Wednesday, 21 January 2009

Pilot Judgment on Russian Non-Enforcement

Burdov returns - that could be the motto of last week's Court judgment in Burdov v. Russia (No. 2). Anatolyi Burdov is an applicant that cannot fail to arouse sympathy. In the 1980s he helped in the emergency operations after the Chernobyl nuclear diaster and was exposed to radioactive emissions. As a result, he was entitled to social benefits, but the authorities failed to pay those fully or in time, even though domestic courts had ordered the money to be paid. On that account he won his case before the European Court of Human Rights - the first ever judgment of the Court in a case against Russia (2002). Now, more than six years and 200 judgments on the non- or late enforcement of domestic judgments later, the Court has symbolically chosen this second case about the same applicant and about comparable issues of non- or late enforcement to be a pilot judgment (for more on pilot judgments, see my earlier post here). On top of finding yet again violations of Articles 6 and 1 Protocol 1 ECHR, it also found a violation of Article 13 (the right to an effective remedy). This is interesting, since the applicant had not complained about that latter aspect, but the Court took it up of its own motion and used it to come to a possible solution. Under Article 46 ECHR it indicated the following on what Russia is now required to do:

In accordance with Article 46 of the Convention, the Court’s findings in paragraphs 101-117 above clearly require the setting up of an effective domestic remedy or a combination of remedies allowing adequate and sufficient redress to be granted to large numbers of people affected by the violations in question. It appears highly unlikely in the light of the Court’s conclusions that such an effective remedy can be set up without changing the domestic legislation on certain specific points.
139. In this respect, the Court attaches considerable importance to the findings of the Russian Constitutional Court, which has invited Parliament since January 2001 to set up a procedure for compensation of damage arising, inter alia, from excessively lengthy proceedings. Of particular importance is the finding made by reference notably to Article 6 of the Convention that such compensation should not be conditional on the establishment of fault. The Court also welcomes the legislative initiative recently taken by the Supreme Court in this area and notes the bills tabled in Parliament on 30 September 2008 with a view to introducing remedies in respect on the violations in question. The Court notes with interest the reference to the Convention standards as a basis for determining compensation for damage, and that the average amounts of compensation for delayed enforcement were calculated by reference to the Court’s case-law.
140. It is not, however, for the Court to assess the overall adequacy of the ongoing reform, nor to specify what would be the most appropriate way to set up the necessary domestic remedies. The State may either amend the existing range of legal remedies or add new remedies to secure genuinely effective redress for the violation of the Convention rights concerned. It is also for the State to ensure, under the supervision of the Committee of Ministers, that a new remedy or a combination of remedies respects both in theory and in practice the requirements of the Convention as set out in the present judgment. In so doing, the authorities may also have due regard to the Committee of Ministers’ Recommendation Rec(2004)6 to member states on the improvement of domestic remedies.
141. The Court accordingly concludes that the respondent State must introduce a remedy which secures genuinely effective redress for the violations of the Convention on account of the State authorities’ prolonged failure to comply with judicial decisions delivered against the State or its entities. Such a remedy must conform to the Convention principles as laid down notably in the present judgment and be available within six months from the date on which the present judgment becomes final.
Note specifically the precise time limit set by the court (six months)! In addition, the Court decided for one year to adjourn proceedings for the period of one year in all new Russian applications on the same issue of non- or unreasonably late enforcement. Finally for all the cases already lodged with the Court and communicated to Russia, the country should provide redress to those applicants within one year as well.

The approach of the Court seems particularly efficient and also as just as possible to the victims involved. However, it will also be a major test in the troubled relations between Russian and the Strasbourg institutions. To put it mildly, it is no secret that Russia is not very happy with the Court's judgments in the many Chechen cases. No surprise then that the Court has found a (somewhat) less sensitive area to find a systemic problem. Nevertheless, the compliance of Russia with this judgment within the time limits indicated will be a real litmus test of its will to cooperate with the ECHR machinery. Let us hope for the best. It is now up to the Committee of Ministers of the Council of Europe to supervise the follow-up closely, both for the sake of the victims and the effectiveness of the Court itself.

The start of the new year seems anyhow to be a period in which the Court is trying to 'clean up' its roll of cases, since it also noted - yet again - that a structural problem existed in relation to Romanian restitution laws (this time restitution laws concerning nationalised immovable property sold by the state to third parties who had purchased the properties in good faith) in the case of Katz v. Romania. Yet another example, where hundreds of similar cases have been decided or are pending. It seems that the Court, at least partly out of a strategy to remain standing amidst the flood of applications, is increasingly pointing out systemic problems and even, as in Burdov, resorting to the pilot case procedure. See also my post in December here on earlier systemic problems in Romanian restitution law.

4 comments:

Anonymous said...

what would happen if Russia refuses to comply (it ignored its constitutional court...), or continue with its previous practices...

Vitalie ZAMA said...

What happened with respect to the case Ilascu and others against Russia and Moldova, nothing.

Sorry for idea, but it appears to me that such questions begins to have rethorical characteristic.

Anonymous said...

Given Russia's rather incooperative attitute towards the Court in the past, doesn't a judgment like Burdov threaten to undermine the further development of the pilot judgment procedure?

Anonymous said...

I agree that Burdov is a "real" pilot judgment procedure - it identifies a systemic problem, calls for general measures and adjourns all pending similar cases.

BUT on the whole typology in the area of pilot judgments seems rather blurry to me... Don't all the so-called variants of the pilot-judgment procedure (e.g. Lukenda ./. Slovenia, Xenides-Arestis ./. Turkey, Driza ./. Albania, Scordino ./. Italy, Sürmeli ./. Germany, and I could continue) make it increasingly difficult to foresee under what circumstances the Court decides to initiate a pilot-judgment procedure? It seems to me that even within the Court there are different views as to the preconditions and procedural steps necessary for the PJP... In the interest of legal certainty they'd better sort that out sooner rather than later...