What the European Court of Human Rights can and cannot do when considering the complaints from citizens of the Russian Federation

The European Court of Human Rights (ECHR) regularly requires the Russian Federation to pay compensation to its citizens. For its part, the Russian Federation implicitly executes the court’s decisions. The restoration of justice, however, is far more complicated. It is probably because of this that the stream of complaints from citizens of Russia in Strasbourg is only growing.

Beslan waits

In the near future the ECHR may end the communication phase on complaints from the Beslan victims. The communication phase is the name of the procedure during which the court shall inform a state defendant of a complaint, and the state responds to the court’s questions. These questions are based on the arguments of the applicant. The applicant, in turn, responds to the state’s responses. The most probable date for completion of this phase is the end of 2013. Karinna Moskalenko, head of the International Protection Center and one of the leading experts on the ECHR, is one of the representatives of the Beslan victims. She expressed this assumption in an interview with the newsmagazine ‘Sovershenno Sekretno’. The victims expressed this same hope during the latest — the ninth — anniversary of the tragedy.

On September 1st, 2004, during a ceremony in honor of the beginning of the school year, over a thousand people were taken hostage. On September 3rd, explosions took place at the school, followed by an assault (by government forces). 334 were killed, including 186 children.

Even today, the circumstances of these events — who was it that organized the terrorist attack, who was it that caused the explosions, and whose idea was it for the chaotic assault  — are not entirely clear.

The case before the ECHR is titled “Tagayeva and Others v. Russia and six other complaints”. It contains complaints from almost 450 applicants.

Questions the ECHR has asked Russia on the basis of these complaints: Did the authorities take sufficient precautions to prevent a terrorist attack at (Beslan) School Number 1?  Who was personally responsible for security?  What were the causes, circumstances, and location of the first three explosions in the school gym on September 3rd?  Was the use of force by the authorities justified?  How carefully did Russia investigate when it found no violations of law in the actions of the military and security services took place on September 3rd?

Ella Kesayeva is chairman of the Russia-wide public organization for victims of terrorist acts, “Voice of Beslan”. Her daughter Zarina was among the hostages and was injured. Kesayeva gave an interview to ‘Sovershenno Sekretno’ in which she formulated the victims’ general expectations from the impending ECHR decision.

“The true cause of death of the children has not yet been determined,” said Kesayeva. “The Russian investigators limited the investigation to the explosions, the cause of which, however, was also never determined. They did not even try to answer other questions. For example, was the use of military equipment legitimate? And that is not the only thing that requires an investigation. Investigators tell us that the answers to our questions can take another ten years. We do not want to wait that long. Our only hope is Strasbourg.”

Ella Kesayeva says that over the last nine years almost all the victims of the Beslan tragedy have become devote believers. Some put their faith in Allah, some in Jesus, while everyone puts it in the ECHR.

Over the years they have not seen any results from the investigation in Russia. “It is as a matter of fact classified in order that the victims cannot see a thing,” said Kesayeva. They never passed a law on the legal status of victims of terrorist attacks, which could guarantee them not only a one-time payment of compensation (relatives of the victims of the Beslan received an average of one hundred thousand rubles), but also lifelong social support. Victims are in constant need of medical and psychological care, but they have to pay for treatment on their own. The ECHR decision may serve as a strong argument in favor of adopting such a law in Russia. The Beslan residents who have turned to Strasbourg believe this.

“Just as in 2004, the government today does not guarantee the right to life, and assumes no responsibility for its violations,” said Kesayeva. “No responsible official has been punished for the deaths of our children and families. The authorities, it seems, behave as if they were some kind of a benefactor, distributing compensation and putting candles in church. The state is not a benefactor, but a structure whose actions led to this tragedy.”

From Dubrovka to Syria

Kesayeva’s comrades in misfortune are the loved ones of victims of the terrorist attack on the theater at Dubrovka in Moscow. On October 23rd, 2002, terrorists stormed into the musical ‘Nord-Ost’ and seized 916 hostages. During an assault (by the government) on October 26th, all the terrorists and 130 hostages were killed. The hostages did not die, according to their relatives, but were killed. They are certain that the cause of their deaths was an unknown toxic substance used by the Russian security services.

