The Human Rights Backlash in Criminal Justice: The Case of Russia’s Exit from the European Convention on Human Rights

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Large-scale conflicts such as the Russia – Ukraine crisis transform societal structures of the regions involved. Much analysis has already focused on changes in Russian politics, economy, culture, etc. However, some gradual and heterogeneous reconfigurations in Russia’s legal system can easily be overlooked, especially if these do not immediately produce significant political events attracting scholars’ attention.

The text below highlights the first consequences of Russia’s withdrawal from the European Convention on Human Rights (ECHR, or “the Convention”), which had been influencing the Russian legal landscape for more than 20 years. I am going to outline several preliminary findings of the research in progress, mostly concentrating on the human rights erosion within the Russian criminal justice system (RCJS). This post draws on semi-structured expert interviews with 6 Russian criminal lawyers having vast experience – ranging from 5 to 25 years – in mobilizing the Convention. Four of them serve as defence lawyers in courts on a daily basis. Additionally, 117 decisions of Russian districts courts, courts of appeal, and cassation courts rendered from February 28, 2023 to June 28, 2023 have been analyzed to track any changes in a mode of legal argumentation due to the ECHR’s denunciation.

The Basic Chronology

Resembling the case of Greece’s suspension from the Council of Europe (CoE) in 1969 due to flagrant human rights violations by the junta regime, one of numerous political reactions to the armed conflict in Ukraine was a rapid cessation of Russia’s membership of the CoE on March 16, 2022. The day before this decision, Russian Foreign Minister Sergei Lavrov, on behalf of Russian President Vladimir Putin, had informed the Secretary General of his state’s withdrawal from the CoE and intentions to denounce the Convention.

Eventually, after additional deliberations, the European Court of Human Rights (ECtHR) agreed to deal with applications against Russia as to ECHR breaches that had taken place up until September 16, 2022. However, pursuant to new laws No. 180 and No. 183 enacted in Russia on June 11, 2022, Russia stopped enforcing the ECtHR’s judgements (paying just satisfaction, reopening national criminal cases, etc.) delivered after March 15, 2022. As a result of these events, Russian citizens and human rights activists have been deprived of their ability to apply to the ECtHR and have its decisions enforced.

On January 17, 2023 the Russian President introduced a bill to the State Duma, proposing denunciation of the CoE’s Conventions (including the ECHR and 10 corresponding protocols). As was expected, parliamentarians’ unanimous support for the bill allowed Vladimir Putin to sign the newly adopted law No. 43 shortly thereafter on February 28, 2023. Whether this is a mere coincidence or not, it was the anniversary of the day when 27 years ago (on February 28, 1996) Russia had joined the CoE as a member state.

Simplification of the Russian Criminal Justice System Due to the Convention’s Denunciation

Serving as Putin’s representative in the State Duma and arguing for denunciation, Deputy Foreign Minister Aleksandr Grushko emphasized that “the withdrawal from the Conventions of the Council of Europe, contrary to various conjectures, didn’t have a negative impact on the system of human rights protection in our country.” Notwithstanding a short period of time for tracking and assessing changes (less than a year), a similar narrative on the status quo of rights protections was reiterated in the Federation Council. Furthermore, Prosecutor General Igor Krasnov and head of Russia’s Supreme Court Vyacheslav Lebedev have also pointed to the absence of the Russian withdrawal’s impact from the ECHR on human rights and the justice system in Russia.

However, the state of affairs in practice may be different and show some room for deconstruction of the claims above (or, rather, ceremonial incantations) of non-influence. I am not referring only to the already mentioned laws, which denounced the Convention and closed the ECtHR off from Russians; rather, I am also concerned with subtle reconfigurations in the RCJS.  

A general trend is that the exit from the Convention system has been accelerating Russia’s transition to social conditions wherein rights-based semantics are increasingly deemed irrelevant for the operations of the RCJS. Although the Parliamentary Assembly of the CoE’s April 2023 report, “Implementation of Judgments of the European Court of Human Rights,” confirmed its readiness to monitor and supervise implementation of the ECtHR’s judgements in relation to Russia despite all hindrances, Russia shows no intention of continuing to implement even those decisions rendered in previous years (Garabayev v. Russia, 2007, Svinarenko and Slyadnev v. Russia, 2014, Kuzmin and Оthers v. Russia, 2021, etc.).

