COMMENT: How to solve a conflict when the perpetrator is not listening?
Dealing with the Russian ECHR cases after its expulsion from the Council of Europe
On 16 March 2023, the Committee of Ministers expelled Russia from the Council of Europe because of the invasion of Ukraine. The European Court of Human Rights (ECtHR) continues to process applications lodged against Russia when they occurred until 16 September 2022, the day on which Russia ceased to be a party to the European Convention on Human Rights (ECHR). Currently, there are 16,160 applications against Russia pending before the ECtHR. This number includes important inter-state cases, such as, the case of Ukraine and the Netherlands v. Russia concerning the conflict in eastern Ukraine and the downing of flight MH17. Comparably, the Committee of Ministers, which is responsible for supervising the execution of the ECtHR’s judgments under Article 46(2) ECHR, continues to supervise the about 2500 cases against Russia pending before it, which require Russia, inter alia, to pay over 2 billion euro just satisfaction.
Russia, however, ceased all communication with the ECtHR and the Committee of Ministers. It neither attends proceedings, nor submits written observations (see also here and here). Moreover, Russia adopted a law stating that it will not implement ECtHR rulings that have come into effect after 15 March 2022 and another law clarifying that it will not pay just satisfaction.
The ECtHR continues to process applications lodged against Russia (see also here and here) in almost the same manner as it used to do when Russia was still a state party and has, for example, decided not to grant a general extension of the time-limit for lodging an application (see also here). Additionally, Russia’s failure to ‘participate effectively in the proceedings does not automatically lead to acceptance of an applicant’s claims’; the ECtHR ‘must be satisfied by the available evidence that a claim is well-founded in fact and law’. In one respect it does depart from the Rules of Court, because it does not set in motion friendly settlement discussions for the about 12,000 pending cases that are the subject of well-established case-law.
It is also – to the extent possible – business as usual for the Committee of Ministers. It, for example, still considers communications by the victim and NGO’s and continues to adopt decisions and interim resolutions (but without a debate). One of its approaches to dealing with Russia’s silence is that it has invited the Council of Europe’s Secretary General to send a letter after each Human Rights Meeting to Russia’s Ministers of Foreign Affairs, informing him of relevant decisions and urging the authorities to comply with their obligations under international law and the ECHR to fully abide by the ECtHR’s judgments. So far, the Secretary General sent two such letters (see also here). Additionally, the Committee of Ministers is resolved to ‘keep up-to-date’ with the situation in Russia by ‘exploring ways to maintain close contact with civil society engaged in the execution process’. One such way is to actively use ‘its website and social media accounts to publish separate news items in Russian, [French and English], on the Committee’s decision to continue examining Russian cases’.
So how do the ECtHR and the Committee of Ministers deal with the Russian cases after its expulsion? Despite the exceptional circumstances, both institutions continue to process cases in a manner that is rather fairly comparable to the way in which they process cases of states that are a party to the ECHR. Considering Russia’s deafening silence, it is unlikely that their approach will contribute to finding a solution for the victims who have brought these cases. The conflicts between the applicants and Russia underlying the applications will therefore remain to exist. Still, it is important that the ECtHR and the Committee of Ministers continue to do their job, because, as remarked by Russian NGO representatives, this provides ‘vindication and moral support to the applicants and others concerned by the violations’ and reinforces ‘the authority of the Court and the credibility of the Convention system as a whole’.
