Whilst it is Russia’s decision to have no further connection to the International Criminal Court (ICC) which is attracting the most attention, two legal steps taken by Russia to distance the country from the European Court of Human Rights may be of greater practical significance.
Russia’s Constitution -drafted by pro-Western liberals during the political crisis of 1993 – specifically provides Russian citizens the right to bring cases to international courts like the European Court of Human Rights. Since this is a right set out in Russia’s Constitution, Russia is not in a position where it can simply quit the European Court of Human Rights, as some people wish it would do.
Recently however, as following the breakdown in relations between Russia and the West the trend of decisions in the European Court of Human Rights has increasingly gone against Russia, the Russians have started to edge away from it.
Firstly, the Russians have reaffirmed that the court of ultimate appeal in any case involving the Russian Constitution is not the European Court of Human Rights but Russia’s own Constitutional Court. Since the human rights provisions that the European Court of Human Rights enforces are set out in articles of Russia’s own Constitution, that decision essentially transfers ultimate power to decide Russian human rights questions from the European Court of Human Rights to Russia’s Constitutional Court.
The Russians are now taking the first step to give this affirmation practical effect. The Russian authorities have referred a decision of the European Court of Human Rights to award $1.86 billion to the former shareholders of Khodorkovsky’s company Yukos to the Russian Constitutional Court for review.
The Russians have made no secret of their strong disagreement with this decision. If as expected the Russian Constitutional Court rules that the decision is inconsistent with Russia’s Constitution then the decision will in effect have been quashed. This would be the first instance of a judgment of the European Court of Human Rights being quashed by the Russian Constitutional Court.
In parallel with this decision the Russians also took steps to signal their disagreement and to subvert a decision of the European Court of Human Rights which concerns the Russian liberal politician Alexey Navalny. In 2013 Navalny was convicted on theft and embezzlement charges by a court in Russia’s Kirov region in a case involving Kirovles, a Russian timber company owned by the local regional government. I researched the case at the time and concluded that Navalny would almost certainly have been convicted on the same facts in a British court.
The European Court of Human Rights took a different view, and made a decision that looked to me less like a reasoned judgment and more like a copy of one of Navalny’s own press releases which said that the judgment was not only wrong but that the case that had been brought against Navalny had been concocted for political reasons.
Following this decision of the European Court of Human Rights Russia’s Supreme Court (which is not to be confused with Russia’s Constitutional Court) has formally quashed Navalny’s conviction by the Kirov court. However instead of simply quashing the decision, to Navalny’s anger it has ordered that the case be retried, and has pointedly said that in the event that Navalny is reconvicted certain restrictions on his legal rights will be reimposed.
This is an elegant way of following the letter of the European Court of Human Rights’s decision, whilst going flatly against its spirit, and doing so in a way that makes clear the Supreme Court’s disagreement with its decision. Clearly the Supreme Court does not accept that the case against Navalny was a travesty. Had it done so it would simply have simply quashed the judgment. In light of this it is not surprising that Navalny is reported to be angry with the decision though whether the Russian authorities will feel that there is any point in continuing with the prosecution after so much time has passed is another matter.
With the world’s three strongest powers – the US, China and Russia – all now refusing to have anything to do with the International Criminal Court, and with several African countries led by South Africa now pulling out of it, the International Criminal Court is losing such importance as it once had.
The European Court of Human Rights has existed for far longer, and the quality of its jurisprudence has been much greater. Britain is however now committed to withdrawing from its jurisdiction, and Russia is now taking steps to guard its legal system from its interference.
Meanwhile, following the change in Russian and Chinese attitudes in the UN Security Council, the days when the Western powers were able to use the UN Security Council to set up ad hoc tribunals, like the one concerning Yugoslavia, has passed.
One way or the other the high water mark of attempts to impose a Western sponsored international justice seem to be passed.