The former general counsel of the dismantled OAO NK Yukos, Vasily Aleksanyan, became sick with AIDS and cancer the year after his 2006 imprisonment by Russia on politicized charges of fraud. Complaining of improper care, at the end of 2007 Aleksanyan won orders from the European Court of Human Rights (ECHR) to be transferred to a specialized hospital. Russia grudgingly transferred him two months later, denied him access to his family, and handcuffed him to his bed. At the end of 2008, the ECHR found Russia liable for inhuman and degrading treatment, rebuked it for endangering Aleksanyan’s life by delaying his transfer, and ordered Russia (perhaps too vaguely) to end Aleksanyan’s detention. Russia released the ailing attorney, who is now nearly blind, only on condition of a $1.8 million bail, which his lawyer believes to be the largest in Russia’s history. “Technically, Russia abided by the ruling,” says Human Rights Watch researcher Tanya Lokshina, “but what happened ethically is unacceptable.”
The Aleksanyan case is a metaphor for Russia’s current relationship with the Strasbourg, France–based European Court of Human Rights and its 47-nation supervising body, the Council of Europe. Russia usually complies with the letter of European human rights law—but not always with its spirit.
As the most powerful nation ever to accept the jurisdiction of the world’s most effective transnational court, Russia in the Council of Europe represents a natural experiment for the authority of international law. When Russia ratified the European Convention on Human Rights in 1996, experts like Mark Janis, a professor at the University of Connecticut School of Law, thought it inevitable that the court would either lower its standards or compromise its enforcement, because Russia’s human rights problems were intractable, and its leadership intransigent. It took years for ECHR petitions against Russia to mature, but cases are now coming to boil across a range of controversial issues, from Chechnya (where victims are winning awards almost weekly) to Yukos (whose former managers are pressing a $50 billion claim).
It’s increasingly clear that the European Court has not lowered its standards. Does that mean the ECHR is losing its impact? To a degree, yes. Russia has openly defied Europe over Moldovan dissidents. It also failed to investigate Chechen violence. Yet Russia always pays its ECHR damages awards, and human rights advocates fervently believe that Russia is a better place for being part of the system. As Vasily Aleksanyan knows well, inconsistent enforcement is better than none at all.
In at least one important area, Russia’s compliance has been praiseworthy. Inspired by a banker jailed in Magadan in an overcrowded cell infested with diseases and cockroaches, the case known as Kalashnikov v. Russia (2002) led rapidly to a large and lasting improvement in Russian prison conditions (although serious prison guard violence persists). “It was an immensely exciting case,” says Lokshina, “a promising sign.”
Compliance has been mixed on what is arguably Russia’s most fundamental rule of law problem: Its routine practice of letting domestic court judgments against government agencies go unpaid. Russia has made legislative efforts to address this problem. But embarrassingly, the man who put it on Strasbourg’s agenda (and the first man to beat Russia in the ECHR on any issue) has yet to see justice. After more than six years and 200 European Court judgments in similar cases, Russia failed to fully compensate a Chernobyl emergency worker named Anatoly Burdov, who suffered radiation poisoning and was awarded social benefits but failed to receive them. Ruling in January on a new petition by Burdov, the European Court, which usually sticks to individual remedies and refrains from direct orders, gave the nation six months to craft a systemic solution.
Russia is only overtly defiant when it comes to the hot spots on its borders—not only the rebellious province of Chechnya, but also the disputed enclaves of Transdniestria in Moldova and South Ossetia in Georgia.
In the case of Ilascu and others v. Russia and Moldova, the European Court made another rare outright order, and ended up looking foolish. In 2004 the court found that Russia exerted effective control over Transdniestria and ordered Russia to arrange the release of four imprisoned dissidents in the separatist Moldovan sliver. Russia denied that it exerted control, paid damages only after a long delay, and allowed two of the prisoners to serve out their sentences until 2007. Project director Philip Leach of the European Human Rights Advocacy Centre adjudges Ilascu as “possibly the most serious blot on the Russian copybook and . . . a major challenge to the reputation and potency of the European Court.” There were also diplomatic consequences. Vladimir Putin has angrily cited Ilascu as a reason for Russia holding up the court’s desperately needed caseload reform, which requires unanimous approval from member states.
Then there is the Caucasus, where Putin really gets touchy. Russia denies responsibility for the thousands of Chechen civilians who disappeared during its counterinsurgency campaigns. But as of early April, Russia had lost all 90 Chechen judgments decided by the European Court, more than 80 involving disappearances or extrajudicial executions. In the hard-hitting Musayev and others v. Russia (2007), the court concluded that “the astonishing ineffectiveness of the prosecuting authorities in this case could only be qualified as acquiescence in the events,” which were described elsewhere in the opinion as the “cold-blooded execution of more than 50 civilians.” In each case the ECHR ordered Russia to conduct an effective investigation—yet Russia has not completed one investigation. Nor has Russia improved the training and legal supervision of security forces.
Still, human rights lawyers regard the Chechen cases as victories. Russia has paid its damages without fail, about $50,000 per victim according to European Human Rights Advocacy Centre founders Leach and Bill Bowring. More fundamentally, the ECHR has documented and recognized the rape of Chechnya, even as other foreign monitors have either been barred, like the U.N. rapporteurs on torture and executions, or withdrawn due to security concerns. Despite everything, says Lokshina, “the European Court is the only truly effective human rights mechanism as far as Russia is concerned.”
The action on the ground has, of course, shifted to Georgia. Leach and Bowring have already filed dozens of ECHR claims against Russia by ethnic Georgians in South Ossetia. At the same time, Russia has reportedly helped ethnic Ossetians to file more than 3,000 ECHR complaints against Georgia. Cynics might call this a manipulation of the system, but perhaps it implies a certain respect for the court. At any rate, it’s certainly working within the system.
More than a decade after he warned that Russia would strain the system, Janis praises the ECHR for not developing a double standard. Regarding Russia’s mixed record of compliance, Janis is philosophical. In some ways, he says, the amazing thing is that a great power ever chooses to comply with international law. “We must be humble,” says Janis. “Unlike Russia, America has not been willing to accept the jurisdiction of an international court.”
If the U.S. Supreme Court cites a foreign source of law once in a blue moon, it is a source of handwringing on The Wall Street Journal’s editorial page. But according to a study by Cambridge University’s Anton Burkov, between August 2004 and December 2007 Russia’s Constitutional Court cited the European Convention on Human Rights in an astonishing 58 percent of its cases. It was almost a formality when in February 2007, barely a decade after Russia ratified the convention, the Constitutional Court held that the treaty forms part of the Russian legal system.
In their patriotic moments (which are frequent), Russian human rights advocates like to note that Russia’s progress compares favorably to Western Europe’s. It took Britain nearly fifty years from ratification to domesticate the European Convention. Even in the 1980s, France and Britain were among the system’s worst citizens.
In moments of despair, human rights activists say that Russia does not belong in Europe. But they, more than anyone, think that forcing Russia out would be a tragedy. “The key objective of staying in the system is to preserve the possibility of change,” says Lokshina. “Maybe in ten years time Russia will not be as bad as it is now,” echoes Burkov. “Maybe one day Russia will be a model.”