In addition to the laws mentioned, on February 6, 2023, Vladimir Putin signed an updated version of a presidential decree “On the Monitoring of the Application of Law in the Russian Federation”. It precluded gathering information on compliance with the ECtHR’s rulings and proposing amendments to Russian legislation (adopting/changing/repealing laws) to prevent any monitoring of compliance.

Bearing in mind an ultimate goal of monitoring as a means of enhancing and refining the Russian legal system, it appears that the Convention and the ECtHR’s judgements become mere background noise, irrelevant to the system. The RCJS’s responsiveness to human rights has been narrowed and the human rights “noise” is not going to produce, sociologically speaking, further impact on that system. Notably, the last report issued by the Russian Ministry of Justice on results of monitoring issued on November 2, 2022 underlines the annulment of legislative norms that “implied the improvement of the Russian Federation legislation as a result of the European Court rulings.”

The issue at stake is that internal restructuring and perturbations spurred by the EctHR’s judgements had previously restrained the crime control programme by reinforcing due-process rights, and had facilitated deeper socialization concerned with not just institution-building, but changes in patterns of Russian law enforcement officers’ actual behavior. Addressing this effect, almost all defence lawyers interviewed stressed the utmost significance of the ECtHR’s pilot-judgement procedure for pinpointing systemic problems within the RCJS. One of respondents said:

I believe that this was of paramount importance, since it was a kind of guideline for the legislator, which, of course, didn’t have to be used as a ‘carbon copy,’ but could be taken into account. And on this basis, to improve the legislation. And we know a lot of such examples concerning the Russian legislation and pilot-judgements. It works. It worked. And you know this is an ‘external audit.’ It’s always good to be externally audited.

One can speculate that resolving many structural problems identified in Russia by the ECtHR (ensuring a right to an adversarial trial, and addressing poor justification of pre-trial detentions, cases of torture, etc.) will now face additional challenges. It goes without saying that the ECtHR was an international institution with the capacity to observe the RCJS’s functioning and to legally demand that problems within it be solved. Although there is still an option to resort to the United Nations Committees, all interviewees had little faith in the efficiency of this mechanism for safeguarding human rights in the Russian context.

By and large, ruling out the ECtHR’s activity from sources that trigger the RCJS’s evolution towards human rights furthers a long-standing simplification of the RCJS. This decreases its complexity and rationality, producing meanings outcomes that mainly lead to guilty verdicts. As one research participant has commented on the consequences of the Convention’s denunciation:

Everything’s simplified. These [courts] have simply started ignoring everything. That is, everything’s put on stream… Nowadays decisions, especially about measures of restraint, are ordinary, the simplest decisions stating that everything’s legal, justified… Well, verdicts are basically the same. Guilty, everything’s corroborated.

Initial Structural Resilience within the Russian Criminal Justice System

As with each case of social process, the observed changes in the RCJS  are complicated and heterogeneous. Notwithstanding the discouragement among interviewees after the “Ruxit” from the ECHR, one can notice their willingness and ongoing attempts to apply the ECtHR’s judgements in their legal arguments before courts even now. Apparently,  simplification tendencies are combined with the structural resilience and the hidden mobilization of the Convention. It shows that some effect of legal socialization has in fact occurred and that this can mitigate, more or less, the human rights backlash in the RCJS.

There are still defence lawyers following the legal reasoning elaborated in the ECtHR’s rulings and using standards of that reasoning to enhance their own arguments. Mostly, the Russian withdrawal from the Convention has not been regarded by respondents in a strictly legalistic way (that is, as an indisputable sign of the Convention’s irrelevance to domestic law in action). One of the interviewees explained that:

We write an appellate claim on the choice of a restraint measure, when it’s obviously excessive, in the form of detention, then we use the well-known cases of the European Court without specific references to sections of the case itself. But we use argumentation, conclusions about the need for balance, [and] striking a balance between private and public interests. We talk about the fact that there should be proportionality in terms of the public danger and the restraint measure … the repressiveness of the restraint measure that is going to be chosen. That is, we don’t quote, so to speak, with references in the exact sense of the word, specific cases.

