Pilot resolution. How complaints to the ECHR changed Russian legislation

Russia and Turkey share the first place in terms of the number of complaints to the European Court of Human Rights. The total amount of compensation that the court assigns to the Russians is more than 10 million euros per year. But monetary payments are not the only thing that the ECHR may require from a country to restore violated rights. OVD-Info tells how complaints to the European Court can change Russian legislation.

If the state violates your rights and it is impossible to prove it in the courts of the country, you can apply to the ECtHR. If the problem is systemic - the state repeatedly violates the rights of citizens, then the ECHR can issue a "pilot judgment". In it, the court will note the systematic nature of the error and give clear instructions for correcting violations.

In this case, consideration of complaints will be suspended until the country corrects the legislation and law enforcement practice on the identified problem. This is one of the legal and effective ways to influence Russian legislation.

“The state may not comply with the [ECtHR] decision,” says Marina Agaltsova, a lawyer for the Memorial Human Rights Center. “But then the ECtHR reserves [the right] to resume the suspended consideration of repetitive applications.”

Thanks to pilot regulations in Russia, a number of problems have already been solved. Lawyers from OVD-Info and Memorial Human Rights Center continue the campaign, within the framework of which they hope to influence the situation with freedom of assembly.

ECtHR and protests

Lashmankin and others v. Russia

In the Lashmankin and Others v. Russia case, there are several cases where the applicants tried to coordinate unrelated actions: a march in memory of lawyer Markelov and journalist Baburova killed in 2009, an action against Dima Yakovlev’s law, and an action in defense of the rights of sexual minorities. The Moscow authorities refused to approve the sites without alternative proposals. And it was not possible to effectively appeal the refusal in the courts. The actions took place anyway, but without the consent of the authorities, the participants of the events were dispersed by the police.

According to Mykola Zboroshenko, the decision in this case can be considered "pre-pilot". In it, the ECtHR considered 15 complaints and analyzed different situations in which Russia violated the right to freedom of assembly. Thus, the Court concluded that the problem was of a systemic nature, although it did not put forward requirements for its elimination.

Under the influence of the decision in this case, changes were made to the Code of Administrative Procedure: if the organizer appeals against the refusal to approve the action, the court must consider the case before the date on which this action is scheduled. If the court recognizes the prohibition of the action as illegal, the organizer will still have time to hold it. In addition, the Supreme Court ruled that it is prohibited to refuse to hold public events without providing an alternative venue.

“In all these complaints, issues were raised that the ECtHR had repeatedly considered, which were the object of close attention of the court,” explains lawyer Nikolai Zboroshenko. “The same thing is happening now with complaints about freedom of assembly: there are a lot of them, they are of the same type. After the decision on Lashmankin’s complaint, they are often considered in a simplified manner.”

The European Court of Human Rights has already established a stable practice of arrests at protest actions. Therefore, the complaints filed by the lawyers of OVD-Info and Memorial can also be considered in a simplified manner.

“Something in law enforcement practice has already begun to shift, but Russia is not taking any measures on the most acute problems. Our state does not follow the principle of the presumption of a peaceful assembly, that is, it does not create conditions for their holding,” Zboroshenko believes.

Complaints against detentions at protests in the summer of 2019

“Based on our complaints, a pilot [decision] can be issued,” says lawyer Marina Agaltsova, “since there are a lot of them, which indicates the systemic nature of the problem, they [complaints] are already being communicated using a simplified procedure.”

She adds that the "pilot" has both pluses and minuses. One of the advantages is that in the "pilot" the ECtHR gives clear instructions to the state - what it should change in order to correct the systemic violation of the rights of citizens. That is, he prescribes specific actions and monitors their implementation, which creates additional pressure on the state. Whereas in the usual decision of the ECtHR, the court issues only recommendations that the country may not comply with.

The downside of the “pilot” is that for the duration of the fulfillment of the requirements of the ECtHR, the court itself suspends consideration of similar cases coming from this country. If the country complies with the instructions, then the complaints are not considered further. Applicants will not receive compensation for their cases, but the legislation will be changed for the better. If the country does not comply with the decision of the “pilot”, then the consideration of complaints will be resumed. Since this whole procedure will take some time, the consideration period will also increase.

Agaltsova explains that if a pilot decision is adopted on arrests at summer protests in Russia, then Russia will have to change the legislation on rallies. It is also possible that it will be possible to change for the better the administrative practice of detaining protesters.

