Russia’s relationship with the Council of Europe and the European Court of Human Rights has always been thorny. This month’s battle between the Council of Europe and Russia, however, has the potential to encourage Moscow to permanently part ways with Strasbourg. Doing so would have significant ramifications. The European Court of Human Rights, its allies in Western Europe and the Russian citizens who rely on the court to air their grievances and have their abuses documented would lose a powerful tool for pressuring Russia for human rights reform.
Over the past two decades, Russia has repeatedly alleged that the court and the political institutions that support it have an anti-Russian bias. Meanwhile, the court blames Russia for bogging it down with the disastrously high number of repeat petitions and cases that Russian citizens bring to Strasbourg each year. And no wonder: the court currently is dealing with over 20,000 petitions against Russia alone.
Neither Russia’s large population nor its level of human rights abuses, however, neatly maps onto the number of petitions or cases brought to the European Court of Human Rights. Instead, as I argue in my recent book, to understand the flood of Russian petitions at the court, as well as the rocky relationship between Moscow and Strasbourg, we must consider Russia’s pattern of compliance with the court’s rulings.
After the European Court of Human Rights hands down adverse judgments the Council of Europe’s Committee of Ministers typically asks states to engage in four types of reparations: financial compensation to the victims; symbolic measures (e.g., apologies and memorializing victims); retrials and holding perpetrators to account; and general measures that change states’ human rights policies and procedures. Countries with few or weak democratic institutions and a general suspicion of the European Court of Human Rights — countries, such as Russia — tend to engage in what I term à la carte compliance. They pick and choose among the different components of a ruling, complying with the low-hanging fruit and disregarding the rest.
Russia has, in fact, done comparatively well with respect to financial reparations, paying over 11 million euros in compensation to victims in 2012 and 2013. Similarly, Russian courts, up to and including the Supreme Court, have been working to take the European Court of Human Rights’s jurisprudence into account in their own rulings. Russia’s emphasis on financial reparations and attention to the court’s jurisprudence has provided some recourse for individual victims, as well as a larger impetus for human rights reform.
Of course, Russia’s compliance is far from perfect, particularly with respect to general measures. Compliance with these measures is difficult, both politically and logistically, because they often entail engaging multiple domestic actors, such as judges, legislators/parliamentarians, civil society actors and executives. Moreover, compliance with these general measures requires countries to cede some of their human rights policymaking authority. The implications of noncompliance with general measures, however, are manifold. Victims — and potential victims — will not be afforded remedy for the violations they suffer, nor will they enjoy changes in states’ practices and policies that could better protect human rights. For the court, noncompliance means that it sees a deluge of petitions alleging the same abuses, time and again, as it has with Russia.
Even though Russia’s compliance record with respect to general measures has been subpar, Russian and Western human rights activists, as well as the Council of Europe, have welcomed Moscow’s payment of compensation to victims and its efforts to clarify the role of the European Court of Human Rights’s jurisprudence in its domestic legal system. Now, though, that progress is at risk of being overturned. In light of their recent suspension from voting in the Parliamentary Assembly and the inter-state case brought against them by Ukraine, the Russian delegation to the Council of Europe has made a very credible threat to withdraw from the court.
Russia’s potential withdrawal from the Council of European and the European Court of Human Rights means that Russian citizens will lose an avenue for agitating for their rights, a forum for documenting human rights abuse, and a lever that can at least force conversations about human rights into the public sphere. The European Court of Human Rights and the Western European democracies that support it will similarly lose an important tool for pressuring Russia for human rights policy change. It is incumbent upon the Council of Europe to find a balance between censuring Russia and keeping it within the ranks of the council and most importantly, the court.