When the freed hostages were removed from the buses, many were already dead. Witnesses stated this, indicating the inhumane transportation of the victims. No one denied this evidence in court by claiming defamation. Despite this, however, the Russian government does not accept its guilt, and states that the gas was used for the purpose of lulling the terrorists to sleep and minimizing casualties, which were inevitable.  The composition of the gas has still not been made public, just as the names of those who chose to use it remain secret. Had physicians been prepared for a gas attack, and provided with the respective medicines, the number of victims might have been significantly less.

In December of 2011, the ECHR reached a decision, more than eight years after more than sixty Dubrovka victims filed their complaints. A year later the ruling would enter into force. Russia was required to pay the victims of the terrorist attack 1.3 million euros. The court ruled that the rescue operation was poorly planned and inadequately executed, and that the circumstances were not effectively investigated by Russia. This is a direct violation of Article 2 of the European Convention on Human Rights and Fundamental Freedoms — the right to life.

Svetlana Gubareva runs the Nord-Ost.org website that hosts the Book of Remembrance of victims of the terrorist attack, as well as information about the investigation. She was taken hostage along with her daughter Sasha Letyago and fiancé Sandy Booker. They had gone to the musical to celebrate Svetlana and her daughter receiving their U.S. visas. They were soon to go live in Oklahoma. Svetlana’s daughter and fiancé died. Svetlana Gubareva recounted how her thirteen-year-old daughter was taken to the hospital after the assault. Sasha was carried out to a bus, and several adults were laid on top of her. Svetlana also told how the doctors did not turn their attention to Sandy Booker until 8:30 am on October 27th, and only then in order to ascertain his cause of death.

“Following the ECHR decision, we received a payment, but did not get our other desired result: a thorough investigation,” said Svetlana Gubareva in an interview with ‘Sovershenno Sekretno’. “They still have not initiated proceedings against members of the security services. Now the highest levels are discussing and investigating the use of chemical weapons on civilians in Syria. Had the mysterious gas used on us been investigated, perhaps the tragedy in Syria would not have happened.”

Tatiana Karpova, co-chair of the ‘Nord-Ost’ regional public organization, lost her son Alexander Karpov in the terrorist attack. The terrorists, according to Tatiana Karpova, used him as an interpreter to communicate with the foreign press. They took him out “to be shot” several times, because he had, in their opinion, wrongly translated something. To intimidate him, they fired automatic rifles over his head. According to his family, it was only the gas that killed Alexander Karpov.

“We really have not seen the results of an effective Russian investigation of the tragedy,” said Tatiana Karpova. “And there is very little hope of one.  But we have had no disappointments with the ECHR. We are disappointed because we live in a country where the laws are not respected. This led us to Strasbourg. Now our fellow unfortunates — they are in fact a lot more of than just the sixty applicants — are preparing a new appeal to the court.”

Karinna Moskalenko, who represents, among others, victims of the tragedy at Dubrovka, says that she presented a memorandum of (Russia’s) non-compliance to the Committee of Ministers of the Council of Europe, the body that oversees the implementation of decisions of the ECHR. Her report dealt partly with the investigation into the actions of the operational headquarters and health care workers.

“Information about the gas or aerosol, for example,” said Moskalenko. “The circumstances of the death of each person and the names of members of the operational staff should be made known to all, but these are still not known. The Russian authorities have switched to ‘running the fool’, as in (a comedy bit by stand up humorist Arkady) Raikin by referencing the ECHR decision as having been carried out.  Russia, however, has ignored the victims’ demands to prosecute security service officers and health workers. Even though Strasbourg ordered Russia, the authorities still will not prosecute decision-makers from those days, or those responsible for the medical part of the rescue operation. And this needs to be done, if not by holding them criminally liable, then at least financially. I also informed the Committee of Ministers that we have been joined by a new group of Dubrovka victims, and added to the memorandum their names and their statements demanding that the Russian prosecutor carry out the ECHR decision.”