Lawyers from OVD-Info and Memorial have created a generator of complaints to the ECtHR in order to simplify and automate the work. During the campaign, they will send about a thousand complaints to the European Court from those detained during peaceful assemblies in the summer of 2019. First of all, these are participants of summer actions in Moscow.

“We are trying to change the legislation in the future. We have no illusions, but by the publicity of the campaign and the mass nature of the complaints, we expect to show the European Court the scale of the problem. This may become a reason for the court to demand that Russia take specific measures,” says Nikolai Zboroshenko.

ECtHR and systemic violations of citizens' rights

Burdov v. Russia

On October 1, 1986, Anatoly Burdov was called upon to eliminate the consequences at the Chernobyl nuclear power plant, where he worked until January 1987. Four years later, the medical commission found that Burdov's health had deteriorated greatly. The reason is his work as a liquidator and a strong dose of radiation exposure. The court of the city of Shakhty awarded compensation in the amount of more than 23 million rubles. But her Burdov was not paid.

In 1997, Burdov filed a lawsuit against the Department of Social Protection of Citizens. The court again decided in his favor and ruled that compensation should be paid, and fines should be charged on top for non-payment on time. But Burdov was again not paid compensation. After that, he filed lawsuits against the Office several more times, won cases, but this did not bring results. The department refused to pay the money, citing a lack of funds in the budget. Then the man turned to the ECtHR.

First of all, Burdov complained that the decisions of the Russian courts were not implemented. In 2002, the ECtHR ruled in his favor. But the matter did not end there, Burdov was faced with the fact that the amount of compensation was incorrectly indexed, that is, the problem with the payment was never resolved. And he again had to apply to the ECtHR.

“For example, against Russia there is a “pilot” of “Burdov against Russia 2” [2009]. When Russia first started working on it, it did not comply well with the requirements of the ECtHR. Then the ECHR decided that Russia was not fulfilling the “pilot” and had no choice but to consider all other complaints,” says Agaltsova.

The ECtHR saw this as a systemic error and issued a pilot judgment. As a result, the State Duma adopted a law on compensation for the delay in the consideration of cases and the long non-execution of court decisions.

Ananiev and others v. Russia

Sergei Ananiev ended up in a pre-trial detention center in 2007. In his cell in the pre-trial detention center there were 13 beds, and people - from 15 to 21. The cell itself was about 15 square meters, that is, less than one square meter per person. And the place was occupied by beds, personal belongings. It's like the subway at rush hour, only you live there 24/7.

Following a complaint by Ananiev and others, the ECtHR recognized such content as a systemic problem. Russia was obliged to solve it. After that, the reform of the penitentiary system began and the conditions of detention in the pre-trial detention center improved. For example, the number of inmates in one cell has decreased, there are enough beds, and the number of places per person has increased. All problems, however, have not yet been resolved.

Karelin vs. Russia

Lawyer Karelin was detained on March 4, 2012 by the police and filed a report against him under Article 20.1 of the Code of Administrative Offenses (Petty hooliganism) for “swearing obscenely in the presence of other people and, thus, violated public order.” Karelin was fined 500 rubles.

There must be two parties in a lawsuit and a judge who analyzes the evidence, listens to the parties and makes a decision as an independent third party. But in cases of administrative offenses, there is no prosecution. This means that its functions are taken over by the court. Therefore, he makes judgments with an accusatory bias. The ECHR proposes to ensure the participation of the prosecution in the process. So far, no action has been taken.

Aslakhanova and Others v. Russia

During the Second Chechen War, many people went missing. Their fate is still not known, and investigations are not ongoing. Five families filed complaints about the disappearance of eight men between 2002 and 2004 in the city of Grozny and the Grozny region. All of them were detained in their homes by the military and were taken away in an unknown direction.

The applicants are relatives of the missing. The cases were repeatedly terminated by the local prosecutor's office, they referred to the fact that it was impossible to establish the circumstances of their disappearance and whereabouts.

In addition to compensation, the ECHR considered that Article 2 of the Convention was violated by the state (the right to life), and given the severity of the consequences and the number of applicants, it is not fair to terminate the investigation only on the basis of the statute of limitations. In total, the court issued 120 decisions on cases of kidnapping in the North Caucasus.

The ECHR decided to resume investigations into these cases, create a body that would search for information on missing persons in connection with the military conflict and abducted by law enforcement agencies, as well as find and punish those responsible for the torture and death of these people. As a result, the cases were reopened and the investigative actions continued.