Pilot resolution. How complaints to the ECHR changed Russian legislation

If the state violates your rights and you cannot prove this in the country’s courts, you can contact the ECHR. If the problem is systemic—the state repeatedly violates the rights of citizens—then the ECHR may issue a “pilot ruling.” In it, the court will note the systematic nature of the error and give clear instructions on how to correct the violations.

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

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

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

ECHR and protests

Lashmankin and others against Russia

The case “Lashmankin and others v. Russia” involves several cases where the applicants tried to coordinate unrelated actions: a march in memory of the lawyer Markelov and journalist Baburova killed in 2009, an action against the law of Dima Yakovlev and an action in defense of the rights of sexual minorities. The Moscow authorities refused to approve the sites without alternative proposals. But there was no way to effectively appeal the refusal in the courts. The rallies still took place, but without approval from the authorities, the participants of the events were dispersed by the police.

According to Nikolai Zboroshenko, the resolution in this case can be considered “pre-pilot”. In it, the ECHR examined 15 complaints and analyzed various situations in which Russia violated the right to freedom of assembly. Thus, the Court concluded that the problem is systemic in nature, although it did not put forward requirements to eliminate it.

Influenced by the decision in this case, changes were made to the Code of Administrative Procedure: if the organizer appeals the refusal to approve an action, the court must consider the case before the date on which this action is planned. If the court finds the ban on the rally illegal, the organizer will still have time to hold it. In addition, the Supreme Court issued a ruling prohibiting the refusal to hold public events without providing an alternative site.

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

There is also a stable practice of the ECHR regarding arrests at protest rallies. Therefore, complaints filed by OVD-Info and Memorial lawyers can also be considered in a simplified manner.

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

Complaints against arrests at protests in the summer of 2019

“A pilot [ruling] may be made based on our complaints,” says lawyer Marina Agaltsova, “since there are many of them, which indicates the systemic nature of the problem, they [complaints] are already being communicated according to a simplified procedure.”

She adds that being a “pilot” has both pros and cons. One of the advantages is that in the “pilot” the ECHR gives clear instructions to the state - what it must change in order to correct the systemic violation of the rights of citizens. That is, it prescribes specific actions and monitors their implementation, which creates additional pressure for the state. Whereas in a regular ECHR decision, the court only issues recommendations that the country may not implement.

The disadvantage of the “pilot” is that while the requirements of the ECHR are being fulfilled, the court itself suspends consideration of similar cases originating from this country. If the country complies with the instructions, then the complaints are not considered further. The 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 “pilot” decision, then the consideration of complaints will be resumed. Since this entire procedure will take some time, the review period will increase.

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