‘Kursk’ and sinking hopes

Reasons for appealing to the ECHR are inaction or actions on the part of the Russian authorities in which victims detect signs of a crime. In the process many are converted into ideological opponents of a state does not respect human rights. As proof of this, there are the citizen associations that relatives of the Beslan and Dubrovka victims have joined.

But this does not always happen.

For example, Roman Kolesnikov, the father of Captain-Lieutenant Dmitry Kolesnikov (of the nuclear submarine ‘Kursk’), was the only applicant to the ECHR in the case of the vessel that was lost in August of 2000. Roman Kolesnikov, however, withdrew his complain, even though it had already been accepted for consideration.

According to Russian officials, Dmitry Kolesnikov wrote a note before his death, and indicated that 23 crewmembers did not die immediately after the explosions that sank the vessel. They waited for help for at least two and a half days. In his complaint, Roman Kolesnikov stated, among other things, that the judges, prosecutors and investigators committed malfeasance in not criminally punishing persons whose gross negligence led to the loss of the ‘Kursk’ crew. In 2002, a Russian investigation into the loss of the vessel was closed, and complaints regarding any further investigation were rejected. Thus, according to the applicant, not only was the right to life was violated, but also the right to effective legal remedy.

Roman Kolesnikov withdrew his complaint in 2009 for unknown reasons. Experts believe that Kolesnikov was under pressure to do so. He, however, remains silent.

This is not surprising if we recall what happened to the lawyer for Roman Kolesnikov and other victims: famous Russian attorney Boris Kuznetsov, author of the book “It sank… Or the truth about the ‘Kursk’ which has been covered up by Prosecutor General Ustinov” (Translator’s note: “It sank” was President Putin’s cynical reply when asked what exactly occurred on that ill-fated vessel.) In 2007, the Federal Security Service opened a criminal investigation against Kuznetsov for disclosing state secrets. The attorney was forced to seek political asylum in the United States, calling his prosecution retaliation against his professional activities. Kuznetsov received political asylum. In July of 2013, the Presnensky district court in Moscow tried the lawyer in absentia and ordered his arrest.

Despite all this, the name ‘Kursk’ is still pronounced at the European Court of Human Rights.

It is pronounced, thanks to complaints against Russia filed by ‘Novaya Gazeta’ journalist Yelena Milashina. Milashina believes that Russia violated Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms — freedom of expression. In her articles, Milashina describes in detail demands by Boris Kuznetsov and Roman Kolesnikov for an investigation of Russian naval officers. As a result, Moscow’s Basmanny Court found ‘Novaya Gazeta’ and its journalist guilty of defamation and spreading false information.  Dr. Viktor Kolkutin, chief medial examiner for the Russian Ministry of Defense and head of the investigation into the ‘Kursk’ case, Artur Yegiyev, senior investigator for particularly important cases for the Main Military Prosecutor's Office, and Alexander Savenkov, the chief military prosecutor, were offended by the publication of excerpts that stated that Kuznetsov and Kolesnikov viewed their activities as “malfeasance aimed at allowing officers of the Navy (in command of the Russian Navy Northern Fleet) to avoid criminal liability” and end  the investigation.

Yelena Milashina, who is defending her professional right to a legitimate court decision, hopes that the ECHR will decide in her favor. She does have much hope that this decision will lead to changes in an investigation into the loss of the submarine:

“We are talking about complaints in civil suits, and these, as a matter of fact, have no relationship to criminal proceedings,” said Milashina. “After the complaint in the criminal case was withdrawn from the ECHR by Roman Kolesnikov, there are no prospects for ‘Kursk’.”

Chechnya, which knows no statute of limitations

Russia remains the leader in the number of appeals to the ECHR — and not because of the size of the country. Russia is also the leader among those who fail to comply in full with the decisions of Strasbourg.

Non-enforcement of ECHR decision was highlighted in an entire report by the authoritative human rights organization Human Rights Watch, titled “Who can tell me what happened to my son?”

It deals with ECHR decisions concerning the Second Chechen War, cases in which Russia was found guilty in the disappearance of people, extra judicial executions, torture, and denial of thorough investigations into circumstances. The names of those guilty of the disappearances of people are not to be found in the complaints to Strasbourg, even in cases where, in the opinion of the ECHR and the applicants, they are well known. The applicants were not informed about the progress of investigations (the same complaint as the Beslan victims, you may recall), and investigations being delayed.

