The Applicability of the ECHR in Contested Territories; Two Other ECHR Cases Against Russia

Earlier this week the European Court of Human Rights decided Sandu and Others v. the Republic of Moldova and Russia, nos. 21034/05 etc, the latest in its Ilascu line of cases (see here and here for more background). As in its previous case law, the Court in Sandu found that both Moldova and Russia exercised jurisdiction in the sense of Article 1 ECHR over the contested separatist territory of Transdniestria, the former on the basis of sovereign title, and the latter on the basis of its control over the area. In this case, which concerned property rights, the Court found Moldova to have discharged its positive obligations towards the applicants, and Russia not to have done so, thus incurring responsibility for violating the Convention. Like in its previous case law, it remains unclear whether the Court is attributing to Russia the conduct of Transdniestrian separatist authorities, or whether Russia is responsible for its own conduct of failing to exercise influence over these authorities so as to protect the applicants’ rights.

Coincidentally, Tatjana Papic and I have recently posted on SSRN the draft of an article on the applicability of the ECHR in contested territories, forthcoming in the ICLQ , in which we provide a critique of the Court’s Ilascu jurisprudence. The abstract is below, and any comments are welcome:

This article examines the applicability of the European Convention for Human Rights (ECHR) when a State loses control over parts of its territory. Such situations have increasingly arisen in cases before the European Court of Human Rights. For instance, the Court currently has on its docket an interstate case between Georgia and Russia, three interstate cases between Ukraine and Russia, and thousands of individual applications which concern either Crimea or Eastern Ukraine. The article argues that the jurisprudence of the European Court, which insists on residual positive obligations based in sovereign title over territory, is problematic and needs to be rethought. The Court’s current approach is not only likely to provoke backlash, since it requires it to decide politically explosive questions of sovereign title, but does so for very little practical benefit for the protection of human rights. The article therefore explores more preferable alternatives.

Also this week the Court rendered two unrelated but very important judgments against Russia. First, regarding the 2006 killing of journalist Anna Politkovskaya, the Court found Russia responsible under Article 2 ECHR for failing to conduct a fully effective investigation into the killing, specifically because Russian authorities did not explore all feasible lines of investigation into the person or persons who contracted Politkovskaya’s assassination (Mazepa and Others v. Russia, no. 15086/07).

Second, the Court found Russia responsible for the violation of several human rights of three members of the Pussy Riot band, who were arrested, convicted and sentenced to two years of imprisonment for (very briefly) performing their song Punk Prayer – Virgin Mary, Drive Putin Away in the Christ the Saviour Cathedral in Moscow (Mariya Alekhina and Others v. Russia, no. 38004/12). Pussy Riot were of course very much in the news last weekend, after their pitch invasion at the World Cup final in Moscow.

The most interesting part of the Pussy Riot judgment is the Article 10 analysis; the Court is not content with saying simply and easily that the sentence of imprisonment imposed on the applicants was disproportionate, but engages in line-drawing between hate speech and offensive speech, which is particularly relevant because the domestic crime that the applicants were convicted of incorporated a hatred element. The judgment also has a rather glorious appendix with several Pussy Riot songs (oh so very du jour, and reproduced below for entertainment value, together with the song at issue in the case itself).

Punk Prayer – Virgin Mary, Drive Putin Away

“Virgin Mary, Mother of God, drive Putin away

Drive Putin away, drive Putin away

Black robe, golden epaulettes

Parishioners crawl to bow

The phantom of liberty is in heaven

Gay pride sent to Siberia in chains

The head of the KGB, their chief saint,

Leads protesters to prison under escort

So as not to offend His Holiness

Women must give birth and love

Shit, shit, holy shit!

Shit, shit, holy shit!

Virgin Mary, Mother of God, become a feminist

Become a feminist, become a feminist

The Church’s praise of rotten dictators

The cross-bearer procession of black limousines

A teacher-preacher will meet you at school

Go to class – bring him cash!

Patriarch Gundyaev believes in Putin

Bitch, better believe in God instead

The girdle of the Virgin can’t replace rallies

Mary, Mother of God, is with us in protest!

Virgin Mary, Mother of God, drive Putin away

Drive Putin away, drive Putin away.”

Release the Cobblestones

“Egyptian air is good for your lungs

Turn Red Square into Tahrir

Spend the day with wild strong women

Look for a wrench on your balcony, release the cobblestones

It’s never too late to become a mistress

Batons at the ready, screaming louder and louder

Warm up your arm and leg muscles

The cop is licking you between your legs

Toilet bowls have been polished, chicks are in plainclothes

Zizek’s ghosts have been flushed down the drain

Khimki forest has been cleaned up, Chirikova got a ‘no pass’ to vote,

Feminists are sent on maternity leave.”

Kropotkin Vodka

“Occupy the city with a frying pan

Go out with a vacuum, get off on it

Police battalions seduce virgins

Naked cops rejoice at the new reforms.”

Death to Prison, Freedom to Protest

“The joyful science of occupying squares

The will to power, without these damn leaders

Direct action – the future of mankind!

LGBT, feminists, defend the nation!

Death to prison, freedom to protest

Make the cops serve freedom.

Protests bring on good weather

Occupy the square, carry out a peaceful takeover

Take away the guns from all the cops

Death to prison, freedom to protest

Fill the city, all the squares and streets.

There are many in Russia, put aside oysters

Open all the doors, take off the epaulettes

Taste the smell of freedom together with us

Death to prison, freedom to protest.”

Putin Wet Himself

“A group of insurgents moves toward the Kremlin

Windows shatter at FSB headquarters

Bitches piss themselves behind red walls

Pussy Riot is here to abort the system

An attack at dawn? Don’t mind if I do

When we are whipped for our freedom

The Mother of God will learn how to fight

Mary Magdalene the feminist will join the demonstration.

Riot in Russia – the charm of protest

Riot in Russia – Putin wet himself

Riot in Russia – we exist

Riot in Russia – riot, riot

Take to the streets

Occupy Red Square.

Show them your freedom

A citizen’s anger

Dissatisfied with the culture of male hysteria

Gangster management devours the brain

Orthodox religion is a hard penis

Patients get a prescription of conformity

The regime is going to censor the dream

The time has come for a subversive clash

The pack of bitches from the sexist regime

Begs forgiveness from the phalanx of feminists

Riot in Russia – the charm of protest

Riot in Russia – Putin wet himself

Riot in Russia – we exist

Riot in Russia – riot, riot

Take to the streets

Occupy Red Square.

Show them your freedom

A citizen’s rage.”