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As long as the judicial system of the Russian Federation does not become more independent, doubts about its effectiveness remain

Kommersant, 25/02/2016

During the meeting of the President of the Russian Federation with the Russian Human Rights Council in October of last year, a few problems with regards to the functioning of the Russian judiciary were raised. President Vladimir Putin expressed readiness to examine these questions and, if necessary, to amend the law to this effect. From our point of view improvements of the Russian judiciary should be a daily agenda in Russia. We have worked with Russia over the last 17 years and witnessed several waves of important judicial reforms. However, long-standing problems remain.

One of the first major steps undertaken by Russia to integrate into Europe’s legal space after the disintegration of the Soviet Union was to become a member of the Council of Europe. This happened exactly twenty years ago, on 28 February 1996, and was widely seen as demonstrating the determination of the Russian Federation to become a state upholding human rights, the rule of law, and democracy.

The reforms in the judiciary have been an essential part of this process. They have been extensive and have included legislation of primary importance such as laws reforming the criminal and civil codes. In addition, legislative improvements have been undertaken following judgments of the European Court of Human Rights, for example to facilitate individuals’ access to justice, to abide by the principle of legal certainty, as well as to reduce remand detention and to improve detention conditions. More recently, the Russian Ministry of Justice and the Council of Europe teamed up to improve the system of free legal aid available to the most vulnerable social groups, such as people with disabilities and children deprived of parental care.

These positive developments, however, are tainted by less promising trends which elicit concerns about Russia’s ability to complete the transition towards an accessible, effective, transparent and credible justice system. We have identified four main problems: issues related to non-enforcement of court decisions, obstacles to the international system of human rights protection, insufficient judicial independence and excessive prosecutorial powers.

The delay in or absence of implementing decisions by international and national courts is one of the most recurrent injustices occurring in Russia. From 2010 to 2015, the European Court of Human Rights condemned Russia 72 times for the non-enforcement of national courts’ judgments, a record-high number equaling almost 20 percent of all such violations found in the 47 member states of the Council of Europe.

A tendency to "cherry-pick" judgments of the European Court, depending on their acceptance by political authorities, can also be observed. As an example, we would like to highlight the cases concerning actions of security forces in the North Caucasus. Over the last decade, more than 200 judgments of the European Court have found the Russian Federation responsible for serious infringements of the European Convention on Human Rights. Although monetary compensation has generally been awarded to the victims of these violations, Russia has not yet fully implemented these judgments. Most notably, it is still imperative to establish accountability for the most serious crimes, such as torture and kidnapping, as a necessary step to bring justice to the victims and their relatives, deter new violations, and to increase public trust in the justice system.  

The adoption in December 2015 of a law which grants the Russian Constitutional Court the right to determine whether or not to implement decisions of international courts has sparked a discussion both at the national and international level about its possible impact on the execution of international judgments. This kind of challenge is not unique to Russia. In Germany, for example, the European Convention on Human Rights has a lower status than the German Constitution, which goes further than the Convention in protecting certain rights. However, the German Federal Constitutional Court has played a leading role over the past decades in ensuring that the European Convention is duly considered in the interpretation of national laws. Time will tell whether this new Russian law will become a catalyst or a barrier for those who seek justice through an international court.

What is certain, though, is that unless the Russian judiciary becomes more independent, concerns will not be assuaged. The current procedures and criteria to appoint, dismiss and sanction judges still provide insufficient guarantees for objective and fair proceedings and judges remain exposed to pressure from powerful political and economic interests.  

The lack of independence is further compounded by a criminal justice system which favours the prosecutorial position, contradicting the principle of equality of arms. Defence rights are also weakened by harassment and other forms of pressure on lawyers, who all too often face hurdles in assisting their clients.

These shortcomings are huge obstacles undermining people’s ability to obtain justice. However, they are not insurmountable. With clear political will, Russia’s legislators and policy-makers can preserve the positive achievements and build on them to further strengthen judicial independence, impartiality and effectiveness.

In particular, they should amend laws and practice so as to ensure that judges become more impervious to pressure coming from within the judiciary or from external actors. Improving the procedures and criteria to appoint, sanction and dismiss judges, and reforming the system of appointment of court presidents and their powers will be important steps in this regard.

The judges should be continuously trained on the correct application of the case-law of the European Court of Human Rights so that national courts’ judgments better reflect Strasbourg jurisprudence. This would help challenge laws and practices which may lead to human rights violations, for instance in areas engaging freedoms of speech, association and assembly.

In addition to achieving the independence and impartiality of judges, future reform efforts in the judiciary should focus on strengthening the right to a fair trial and on ensuring genuine adversarial proceedings, respect for the presumption of innocence and for procedural rights in civil and criminal litigation. A reform of the Prosecutor’s Office should also be undertaken to strengthen its independence and impartiality, and the ability to combat impunity and ill-treatment.

The Russian authorities also have to establish accountability for past abuses, including those committed in the North Caucasus. The victims of crimes and their relatives must receive adequate redress and witnesses should be provided with the necessary protection. This is a long-overdue due step Russia has to take to come to terms with its recent past so as to lay the foundations for a truly peaceful, cohesive and pluralist democratic society.

A well-functioning and effective judicial system is essential for ensuring equal treatment, sanctioning government abuses and preventing arbitrariness, including unlawful behavior by the police and other law-enforcement bodies. It forms a bed-rock for preserving democracy.  

Determination is again required from Russia’s political leaders to ensure that the achievements reached so far in reforming the judiciary will not be wrecked but used as building blocks for a stronger democratic society. This is not just a matter of principle, but a necessary measure to improve the lives of millions of people living in Russia.

Nils Muižnieks (current Council of Europe Commissioner for Human Rights)

Thomas Hammarberg (former Commissioner, 2006 to 2012)

Álvaro Gil-Robles (former Commissioner, 1999-2006)