This report came out four years ago, but the situation has not changed.  Meanwhile, the ECHR continues to decide in favor of victims of the Second Chechen War. In October of 2013, the court made several important decisions on complaints from residents of Chechnya and Ingushetia concerning the deaths and disappearances of loved ones in the Second Chechen War. In February of 2000, the village of Aslanbek-Sheripovo in the Shatoysky district of Chechnya was shelled. Villagers appealed to the ECHR in “Abdulhanov and Others v. Russia”, and the court ordered Russia to pay more than a million euros to the applicants who had lost eighteen relatives in that attack. The ECHR recognized that Russia had violated their rights to life and effective legal remedy.

In another ruling, also made in October of 2013, the ECHR in “Gakayeva and Others v. Russia” ordered Russia to pay Chechen residents over one million euros due to violations of the rights to life, liberty, security, effective legal remedy, violations of the prohibition of torture, and the right to protection of property. During the period from 2000 to 2005, armed men in military uniform had abducted the applicants’ relatives.

A similar decision, also concerning missing relatives and torture, but this time in Ingushetia, was made in “Yandiev and Others v. Russia”. The applicants were awarded damages in the amount of 200 thousand euros.

Will Russia comply with ECHR decisions on carrying out effective investigations? Tatiana Lokshina, director of Human Rights Watch in Russia, says that the many heroines in her report from four years ago still have not received this:

“People, including those whose testimonies appear in the report, received monetary compensation,” said Lokshina. “But they have received justice. They have not received answers as to what happened to their sons and relatives.  There are already more than two decisions by the ECHR on ‘Chechen’ cases, and all of them in this sense can be considered unfulfilled. Hope remains but a hope. Exceptions are very rare, I would even say unique. For example, there is the case of Chechen physical education teacher Alaudi Sadikov. He was kidnapped, brutally tortured, and an ear was cut off. After the ECHR decision, in his case there is at least some progress in the Russian investigation.

Even now, while agreeing to pay compensation in ‘Chechen’ cases, Russia always publicly insists that the rulings were politically motivated. It was not until October of 2013, in “Abdulhanov and Others v. Russia” — the shelling of villages in the Shatoysky region — that Russian did not complain of a politically motivated ruling.

“For the first time in many years Moscow has reacted positively about Chechnya,” said Lokshina.

Nevertheless, she does not believe that Strasbourg’s decisions on Chechen and Ingush cases will lead to full investigations into crimes.

Karinna Moskalenko, who represents several plaintiffs in Chechen cases was more specific: as a matter of principal, Russia never refuses to conduct investigations on its territory, it simply does not do anything, referring to circumstances and lost time.

ECHR jurisdiction has extended to Russia since May 5th, 1998. This means that victims of the First Chechen War cannot contact the ECHR, but for the victims in the second war, whose relatives are still listed as missing, there is no statute of limitations:

Lokshina: “During the second war, thousands of people went missing (according to various estimates, more than seven thousand — Ed.). The ECHR accepts complaints up to six months after the issuance of a final decision by local judicial institutions in a case. But in terms of the ECHR, a person’s disappearance is an ongoing violation, so there are no time limits on such a complaint.  Hence, there are still hundreds of appeals.”

Yukos awaits evaluation

A separate chapter in Strasbourg jurisprudence involves cases concerning Yukos and its owners.

Decisions on complaints received by the ECHR in Yukos are mainly on rights to a fair trial, freedom and privacy, respect for property, personal and family life, as well as the habit of the Russian authorities putting pressure on lawyers.

Thus, in 2007, the ECHR ordered Russia to pay 10,000 euros to Platon Lebedev for violations of the Convention for the Protection of Human Rights while holding him in detention.

In 2010, in a complaint by Mikhail Khodorkovsky, the ECHR ordered Russia to pay the same compensation, ruling that Russia had violated the European Convention on Human Rights during Khodorkovsky’s arrest and detention.

