Monday, 27 September 2010

Pilot Flies Back to Moscow

Last week the European Court of Human Rights issued two decisions in cases concerning the non-enforcement of domestic court judgments (Nagovitsyn and Nalgiyev) and the excessive length of national court proceedings (Fakhretdinov and Others) in Russia. The human rights complaints of the five applicants (in total) were declared inadmissible, since the persons in question were first required to exhaust a new domestic remedy which provided for compensation in such cases.

These are the latest echos of the pilot judgment in the case of Burdov v. Russia (No. 2) of 2009 in which the Court addressed the systemic problem of non-enforcement of domestic court judgments in the Russian Federation. It held in that judgment that Russia had to set up national compensation procedures for people victims of such non-enforcement. See my earlier post on the case here. Russia let the deadline, which had been set by the Court, slip without taking visible action. This led to admonishments by the Council of Europe's Committee of Ministers in December of last year. In May of this year, however, a Compensation Act entered into force, which was also open to those whose claims were pending in Strasbourg. This new law covered both kinds of human rights violations: non-enforcement of judgments and court proceedings taking too long.

In the two most recent decisions the Court observed that the new national remedy was available, that Russian courts were required by the law to apply ECHR compensation criteria, and that it was designed to remedy the problems at stake, also flowing from the Burdov pilot judgment. Even though domestic practice was as yet almost entirely absent, the Court clearly gave the Russian authorities the benefit of the doubt. However, matters are not finished, since the Court also noted that in practice problems might arise, thus leaving the door slightly open for new future complaints. It did not, however, want to rule in abstracto on the probability of such failure of the new remedy. It held that "the Court's position may be subject to review in the future depending, in particular, on the domestic courts' capacity to establish consistent case-law under the Compensation Act in line with the Convention requirements. Furthermore, the burden of proof as to the effectiveness of the new remedy will lie in practice with the respondent Government." Thus, once in the future applicants (maybe even the very same persons again) would claim the remedy was innefective, it would be for the state to prove the contrary.

The practical result is that hundreds of applicants who had lodged claims after the Burdov judgment of January 2009 are now required to try the new remedy on the national level. A slight easing of the case-load on the Strasbourg docket for sure. But it is not certain what the future may hold for these applications. One may only hope that both the Committee of Ministers (in its offical capacity of supervising the implenmentation of ECtHR decisions) and the Court itself in future cases of people who have tried that mechanism, remain vigilant as to the effectiveness in practice of the compensation mechanism. In addition, the Committee of Ministers should make sure that Russia indeed also tackles the underlying problems. Otherwise, this latest "pilot" step is only a stay of execution for both Strasbourg and the applicants.

The decisions can be seen in light of a more general development in which the Court tries to put the subsidiarity principle (it is in the first place for states to solve human rights problems) into practice. Earlier this year, in a similar vein, applications of Cypriots reclaiming lost property were relegated back to the national level - in that case a compensation commission set up in Northern Cyprus.

1 comment:

Rhodri C. Williams said...

Hi Antoine,

Thanks for a very interesting post on the latest wrinkle in the pilot judgment saga.

The question I wanted to ask you and your readership is where you think the Court is going with the question of the fate of case backloads sitting in the queue when categories of claims are suddenly rendered inadmissible in light of a finding that a national remedy has now been created.

As you point out, there seems to be some ambiguity about whether it makes sense for the remaining Russian caseload now covered in theory by the new compensation law to be struck out, given the concerns expressed by the Court about whether the new remedy will be implemented:

"Thus, once in the future applicants (maybe even the very same persons again) would claim the remedy was innefective, it would be for the state to prove the contrary. The practical result is that hundreds of applicants who had lodged claims after the Burdov judgment of January 2009 are now required to try the new remedy on the national level. A slight easing of the case-load on the Strasbourg docket for sure. But it is not certain what the future may hold for these applications."

This issue also came up when I helped to draft the background report (Doc. 12106) that paved the way for PACE Resolution 1708 (2010) on restitution. The report concludes with a number of case studies, including Turkey, where the Court’s 2006 Icyer v. Turkey inadmissibility decision similarly required displaced persons in Turkey to seek compensation for the destruction of their villages through a new domestic mechanism.

In the course of the drafting, Turkish PACE delegates pointed out that the Icyer ruling resulted in a subsequent decision by the Committee of Ministers “to close examination of the issue of denial of access to property in Turkey in light of the Court’s above-mentioned 2006 admissibility decision and insurances given by the Turkish authorities on the availability of a wide range of remedies for situations falling outside [the scope of the compensation law]”.

Is this standard practice in the wake of pilot processes that conclude with inadmissibility decisions? It occurs to me that this seems not only problematic for the reasons you point out above (and surely even more so for impoverished and traumatized displaced persons than the average disgruntled Russian plaintiff) but also unnecessary.

As satisfying as it might be to draw a line through a whole category of cases, what would the functional difference be if the Court were simply to suspend action on them until there was an opportunity later on to ensure that implementation was living up to the Court’s standards? Is there some formal or procedural reason such an approach couldn’t be taken?

Putting the question differently, why does the Court rush to give up the leverage it has over the member states in question, when doing so does not confer any concrete advantage to them (do the officials in the Court have to devote time and energy to suspended cases that they would not have to with regard to struck out cases?) Given the notoriously long waiting time to get a claim back before the Court once it has been struck out, the finality that such strike-outs accord to prior inadmissibility decisions in pilot procedures seems dubious.

This is a serious question as, for instance, Human Rights Watch has alleged that the level and quality of implementation of the compensation law in Turkey slipped after the Icyer decision and other observers went on to claim that this state of affairs undercut the perception of the Court as an instrument of justice among potential claimants in Turkey.