The withdrawal mystery solved: how the European Court of Human Rights decided to move forward with the cases against Russia

At the end of January 2023, the European Court of Human Rights (ECtHR) delivered judgments on the issues that have been occupying the minds of the Court’s aficionados. On January 25, the Court ruled on the admissibility and partly on the jurisdiction in Ukraine and the Netherlands v. Russia, where the ECtHR mostly focused on the issues of effective control and the downing of the MH17 flight. Awaiting a rather extensive scholarly response to that case, this post instead focuses on the other two judgments from January 24 – Kutaev v. Russia and Svetova and Others v. Russia. While both cases touch upon important aspects of human rights violations (right to fair trial and prohibition of torture in Kutaev and right to private life and freedom of expression in Svetova), what makes these cases special is the Court’s explanation of how it plans to procedurally act further with regard to the complaints lodged against Russia.  

After it became clear that Russia will cease to be a member of the Council of Europe, lawyers, scholars and people working at the Court were puzzled about what to do with cases that had not been communicated to the Russian government as Russia stopped liaising with the Court since March 15 2022. Earlier, Kanstantsin Dzehtsiarou offered a few alternatives for how the Court could handle the lodged applications against Russia. For instance, the Court could have chosen to deal only with high-profile cases (e.g. politically sensitive and inter-state cases); it could have completely suspended the adjudication of all cases against Russia; it could also have “struck out” of all pending cases based on the lack of practical impact of the judgments. The other alternative that Dzehtsiarou described as not “very plausible” was continuing “business as usual” – meaning that the Court would continue dealing with all pending applications as before Russia’s withdrawal from the Council of Europe. And now it seems that the Court plans to do exactly that.

Two major questions were unclear to the human rights community: 1) how the ECtHR will deal with the absence of collaboration of the Russian authorities with the Court and Committee of Ministers and 2) how the Court will approach the procedural problem of the absence of the Russian judge (and ad hoc judges from the Russian list) on the bench (Article 26(4) of the ECHR).

First, the collaboration of a state has always been a crucial procedural element in the adjudication processes because it is the core of the principle of equality of arms. If a state does not submit its views on the case, how can the Court decide on the merits using only the information received from applicants? Second, it has not been clear how exactly the Court will play around with one of its core procedural rules on the formation of the Chamber and Grand Chamber. The Kutaev and Svetova judgments shed more light on these issues.

The first paragraphs of the procedure sections in both judgments are mostly identical. The Court mentions the background of Russia’s withdrawal and the termination of the office of the Russian judge. It further adds in para. 11 in Svetova that “there was no longer a valid list of ad hoc judges who would be eligible to take part in the consideration of the cases where the Russian Federation was the Respondent State.” Para. 11 in Svetova (para. 8 in Kutaev) then went on to explain the ad hoc judges issue:

“By letter of 8 November 2022 the parties were informed that the President of the Section intended to appoint one of the sitting judges of the Court to act as an ad hoc judge for the examination of the present case (applying by analogy Rule 29 § 2 of the Rules of Court). The respondent Government were informed that it was also envisaged to apply the same approach in respect of other applications against that State that the Court remained competent to deal with. They were invited to comment on that arrangement by 22 November 2022, but had not submitted any comments.”

In short, Rule 29 says that the President of the Chamber appoints an elected judge to serve as an ad hoc judge in cases when a judge elected in respect of a Contracting Party concerned either cannot be present in the Chamber or withdraws or is exempted from their participation. The interesting aspect here is that the Rules of the Court do not provide more details on the “inability” of a judge to sit in the Chamber. Even though Rule 29 mentions the withdrawal of a judge, it says nothing about the withdrawal of the state as a whole as well as its judicial office at the Court. Russia’s withdrawal from the CoE was an unprecedented case and therefore, logically, the Rules of the Court did not offer clarity in this regard. That was the likely reason why the Court in Kutaev and Svetova refers to the decision of appointing an elected judge as ‘applied by analogy’. As a result, the ECtHR appointed an ad hoc judge among the members of the composition of the Chamber (para. 12 Svetova).

While the Court ends its procedural explanation on this point in Kutaev, it elaborates further on the other aspects of procedural problematics in Svetova. In “The Law” section of the Svetova judgment, the Court clarifies its reasoning with regard to determining the jurisdiction to deal with the case in question. In para. 25, it cites Article 58 of the Convention:

“1. A High Contracting Party may denounce the … Convention only after the expiry of five years from the date on which it became a party to it and after six months’ notice contained in a notification addressed to the Secretary General of the Council of Europe, who shall inform the other High Contracting Parties.