In July of 2013, the ECHR made another ruling in the first Yukos case, and once again ordered Russia to pay 10,000 euros to Mikhail Khodorkovsky. The Court found Khodorkovsky and Lebedev to be victims of unfair trials and ruled that their lawyers were pressured and interfered with while filing complaints with the ECHR. The court also considered the imprisonment of Khodorkovsky and Lebedev in remote penal colonies to be unjust.

In November of 2011, an appeal concerning the second Khodorkovsky and Lebedev case was submitted to the ECHR. There is still no decision on it yet.

In October of 2012, the ECHR made a ruling on former Yukos security officer Alexei Pichugin, who is serving a life sentence on charges of murder and attempted murder. According to Strasbourg's decision, Pichugin’s right to a fair trial was violated. On October 23rd, 2013, however, the Russian Supreme Court upheld Pichugin’s sentence, which, according to Moskalenko, “is in fact a direct refusal to carry out an ECHR decision.”

Vladimir Pereverzin, the former external debt chief and director of Yukos subsidiaries Rutenhold Holdings Limited and Pronet Holdings Limited, is waiting for a decision on his complaint. Pereverzin has spent more than seven years in prison on charges of “large-scale misappropriation of entrusted property by an organized group” and “money laundering by prior agreement”. The newspaper 'Sovershenno Sekretno' published excerpts from his book ‘Hostage’ (№ 5/2013), in which Pereverzin describes his years in prison. The author appealed to the ECHR in 2007. “Khodorkovsky and I have the same stories,” Pereverzin believes. “And a decision on my appeal may well be grounds for overturning the verdict against Khodorkovsky in his second case.”

Separate from these is the case “Yukos Oil Company Inc. v. Russia”. A decision had been made two years ago, but the amount of compensation that Russia must pay the company has still not been determined. The applicants demand from Russia an amount unprecedented for the ECHR — 98 billion dollars. Strasbourg still has not said the last word, but why?

Recall that in April of 2004, representatives of Yukos appealed to the ECHR to restore violated rights guaranteed by the European Convention. In July, the company re-applied to the court to support its previously filed appeal: the company did this because it had reason to expect a forced bankruptcy. The second appeal was filed by Yukos, its CEO Steven Tidy and his deputy Yuri Beilin, as well as its three Yukos subsidiaries — Yukos UK Limited, Yukos Finance BV, and Yukos CIS Investments Limited.

In 2006, Yukos was declared bankrupt, after which Russia insisted that the ECHR essentially had nothing to solve, since the company no longer existed. Thus the repeated appeals from Yukos had not been in vain.

“The Russian authorities were trying to say ‘no Yukos — no problem’ and that no one had the right to represent the company before the ECHR,” recalled Karinna Moskalenko. “The court disagreed with these arguments.”

The ECHR stated that the refusal to consider appeals from Yukos would mean “the undermining the very essence of the right of a business to file complaints, as it would promote governmental action to deprive such entities of opportunities for appeals at a time when they still have status as legal entities”.

As a result, in September of 2011 the ECHR made a decision regarding Yukos.

“The ECHR found several violations against Yukos, in particular, a violation of the right to a fair trial,” said Moskalenko. “But the most important violation it recognized was the violation of property rights. The Court noted the (Russian) government’s disproportionate actions in violation of the right of ownership during the time when the company was made bankrupt. Seizure of assets and the haste with which it was forced with bankruptcy violated the right of the company to keep property that was theirs at the time. The company had assets and intentions to use these to repay recognized unpaid taxes.  The assets would have been enough to repay the debt, and the company would have been able to continue to work.  But by seizing company accounts, the (Russian) state did not allow Yukos to pay its debts.  Hence the amount of damages caused to Yukos should logically be calculated as follows: the price of the company minus taxes, which the company could easily pay.”

The price of the company is the main subject of the discussion related to the case.