It is worth highlighting that such a strategy is employed during oral presentations in courts as well. In some extreme cases, defence attorneys are ready to appeal to the Convention and ECtHR’s rulings directly. However, they acknowledge that it may enrage judges and enable them to formally refute arguments by simply referring to the denunciation (that is, without assessing statements substantively). Sharing his experience, a criminal lawyer has emphasized:

I try not to make the reference for one simple reason, because there’s no reaction to the content, but to the reference itself. And if I were a judge who wanted to reject everything, then, for any reference to the ECtHR, I’d broaden my ruling by three paragraphs and explain why this reference is not legal. I’d have such a ruling … We try to translate this standard into the practice, not even refer to it, but to act according to it and demand such behavior that meets the standard.

The standards of reasoning embedded in the ECtHR’s rulings aid some respondents in submitting a motion for extension of time to study case files, to challenge search and seizure, and to generally protect freedoms based on the ECtHR’s proportionality principle on interference with human rights.

Apart from criminal lawyers’ unwillingness to renounce European standards, even the centerpiece of the RCJS, the courts themselves, have not yet become uniform regarding the Convention’s application. On the one hand, there are rulings, wherein the Russian judges underscore the country’s withdrawal from the CoE; on the other hand, one can find decisions of districts courts, courts of appeal, and cassation courts with direct references to the Convention and the ECtHR’s case law to enhance their judgements’ justification. It seems that some judges are now following a sort of the utility-maximization strategy. If appeals to the ECHR are helpful in terms of their rulings’ preparation, the court staff uses them. If parties utilize the Convention, contradicting a judge’s view on a case, then their arguments are formally rejected due to the country’s withdrawal from that treaty.

Conclusion

Despite the structural resilience described, there is not much optimism about the mobilization of the Convention’s rights after “Ruxit.” As with maintaining any already acquired skills, the legal reasoning in the manner of the ECtHR should be practiced regularly.  Even if defence lawyers and Russian human rights activists in general proceed with their hidden mobilization, they may eventually wind up adapting to the simplified state of criminal justice in Russia and its withdrawal from the Convention. The appropriate way of building legal argumentation may vanish from their toolkit because of the natural necessity to use solely those means that are most efficient in the simplified system.

It is saddening to quote a research participant in saying that:

“concerning courts of the general jurisdiction, because of the degradation, the argumentation is minimal. Just the bare minimum. That is, you already begin to reason at the level of a third-year student and begin to simply explain to the judge that this rule is about this. You know, like to students. And, indeed, this is not the place for complicated legal thoughts.”

It is hardly predictable whether the RCJS will be such a place again. However, researchers can, at least, act as observers to record what has been and will be happening.

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Larry Helfer says

August 1, 2023

Thanks for this post on your interesting and relevant research project. I found it especially notable that some criminal defense lawyers are invoking the principles of ECtHR judgments but without citing to the judgments themselves.

I was unaware that the Russian Federation had formally denounced the European Convention and its Protocols. This initially struck me as overkill, since the treaties no longer apply following Russia's expulsion from the Council of Europe. However, the withdrawals have symbolic importance and may also serve to limit the "legacy effects" of ECtHR jurisprudence in the Russian legal system that your research reveals.

Konstantin Skoblik says

August 2, 2023

Dear Larry Helfer,

Indeed, research participants also pointed to the excessiveness of Vladimir Putin's intention to denounce the Convention, since Russia had already withdrawn from the treaty. The formal denunciation appeared to be merely a political and symbolic act.

Regarding strategies of the Convention's "hidden mobilization", It may be of interest to you that some criminal lawyers have started invoking the ECtHR's principles by referring to the decisions of the UN Human Rights Committee. They employ standards and legal reasoning of the ECtHR to enhance their argumentation but formally refer to sections of the Committee's decisions similar to the ECtHR's judgments, which they would have used directly if Russia had not exited from the Convention. Formal references to the Committee's decisions serve as a sort of disguise to deliberately conceal the occurring mobilization of the ECtHR's principles.