2. Such a denunciation shall not have the effect of releasing the High Contracting Party concerned from its obligations under [the] Convention in respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became effective.

3. Any High Contracting Party which shall cease to be a member of the Council of Europe shall cease to be a Party to [the] Convention under the same conditions …”

The Court goes on with claiming that a state that ceases to be a party to the European Convention on Human Rights “is not released from its obligations under the Convention in respect of any act performed by that State before the date on which it ceases to be a Party to the Convention” (para. 26). In short, the Court confirmed its jurisdiction over the cases that were lodged with regard to violations that happened before September 16 2022.

While this has been more or less clear since the Resolution on the consequences of the cessation of membership of the Russian Federation to the CoE adopted on 22 March 2022, the mystery remained about how the Court was going to deal with the absence of the Russian government’s participation in the proceedings. On this matter, the Court elaborated in para. 30 of the Svetova judgment, saying that “Pursuant to Rule 44C § 2 of the Rules of Court, “a respondent Contracting Party’s failure or refusal to participate effectively in the proceedings shall not, in itself, be a reason for the Chamber to discontinue the examination of an application.”” The existence of this rule is almost self-explanatory – it safeguards the proceedings from a unilateral delay or obstruction of a proceeding. The Court further added that “the respondent Government’s failure to submit their memorials or participate in a hearing in the absence of sufficient cause can be considered as a waiver of their right to participate.” The ECtHR concludes on that point by stating that although states have duties to cooperate with the Court even after their withdrawal from the CoE, the failure to engage with the proceedings by a state is not an obstacle to the Court’s examination of issues it still has jurisdiction over.

While Rule 44 and its underlying purpose seem quite logical, the Court could still face backlash with regard to the lack of compliance with the principle of equality of arms. The Court itself has been quite vocal about this principle, which it described as a reasonable opportunity that each party must be given “to present his case under conditions that do not place him at a (substantial) disadvantage vis-à-vis his opponent.” (see, e.g. Bulut v. Austria, para 47). By continuing to review applications without state observations, the ECtHR risks being criticized for issuing one-sided judgments and not respecting its own procedures of fair trial enshrined in the Convention. Yet, the existential question now is whether there is a solution or a better alternative for that.

ECtHR is not the first international court that faced this problem. The International Court of Justice (ICJ) has already dealt with cases where the respondent states did not make efforts to defend their positions (e.g. Corfu Channel, Fisheries Jurisdiction, and Nicaragua cases). Pursuant to Article 53 of the Statute of the ICJ, the Court could review the claim in cases of non-appearance and “satisfy itself [that the claim] is well founded in fact in law.” In the Nicaragua judgment (para. 29), the ICJ added that besides relying on the arguments brought by a party, “[it is bound] to consider on its own initiative all rules of international law which may be relevant for the settlement of the dispute […] the law lies within the judicial knowledge of the Court.” While ECtHR’s reasoning vis a vis non-appearance seems to be similar, it could still have highlighted more the fact that in the end, it is a problem of the non-appearing party rather than of the Court. The ICJ (Nicaragua para. 28), for instance, argued that “[a] State which decides not to appear must accept the consequences of its decision, the first of which is that the case will continue without its participation; the State which has chosen not to appear remains a party to the case, and is bound by the eventual judgment […].” Apart from mentioning the failure to submit memorials and non-appearance as waivers of the right to participate in a hearing, the ECtHR only added that it deems such a waiver to be consistent with “the proper administration of justice” (Kutaeva para. 30).

The latter, however, seems not to be in the hands of the ECtHR. The Russian government has repeatedly stated that it ceases the compliance with Court’s judgments. And in the absence of any sanctioning mechanisms for non-appearance and non-compliance, the ECtHR could insist that it still chose to deliver justice and “listen” to the victims from Russia. Sadly, but perhaps better than nothing, the Court now seems to function almost merely symbolically when it comes to the Russian cases. One could look at this decision as courageous and just while others could question the efficacy of this usage of the Court’s capacities.

Nevertheless, for me, it is rather admiring that the Court decided to proceed with reviewing the cases and issuing judgments despite all the difficulties related to the scarcity of human and financial resources. Although knowing that it will not get a response, the ECtHR keeps sending requests for observations from the Russian government – a sign that the Court still sticks to its procedural obligations. Yet, it should be better prepared to react to potential criticism by means of more elaborated explanations of the consequences of non-appearance in its judgments.