A narrowing Window of Opportunity for Human Rights Litigation against Russia
Obligations under the European Convention on Human Rights continue until mid-September
In March, the Council of Europe (CoE) excluded the Russian Federation. In the 1990s, the inclusion of Russia in the CoE was undertaken not so much in recognition of what Russia had achieved, but it was an investment into the future, a bet on better relations. In the optimistic years between the fall of the Berlin Wall and 9/11, the West opened its arms toward Russia and a number of cooperation initiatives have been established to connect Russia and the West closer to each other. Russia was often given the benefit of the doubt. But in the last quarter of a century, it has become increasingly clear that the values of the Russian leadership, and of many who support the government in Moscow, are not going to align with those of the West. This could be seen in the indiscriminate use of force in Chechnya and Syria, the illegal wars against Georgia and Ukraine, the occupation of parts of Georgia, Moldova, and Ukraine, the lack of interest in actually breathing life into cross-border cooperation schemes, and in many human rights violations both in Russia and abroad.
Membership in the Council of Europe also means becoming a party to the European Convention on Human Rights (ECHR). In recent years, it has become increasingly clear that Russia’s compliance with its obligations under the ECHR was less than sufficient. Since the escalation on 24 February 2022, respect for human rights has decreased, even more, both at home and abroad.
But Russia’s expulsion from the CoE does not mean that Russia would no longer have any obligations under the ECHR. Article 58 ECHR stipulates that these only end six months after the state’s CoE membership has ended. This means that Russia can still be brought before the European Court of Human Rights (ECtHR) for all human rights violations in the first six months after it was expelled from the CoE on 16 March 2022. Russia is very unlikely to honour these obligations and the CoE is effectively powerless to enforce judgments by the ECtHR as the Council of Europe has already used its ultimate weapon - complete expulsion. But bringing a case to the European Court of Human Rights can be relevant and useful anyway. A future Russian government, democratically chosen and at peace with its neighbours, might seek closer ties with Europe again, even if only in years or decades from now, similar to the way Germany and Japan were reintegrated into international society sometime after World War II. Making amends for past injustices is an important step toward reintegrating into society. The same would apply to a future Russia. Honouring obligations for violations of human rights that the ECtHR has already determined could be part of such a transitional justice process.
Today, the focus needs to be on preventing more human rights violations, and on ending the war by completely restoring the territorial integrity of Ukraine and any other countries where Russian forces are deployed without the consent of the government, i.e., Georgia and Moldova. Any transitional justice system will have to involve a government that will have been freely chosen by the people of Russia. Those responsible for war crimes must be brought to justice and must be held accountable. This includes not only those who actually pulled a trigger or pushed a button but the entire command chain, including the political leadership and those in power - but also those who made these crimes against the civilian population of Ukraine possible in the first place, for example by providing funding. Holding all who are responsible accountable will not be limited to Russia. Providing compensation for violations of human rights will be part of the transitional justice effort.
Many who have suffered human rights violations by Russia, be it by the Russian state or other Russian authorities, Russian soldiers, or proxy forces that act on behalf of Russia, will find it difficult to think of litigation at this stage. Understandably, it will feel difficult for many victims of Russian violations of human rights to contemplate legal procedures that are unlikely to lead to results. However, the practical reality of the procedural rules applicable to litigation under the ECHR means that there is a limited window of opportunity for those who want to pursue litigation options. The hard deadline that is imposed by Article 58 ECHR and the expulsion of Russia from the CoE, however, forces potential litigants to act now.
While the outcome is uncertain and it is far from clear if, when, and how a hypothetical judgment against Russia could be enforced, access to the European Court of Human Rights is relatively easy, thanks to the Court’s insistence on using the application form. The ECtHR does not charge court fees and applicants do not have to be represented by a lawyer (although it is common practice that they are).
The standard admissibility requirements under Article 35 ECHR apply, in particular the four months deadline (which is not to be confused with the six months rule in Article 58 ECHR). Russia can only be held accountable for actions and omissions that happened during the time when it was a party to the ECHR and during the six months after its expulsion. Human rights violations that happen until mid-September are still covered by the ECHR. In order for an application to the ECtHR to be admissible, the applicant usually must have gone through the entire national court system, exhausting all domestic appeals etc. Only when national courts are no longer available, will the applicant be permitted to bring a case to the European Court of Human Rights. This then will have to happen within four months from the last decision of a national institution, usually a supreme court or constitutional court. This will be highly impractical for many potential applicants. The European Court of Human Rights has recognized this problem and has created exceptions to the rule that national remedies must be exhausted before bringing a case to Strasbourg, for example, if domestic remedies would be obviously ineffective if there would be longstanding administrative practices that discriminate against certain persons so much that it is impossible for them to obtain justice in the courts of the respondent state etc. The European Court of Human Rights has dealt with this issue also in the context of the inter-state case between Ukraine and Russia that was decided in 2020. This exception can make it easier for litigants from Ukraine to lodge applications that will actually have a chance of being admissible.
About the author
Prof. Dr. Stefan Kirchner is working at the intersection of international environmental law, human rights, and the law of the sea. In addition to practising law, he has taught international law at universities in Germany, Finland, Italy, Lithuania, Ukraine, and Greenland. His most recent books include “Security and Technology in Arctic Governance” (ed., 2022), “Governing the Crisis: Law, Human Rights and COVID-19” (ed., 2021) and “El Ártico y su gente - Ensayos de derecho internacional” (2020), and “The Baltic Sea and the Law of the Sea - Finnish Perspectives” (with T. Koivurova, H. Ringbom and P. Kleemola-Juntunen, 2019). This text only reflects his personal opinion.