On 13 September 2010 defence attorneys and legal experts who specialise in the submission of complaints by Russian citizens to the European Court of Human Rights (ECtHR) met for their now traditional monthly discussion in Moscow of what has been happening over the past months in Strasburg.

This is not just an exchange of information. Drawing on the complaints submitted to the Court by Russian citizens, as inhabitants of a member-state within the Council of Europe (CoE), defence lawyers try to establish how effectively the Court is currently working in Russian conditions. “What influence is it having on the judicial system?” they ask. “How is it affecting the application of the law in Russia and the drafting of national legislation?” There are always many defence attorneys from the International Protection Centre at this discussion: they have proved most successful in taking cases to Strasbourg.

Defence attorney Yelena Liptser opened the proceedings by describing her client Platon Lebedev’s second complaint to the Court (Lebedev is Mikhail Khodorkovsky’s co-accused). The ECtHR has recently accepted for consideration this complaint, submitted by Lebedev after sentence was pronounced in 2005 at the first Khodorkovsky-Lebedev trial. The complaint invokes Article 18 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter the Convention) and was specifically accepted for consideration in relation to that article, which details the permissible restrictions on the individual’s rights. To date, noted Liptser, the Court has only once issued a positive ruling on a complaint raised under Article 18. This was in the case of “Gusinsky v. Russia”.  In its May 2004 decision, we may recall, the ECtHR ruled that the treatment of the Russian media magnate had violated that article. His rights under Article 5 of the Convention (the right to liberty and security of person) had been denied, since his detention in custody was an abuse of power. The Russian authorities put Mr Gusinsky in prison not in the pursuit of justice, the Court decided, but in order to force him to sell his media business to Gazprom on unfavourable terms.

The Lebedev complaint is very important and could set a precedent, said Liptser. The ECtHR may issue its ruling after the conclusion of the on-going “second” Khodorkovsky-Lebedev trial. If that happens earlier judicial proceedings will be examined, for the first time, under Article 6 of the Convention (right to a fair trial), after a trial on new charges has already come to an end. In those circumstances, Liptser believes, there is a probability that the verdict at the first trial will be overturned as unlawful and unjust. Platon Lebedev’s term of imprisonment under that verdict is due to end on 3 July 2011.

To illustrate this situation Liptser gave an account of “Gladyshev v. Russia”, a case in which the ECtHR found there had been violations of Article 3 (prohibiting torture) and Article 6, and had ruled that the verdict at the plaintiff’s trial was therefore unlawful and unjust. (After being tortured Gladyshev incriminated himself and was sentenced to a 19-year term of imprisonment.) Following the Strasbourg ruling the Supreme Court of the Russian Federation overturned the verdict. It left Gladyshev in detention, however, on the grounds of the “grave charges” he faced. In the nearest future, said Liptser, a second complaint from Gladyshev will be submitted to the ECtHR, this time under Article 5.

Ms Liptser’s account of the Gladyshev case provoked a lively response from her audience. “I think that the Gladyshev case will become celebrated in the records of the European Court of Human Rights!” said Karinna Moskalenko. “By its decision the RF Supreme Court has now placed itself in violation of Article 5. Before you can appeal to Strasbourg you must exhaust all means of legal defence in Russia – and what higher authority could there be than the Supreme Court? Of course, a second complaint must be rapidly submitted to Strasbourg on Gladyshev’s behalf.”

There was then discussion of the way Russia has been implementing ECtHR rulings. “This has become a very important subject - the implementation of decisions. It is not only winning the case in Strasbourg that matters, but ensuring that the ruling is implemented in Russia,” said Karinna Moskalenko.

In particular those attending the Strasbourg Session focused on Russia’s response to ECtHR rulings concerning violations of Article 7 of the Convention (“no punishment without law”): this prohibits the retrospective criminalisation of an act or a failure to act. “No one may be convicted of committing any act or of failing to act”, reads Article 7, “if at the moment the action took place it was not a criminal offence under either national or international law”. (The example was given of the, by now, notorious assertion in the charges at the second Khodorkovsky-Lebedev trial that the co-accused had “created a vertically integrated company for the purpose of stealing oil”.)

If a positive decision is taken on such matters in Strasbourg then how should the CoE member-state respond? What actions should it take? Defence attorneys at the discussion were of the opinion that the investigation should be closed and any verdict annulled. If, however, the Court makes a positive ruling on a case concerning violation of Article 7 and, at the same time, takes a similar decision on Article 6, which requires the case to be re-examined, what then? How should an ECtHR decision be implemented in those circumstances? Thus far there is no experience of dealing with such a situation but, sooner or later, such problems could arise.

Anna Poloza, a defence attorney with the International Protection Centre, talked about the complaint submitted to the Court by Lev Ponomarev. He was held in custody for three days because he refused to obey the “lawful demands” of a policeman. In this instance Article 7 could be invoked, stressed Poloza, since Ponomarev was held in preventive detention so that he could not take part in the rally in defence of the Khimki Forest. He was arrested for an offence he had not committed since at that moment he was not in the location where the crime with which he was incriminated could take place.

Mention was made of the Vitaly Buntov case. He has accused the Russian authorities of torture during which all his fingernails and toenails were torn out. The complaint has been given priority by the ECtHR and Buntov’s wife and defence attorney were present at the Press Centre discussion.

A great deal was said about Russia’s judges and why they make unjust decisions. Formerly, participants commented, the opinion was widely held that when judges reached such decisions they were often acting on informal instructions, lit. “phone law”. Today, however, the use of “phone law” is less prevalent because judges already know what decision they are expected to reach. “Unfortunately, our judges are very dependent,” commented Moskalenko. “They can all too easily lose their position. For example, it is very easy to overwhelm a judge with so many cases that he or she cannot cope and then, criticising the judge on those very grounds, his or her right to serve as a judge can be removed.”

Defence attorney Maria Samorodkina raised the issue of Protocol 14 (which came  into force on 1 June 2010) and of the effect it had on those cases the ECtHR terms “pilot judgments”. The pilot judgment procedure was introduced by the Court in response to the enormous number of complaints from certain CoE member-states, resulting from “dysfunction under national law” within that country’s judicial and law-enforcement systems. As a result the structural problems leading to violations of the Convention are exposed within the framework of a single case and the measures necessary to correct the situation are inscribed in the Court’s judgment.

In early 2009 the ECtHR issued the first of its pilot judgments directed at Russia. This concerned the systematic failure to implement, or prolonged delays in the implementation of, decisions by national courts. After examining the “Burdov (No 2) v Russia” case the Court obliged the Russian authorities, within six months after its decision acquired legal force, to create effective domestic means of legal defence, so as to assure the rapid and adequate restoration of the violated rights not only of Burdov but of other plaintiffs from Russia who have cited similar violations of the Convention. The ECtHR also ruled that until 15 September 2010 it would not examine any more such cases from the Russian Federation whilst it waited for the authorities there to implement these corrective measures.

The 2010 Strasbourg Session concluded with congratulations to the International Protection Centre. It was officially registered on 12 September 1995 and has just celebrated its 15th anniversary. Those present wished it further success in defending the rights of Russian citizens.

We would like to remind all that the monthly Strasbourg Sessions at the Independent Press Centre are open to everyone with an interest in the activities of the ECtHR, whether they be defence attorneys, legal specialists, rights defenders, journalists or bloggers.  Feel free to come along and join in.