A Roundtable on the Theme: “Enforcement of European Court of Human Rights (ECHR) Decisions on Cases Involving the Protection of Freedom of Conscience”

July 7, 2010
Roman Lunkin

Report

The unfair and even negative attitude of state authorities to the European Court of Human Rights (ECHR) with respect to the complaints of Russian citizens has become a real obstacle on the path towards the modernization of the judicial system in Russia. Citizens complain of unfair legal proceedings, excessively long detention periods, the non-payment of pensions and other benefits – the avalanche of complaints stemming from Russia just keeps growing. Cases regarding the protection of the freedom of conscience represent an excellent example of lawlessness on the part of state officials and judges. On June 10, 2010, the European Court of Human Rights made its latest decision in the case of Religious Community of Jehovah's Witnesses in Moscow v. the Russian Federation. The Strasbourg Court found the liquidation of the community of Jehovah's Witnesses to be unfair (the legal proceedings for this case lasted from 1998 to 2004).

In connection with this particularly acute problem, on June 30, 2010, the Slavic Center for Law and Justice (SCLJ) held a roundtable on the theme “Enforcement of European Court of Human Rights (ECHR) decisions on cases involving the protection of freedom of conscience.” Legal scholars, journalists, and representatives of religious organizations were invited to take part in the roundtable. Among the panelists were the SCLJ’s co-chairs, legal counsels Anatoly Pchelintsev and Vladimir Ryakhovsky, as well as lawyer Roman Maranov, lawyer Galina Krylova, Professor Nikolai Gordienko of the Russian State Pedagogical University named for Herzen, lawyer Aidar Sultanov, lawyer Sergei Sychev, lawyer Lev Simkin, M.I. Odintsov, and Andrei Sebentseov, a specialist in state-church relations, in addition to others. The roundtable was moderated by the Director of the Institute of Law and Religion, Roman Lunkin.

As noted by Anatoly Pchelintsev, Russia is already catching up with Greece in terms of the number of complaints regarding the freedom of conscience filed with the ECHR, and Russia also is strongly lagging behind in terms of its compliance with the European Convention on Human Rights (November 2010 will mark 60 years since the adoption of the Convention). According to international ratings, the index of freedom in Russia has seen a decline in all categories - this essentially means that the formation of civil society is accompanied by heavy costs. The freedom of conscience, according to Pchelintsev, is a systematically important right; and without the freedom of belief, one cannot even speak about other democratic freedoms. At the same time, Russia is in no hurry to enforce the decisions of the ECHR, despite the fact that they form part of the Russian legal system. In Pchelintsev’s view, even some experts from the Ministry of Justice of the Russian Federation are promoting a negative public opinion in relation to international law, as well as disrespect for the country’s own Constitution. Thus, in one of his articles, an expert from the Council for Religious Studies Examination, Mr. Mukhtarov, stated that the latest decision of the ECHR regarding the Jehovah's Witnesses is dispensable and "cheap demagoguery," further recommending that it be ignored. The level of legal awareness of such afflicted so-called “experts” does not hold any water.

In Vladimir Ryakhovsky’s opinion, the situation regarding the failure to implement the ECHR decisions can be characterized not so much as legal nihilism, but rather as an outrage. In a number of cases—most notably in such cases as that filed by the Salvation Army, Kuznetsov and others, Petr Barankiewicz, as well as other cases—the ECHR clearly revealed the inconsistency of the Russian judicial system in terms of the decisions it takes. In its decisions regarding the Church of Scientology and the Jehovah's Witnesses, the ECHR drew attention to the obvious absurdity and absence of facts on the part of Russian officials. In addition to that, in many cases, the decisions made by the Russian courts were never subsequently revoked. This is the situation with the decision taken in the Salvation Army case. In such cases, the only measure actually taken on the part of the government was to pay the fine imposed by the ECHR - as somewhat of a “tax on lawlessness,” so to speak. According to Ryakhovsky, what is required is the development of a mechanism for reviewing the decisions of the Russian courts in the context of the ECHR’s decisions and then liability imposed for the failure to implement such decisions. No such mechanism exists at this time.

Legal counsel Roman Maranov recalled that supervising the implementation of the ECHR’s decisions remains the responsibility of the Cabinet of Ministers of the Council of Europe, which publishes reports on the enforcement of these decisions and on whether measures of either a general or individual character have been taken by signatory states in this regard. Reports from the Russian side with respect to the implementation of such decisions are presented by the Government of the Russian Federation. Its representatives, of course, claim that there are no problems whatsoever in this regard. Mr. Maranov recommended that work also be continued after the ECHR hands down its decisions and that an appeal be made to the Cabinet of Ministers of the Council of Europe in this regard.

However, as noted by lawyer Galina Krylova, informing the Cabinet of Ministers of the Council of Europe about a particular decision previously made by the ECHR can only be done by the parties that filed the complaints in the first place. The Church of Scientology in Moscow, for instance, has been informing the Cabinet of Ministers to this effect for three years already, but this has not brought about any changes. Regarding the ECHR’s decision on the Jehovah's Witnesses of Moscow, Krylova considers this to be a gift for all entities who anti-cultists have accused of turning their followers into zombies, among many other allegations. The enforcement of the ECHR’s decisions remains a big issue, as it is unlikely that a decision taken by the Golovinsky Court will be revoked and the process repeated; whereby Mr. Dworkin, for instance, will once again serve as a witness for the prosecution. Since that time, the Jehovah's Witnesses have again filed a complaint with the ECHR concerning the fact that their literature has been deemed extremist by Russian authorities. Soon, the Scientologists will also be lodging a complaint about similar state recognition of its literature as extremist. Ms. Krylova explained that Russia has essentially become somewhat of a platform for the protection of the rights of new religious movements, since, on the basis of the ECHR decisions taken in response to the Russian complaints, Scientologists, for instance, have finally succeeded in achieving legal registration in Spain and Portugal. In her view, all of the “non-traditional” religions of Europe have Mr. Dworkin to thank for the establishment of such a groundbreaking legal precedent.