The ECHR gave parties an opportunity to agree on the size of the financial claims. Several international arbitration courts evaluated the company, including the Stockholm arbitration court. But a single estimate that could be used by Strasbourg is unavailable at this time. Nevertheless, we can expect this estimate in the very near future. According to Mikhail Khodorkovsky’s attorney, Vadim Klyuvgant: “Typically, details of such discussions are not disclosed.” Former Yukos top manager Claire Davidson confirmed the fact that negotiations are underway during an interview with ‘Sovershenno Sekretno’: “Following the ECHR decision on September 20th, 2011, Yukos used this as its basis to filing a claim for just satisfaction,” Davidson stated. “Since then, there have already been two rounds of correspondence between the court, Yukos, and the Russian Federation.” Claire Davidson was unable to clarify how much longer correspondence would continue between the parties.

The difficulty in determining compensation in the Yukos case is understandable. Damages that can be defined are so large that it could be a problem for the Russian budget. This is a first in the history of the European Court of Human Rights.

If the amount is large enough, then Russia has two choices — either to load the federal budget with additional substantial costs (and receive a risks of further litigation), or enter into a confrontation with the ECHR.  Either choice will have an effect on political relations between Moscow and Strasbourg, whether either party wants this, or not.

THE PROGNOSIS

Can Russia not pay Yukos?
Strasbourg is in no hurry to upset Moscow

By Inga Chumakova

Shareholders of the oil company consider the ECHR decision taken on their complaint two years ago to be a victory. But as of this date, victory has brought them only moral satisfaction. The amount of indemnity is still delayed, and the time period over which Russia must pay that sum to the shareholders has not been defined.  What can participants in this dispute expect at the end of this case?  Replying to questions from ‘Sovershenno Sekretno’ is Valery Kuchin, assistant professor of criminal law and criminology at the Legal Academy of the Ministry of Justice of the Russian Federation. He is an attorney representing the interests of Russian citizens before the ECHR.

SOVERSHENNO SEKRETNO: If the amount of compensation is close to what has been stated, can Russia refuse to pay? At a cost of, for example, leaving the Council of Europe?

KUCHIN: I do not think that Russia is ready to take this step, and there is really no sense in it. Under Article 58 of the European Convention on Human Rights and Fundamental Freedoms, which Russia ratified, its denunciation shall not exempt the country from earlier commitments. It literally reads: “It shall not release the High Contracting Party concerned from its obligations under this Convention with respect of any act which could constitute a violation of such obligations that may have been performed by it before the date of denunciation.” That is, even if Russia should dare to leave the Council of Europe, it would still have to pay for a lost legal case.

SOVERSHENNO SEKRETNO: But the amount may be too burdensome for the Russian budget. Is this not an argument for the ECHR?

KUCHIN: No, of course not. First of all, even if the amount of compensation is close to 100 billion dollars, which is unlikely, Russia has the money, and secondly, in the case of large compensation they provide for payment in installments.  Such a mechanism is used, for example, by Greece.

SOVERSHENNO SEKRETNO: How long can the ECHR wait until there is an agreement between the parties? At what stage will the court say that enough is enough and state the amount of compensation?

KUCHIN: According to regulations, the court may invite the parties themselves, without a judgment, to negotiate the amount of compensation over the course of three months. If they cannot resolve the issue, the ECHR returns to the suit and considers the question of compensation on its own. In the case of “Yukos Oil Company Inc. v. Russia”, for some reason this has not yet happened, but we must understand the main thing, that as soon as the amount becomes known, Russia will be obliged to pay. There is no other choice.

DOSSIER

The European Court of Human Rights (ECHR) is an international judicial body. Its member states are part of the Council of Europe and have ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms. The court was created to ensure member states observe this convention.

ECHR is located in the French city of Strasbourg, where the Council of Europe is also located. The ECHR jurisdiction extended to Russia beginning on May 5th, 1998. Complaints to the ECHR are only made against a responsible government in violation of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Court does not consider complaints against individuals and organizations.

One can appeal to Strasbourg only after all legal rights protection mechanisms within the state have been exhausted.

A complaint must be filed with the ECHR no later than six months after the issuance of a final decision (by local legal institutions) in the case.

Decisions by the ECHR are binding on a country that is a member of the Council of Europe having ratified the European Convention on Human Rights and Fundamental Freedoms.

In ‘Sovershenno Sekretno’

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