Russia's Love-Hate Relationship With European Court of Human Rights

Russia has long held that the European Court of Human Rights, which has repeatedly questioned the country's human rights record, infringes on its sovereignty. The Aleksai Navalny case is the latest in a series of tussles between the country and the court.

On February 7, 2017, 40-year-old Aleksai Navalny, Russian President Vladimir Putin’s most vocal contemporary political opponent, was convicted by a criminal court in the city of Kirov on charges of embezzlement. The conviction resulted in a suspended sentence of five years’ imprisonment, which effectively bars Navalny from contesting the 2018 presidential election as Russian law prohibits a convict from standing for elections to a public office. The news was covered widely by the international media, casting aspersions on Navalny’s conviction as a Kremlin-initiated political conspiracy to stifle democratic dissent. Irrespective of these claims, the real significance of Navalny’s conviction lies in a different, albeit ignored, contextual setting.

Navalny’s conviction comes barely a week after the Strasbourg-based European Court of Human Rights (ECHR) ruling in the Navalny v. Russia case, ordering Russia to pay a monetary compensation of €63,000 to Navalny for the violation of numerous rights enshrined in the European Convention of Human Rights. Navalny was first convicted in 2013 for embezzling 16 million roubles in a timber transaction that caused losses to a state-owned company. The conviction was overturned by the ECHR followed by a Supreme Court ruling ordering a retrial. The February 7 verdict is the culmination of this four-year-old legal process through which Navalny has consistently maintained that he is innocent. While the ECHR’s ruling pertained to Navalny’s illegal arrest, pre-trial detention and violation of the freedom of assembly, as granted by the convention, during anti-government demonstrations in 2012 and 2014, there is little doubt that the Kremlin views the same as an external judicial effort to bail out a troublesome political dissident. The ruling is an addition to the long line of human rights cases that have strained Strasbourg-Moscow relations to a point of uncomfortable and embarrassing bonhomie amidst historical turf wars being fought between the ECHR and Russia’s domestic legal actors. With close to a third of the court’s docket emanating from Russia and the general apprehensions surrounding transnational human rights adjudication, ECHR’s latest judgment offers an opportunity to examine the historical setting of this complex relationship and throw better light on the timeliness of Navalny’s domestic conviction.

Russia’s run-ins with international law

Although Russia joined the Council of Europe in 1996 and ratified the European Convention of Human Rights in 1998, its first major encounter with the ECHR came in 2012. The first run-in concerned the case of military serviceman Konstantin Markin. This was the first time that the ECHR practically overruled a case decided by the Russian Constitutional Court, sending tremors through the Russian legal system.

Markins was denied three years parental leave on the grounds that such a right is only available to women in service. Markins’ efforts to secure justice in the Russian legal system were met with constant rebuffs, with the Constitutional Court holding that Article 38 of the Russian constitution recognises only ‘motherhood’ and ‘childhood’ as entitled to the state’s special care and attention. Using Article 34 of the convention – which permits individual complaints to the court – Markins approached the ECHR and found considerable sympathy in Strasbourg. The court ruled that the denial of parental rights to a father was a violation of Articles 8 and 14 of the European Convention of Human Rights (the former requiring respect for private and family life and the latter prohibiting gender discrimination). The judgment was greeted with strong displeasure in Russia with Valerii Zorkin, the Constitutional Court’s chairman, accusing the ECHR of violating Russian sovereignty and tampering with the country’s unique social rights model, not to mention its harmonious blend with the Russian legal system. Since then, the ECHR has been viewed as an institutional interloper for identifying loopholes and shortcomings within the country’s domestic legal system. None of these allegations seem to have rubbed Strasbourg the wrong way as evidenced by the conviction of its Russia jurisprudence in subsequent cases.

The ECHR’s attempts to address human rights violation claims in Chechnya have proven to be equally sensitive matters. While it has consistently demanded criminal case files from Russia to effectively evaluate human rights violation claims, Russia has refused the ECHR’s requests for strategic reasons. Access to such documents is integral to the court’s ability to assess the viability of the state’s investigations, especially in cases of enforced disappearances and instances of mass killings. Article 38 of the convention obliges state parties to “furnish all necessary details” to the ECHR in their judicial functions. To avoid the obligation under Article 38, Russia has sought shelter under Article 161 of the Russian code of criminal procedure, which prohibits the disclosure of sensitive information that can potentially harm the interests of relevant stakeholders in the criminal justice process. Russia has claimed this exception to be consistent with the ECHR’s principle of “subsidiarity,” according to which the jurisdiction of the court operates subordinate to respective national jurisdictions. Russia’s dogged determination to free itself of any obligation under Article 38 has been a constant source of tension in its relations with the court and an integral part of its Strasbourg policy.

In January 2017, the Russian Constitutional Court struck down the ECHR’s 2014 judgment awarding $2 billion to Yukos, once the country’s largest oil producer, on the grounds that the court’s ruling was an illegal infringement of Russian sovereignty.  This case brought back memories of the Markins case in light of Moscow’s strongly worded denunciations that the ruling was political. Moscow reiterated its age-old stance that the Constitutional Court remains the final arbiter of legal claims in the country and Strasbourg rulings must display consistency with Russian legal principles in order to be accepted as legitimate.

What to expect next

These instances explain the sensitivity of ECHR jurisprudence in Russia and the possible timeliness of the Kirov verdict. While dissidents like Gary Kasparov and the late Boris Nemtsov have been systematically targeted, and effectively neutralised by the Kremlin under dubious circumstances, Navalny has, over the last five years, emerged as the strongest crusader against the Putin administration. Although the relatively inexperienced Navalny does not command popularity ratings nearly as high as Putin’s, he has all the makings of being a strong opponent to Putin’s future presidential ambitions.

With the next presidential elections due to take place in 2018, there appears to be little doubt that Putin will seek re-election. In such a scenario, Navalny is the only viable opponent capable of launching a symbolic mass movement against Putin, irrespective of the currently unlikely possibility that he will actually cause an upset for the president. Given the ECHR’s rich legacy of questioning Russia’s human rights record, despite Russia’s allegations of unwarranted judicial activism in the aftermath of the Constitutional Court’s Yukos ruling, the Navalny ruling is proof that Strasbourg is in no mood to bend down before the Kremlin’s tough men. If the Kirov ruling is a response to the Navalny judgment, international human rights law is staring at a cold long winter ahead.

Abraham Joseph is a PhD Candidate in International Criminal Law from NLSIU, Bangalore and an Assistant Professor in Ansal School of Law, Ansal University, Gurgaon.