During the roundtable, lawyer Aidar Sultanov shared his experience with respect to the interests of the Church of Scientology in Nizhnekamsk. The ECHR decision ruled in favor of the Scientologists in that specific case. Mr. Sultanov had filed a petition for reconsideration of the case based on newly revealed circumstances, and the Nizhnekamsk court responded by overturning the earlier decision to deny the registration of the Scientologists. However, at the same time, the court noted that it does not have the right to specify who should register and who should be registered. As a result, the church has still been unable to achieve legal registration. According to Sultanov, in accordance with Protocol 14 of the Convention, which Russia has ratified, the Cabinet of Ministers may submit an application to the ECHR regarding Russia’s default in performance of its obligations with respect to the ECHR decision. In this way, lawyers should strive to ensure that the decisions taken by the Strasbourg Court are implemented by national courts.

The status of the Russian judicial system, as demonstrated by this discussion, appears to be gloomy. The idea that the country has created a system of lawlessness and that there is no actual justice in the present judicial system was put forward by lawyer Sergei Sychev, who represents the interests of the Russian Orthodox Autonomous Church (ROAC) in regards to the government’s seizure of its churches in the Vladimir region (the ROAC has also filed a complaint with the ECHR) and by Vladimir Oivin, the deputy editor of the online publication Portal-Credo.Ru. Professor Nikolai Gordienko, a well-known expert on religion from St. Petersburg, cited the common idea that “might comes before right.” He further noted, “The judges fail to pay attention to the details of a case, and they are not ashamed of the decisions they make, because they are backed behind real might. Until this line of authority changes its direction, this is how they will continue to act.” In addition, according to Gordienko, the public is also not actually ready to accept the idea that all of the religions represented in our country should enjoy an equal legal status and position. In the professor’s opinion, until our country’s top-ranking leaders realize that the courts are pulling their chain, nothing will change. In the viewpoint of this expert on religion, the legal elimination of religious communities is only indicative of the creation of new religious gulags, so to speak. Either this is a reality or the authorities, for some reason, believe that the communities of Jehovah's Witnesses and the other "non-traditional" religions of Russia are actually comprised of token believers in the same way that holds true for Orthodox Christianity.

As stated by lawyer Leo Simkin, we have lost the information war that is being carried out in Russia against religious minorities. The human rights community is not fully using all its capabilities with respect to coverage of the decisions that have been rendered by the ECHR. For instance, there are a number of key moments in the decision regarding the Jehovah's Witnesses in Moscow - the first pertains to such religious precepts as blood transfusions, circumcision, and fasting. The decision also noted that, in principle, the Moscow authorities actually intended to ban the Jehovah's Witnesses from functioning throughout the country, although nobody else in the world seems to be fighting this particular movement.

However, the overarching question raised at the roundtable, as put forward by lawyer Andrei Voloshin ultimately lingers in the air: Why do Russia’s courts continue to foster lawlessness, and does it stem from ignorance or is it the result of a political order as to how things are done?

One of the most pronounced perspectives put forward at the roundtable was expressed by Andrei Sebentsov. Many new and promising things have already been voiced in the latest formal address by the Russian President, which focused on modernization. Our Constitution can also be seen as a modernization project in and of itself. This then leads to the questions: Why did Russia become part of the Council of Europe, and why has it accepted the jurisdiction of the ECHR? In order to bring it shame? Is this some kind of masochism on the part of the state? According to Mr. Sebentsov, the ECHR decisions are not “newly discovered evidence,” but rather an evaluation of the mess currently in place. A potential solution to this problem may be the adoption of a special law, in which the relationship between our courts and those at the international level would be spelled out. It would be necessary to include the following measures in such legislation: 1) Levy a fine, the amount of which should be determined by the ECHR, that is applicable to all parties who have committed acts that show disregard for the law; and 2) Summon the relevant judges to disciplinary board hearings to find out why they have made such unjust decisions, on the basis of Russian legislation itself. It is only by such measures that our judiciary may be brought to finally adopt the practice of sensible reasoning. In Sebentsov’s view, this issue remains a challenge first and foremost for the President of the Russian Federation and the Presidential Administration, which are now actively engaged with the challenges associated with the country’s modernization.

The situation surrounding complaints to the ECHR in instances where the freedom of conscience is violated in Russia remains critical today. The courts continue to take new decisions that are absurd, while the ECHR decisions are still not being implemented. Russia, which is often presented at an official level as a country exemplifying inter-religious accord and religious tolerance, has actually become a country in which the faithful are systematically oppressed. In the past 20 years across the country, the religious movements that have historically existed in Russia have freely developed, and at the same time, new movements have emerged. However, when the mass campaign against the “non-traditional” religions was launched at both the regional and national levels, it seemed that these faiths and their members were virtually abandoned. Today, there is a united stance among those who defend the freedom of conscience across Russia and the need for a common law, which would be obligatory for all religious denominations, whether they be large or small. Given the position taken by the local authorities and the mass media today, it is clear that many religious communities have been all but left without any informational and legal support.