cassation appeal has been recognised by the ECtHR
as an effective remedy in all types of proceedings. As a result, is should be exhausted before applying
to Strasbourg. The last example of this kind was in the decision Anikeyev and Ermakova v.
Russia on the admissibility of a complaint arising from the new cassation appeal in criminal proceedings.
However, the question of supervisory review proceedings in their new format and of the effectiveness
of procedures in misdemeanour (administrative) proceedings remain open. As regards specific
remedies relating to particular types of human rights and freedoms, the Committee of Ministers
of the Council of Europe distinguishes systemic problems that call for the adoption of general measures
from improvement of domestic remedies against violations of human rights. To illustrate this in
the article, the authors have chosen cases on disappearances in the North Caucasian region and beyond
it. The enforcement of ECtHR’s judgments in this type of case is particularly complex as it implies
the adoption of a whole set of various measures — both individual and general — the list of
which goes well beyond measures of only a legal nature. It produces particular difficulty in enforcing
this group of judgments.