And Justice For All?

One early February morning in 1996, Navy captain-turned-environmentalist Alexander Nikitin opened the door to a group of plainclothes agents of the Federal Security Service (FSB). The agents told him he had to come with them and testify as a witness in an espionage case. His testimony took place in a solitary confinement cell of the St. Petersburg FSB jail. It lasted 10 months and eight days, during most of which he was denied a lawyer, a meeting with his wife, a doctor, or even official criminal charges.

After the FSB—the successor of the Soviet-era KGB—finally released Nikitin in December 1996, he was forbidden to leave St. Petersburg. He was charged eight times for the same crime—high treason and espionage—and indicted twice. All charges were based on secret military decrees, many of which were written only after his arrest. After four years of constant surveillance and harassment by security agents, Nikitin was acquitted, first by a local court, then by the Supreme Court of Russia. Although the decision was final, the prosecution still has until April 2001 to appeal the acquittal.

In an attempt to break through what he called “circles of hell,” in reference to Dante’s Divine Comedy, and what looked like a scene from a Franz Kafka novel, Nikitin sought a final, just resolution of his case outside of Russia. In 1999, he filed an appeal with the European Court of Human Rights (ECHR) in Strasbourg, France—as did nearly 1,000 of his compatriots, forced to seek justice elsewhere out of desperation at not receiving a fair trial in their homeland.

According to statistics provided by the European Court of Human Rights, Russia led the 41 member states of the Council of Europe last year with the most claims registered against it in the Strasbourg Court. In all, 972 cases were registered by the court against Russia in 1999—followed by 881 complaints filed that year against Italy, and 868 complaints filed against France. By the end of April, 2000, there were 830 cases from Russia pending review in Strasbourg.

SEEKING JUSTICE ELSEWHERE

Russians’ disillusionment with their home court system was so great that, complaints against Russia began to be filed “as soon as and even before” Russia ratified the European Convention on Human Rights—therefore Russia became subject to lawsuits for alleged violations of the Convention in Strasbourg, according to ECHR spokesman Roderick Liddell.

“Russians are desperately seeking justice elsewhere since the Russian justice system is deeply untrustworthy,” said a Moscow-based Western human rights activist who asked that his name not be used. “Unfortunately, the complaints [filed at the ECHR by Russians] are extremely poorly prepared, because Russians know little about the Strasbourg court and because Russian lawyers are not used to filing applications to Strasbourg.”

In fact, according to Liddell, between November 1, 1998 and April 1, 2000, 608 complaints against Russia were declared inadmissible. A vast majority of those, Liddell said, were filed for alleged violations that occurred before Russia ratified the Convention, and therefore it could not be held liable for those violations. Others, he said, were ruled inadmissible because they were improperly prepared.

It was precisely for this reason that Nikitin, whose lawyers claim the Strasbourg court has promised to hear his complaint before the year’s end, did not use the services of his celebrated human rights lawyer, Yury Shmidt, to prepare his appeal to Strasbourg. Instead, he is relying on the services of Norwegian-based lawyer Jon Gauslaa, who closely follows Strasbourg hearings and is more familiar with the procedures. Those Russians who don’t have the luxury of a foreign lawyer’s services, however, are often doomed to lose their case in Strasbourg even before it is scheduled for hearing.

That was the case of Tatyana Maslovskaya, whose appeal to the court was ruled inadmissible earlier this year. Maslovskaya, an artistic director at a major St. Petersburg television station for 26 years, was handed a pink slip after her formerly public station was hastily—and, she believes, illegally—privatized by city authorities in 1998. Along with Maslovskaya, 2,000 other employees—including her husband—were fired. After her complaint that the privatization had been conducted illegally was rejected by a local court and then by a federal court, Maslovskaya appealed to the European Court of Human Rights. In February, the court wrote back to Maslovskaya that her application had been filed with errors, including the withholding of information crucial to the court, and would not be considered by the court. Maslovskaya’s knowledge about how to apply to the European court is so lacking that, despite the official letter, she continues to hope that the court will change its mind and review her case. “I hope that there is still a possibility that [the appeal] is accepted by the Strasbourg court,” Maslovskaya said in a telephone interview from St. Petersburg. Maslovskaya denies any information was withheld and hasn’t made any changes to her application.

CORRUPTION AND CHAOS

Refusal of Russian authorities to open criminal cases against third parties is one of the major areas of complaint from Russia, Strasbourg’s Liddell says, as are complaints of the unfairness of local courts. For years, Russia has been waiting in vain for judicial reform, which would better finance and organize courts to deal with the country’s high crime rate. Today the courts are funded from meager federal coffers, but it is not illegal for regional governments to kick in hefty sums of money to the courts located on their territory, as well as provide them with new, freshly renovated buildings and equipment. And regional authorities are usually happy to do business with courts that are friendly.

For example, in 1997, St. Petersburg Governor Vladimir Yakovlev unilaterally increased funding for the city’s courts by $2.33 million, using his “gubernatorial reserve fund”—an unmonitored slush fund that can be used to augment any line item in the city budget. The year after that, the money allocated by the federal government for the St. Petersburg court system—apart from salaries—by the federal government was just under $17,000. Coincidentally or not, City Hall has yet to lose a significant case in the local courts. Meanwhile, in big cities like Moscow and St. Petersburg, the rise of crime and the shortage of judges makes the judges’ hearing schedules resemble suburban train timetables, with a new court session often scheduled to begin every 10 minutes. In 1999, a St. Petersburg judge became an invalid and had to retire after hearing 800 criminal cases in 120 days. Court schedules are logjammed for months to come, and accused criminals sit imprisoned without a trial for years in overcrowded and TB-infested pre-trial detention centers, often sharing one bed with up to four other inmates. According to Diederik Lohman, head of the Moscow office of Human Rights Watch, it can take a Russian court up to three years to hear a criminal case, while the accused bides his or her time in jail. To change the state of affairs, the Russian court system must be “urgently remodeled,” Lohman says.

In these circumstances, many Russians view the ECHR at Strasbourg as a ray of hope. Liddell says Russians complain about everything from conditions of detention and non-execution of judgments, to non-payment of salaries and pensions, to the impossibility of retrieving savings from accounts, both in private and state banks, to general complaints about living conditions. According to Nikitin’s main lawyer, Shmidt, the amount of complaints received by the European court from Russia so far is “tiny” compared to the human rights violations that take place here. “This is just the tip of the iceberg, of [appeals filed by] the more sophisticated Russians who know about Strasbourg today,” Shmidt says. “When the opportunity of suing the state becomes common knowledge in Russia, the Strasbourg Court will collapse under the burden of complaints from this country.”

According to Moscow-based Human Rights Watch researcher Malcolm Hawkes, the Strasbourg court will soon be showered with complaints lodged by victims of Russia’s military campaign in Chechnya. The first such case was filed in April by a Chechen nurse, Sasita Khasmagometova, who claimed that in February federal troops ordered her medical team and a number of wounded patients to evacuate their hospital in the Chechen capital, Grozny, and then subsequently beat or arrested them. “We expect the number of [cases like that] to multiply very rapidly, because we doubt that complainants from Chechnya will get any vidication within Russia,” says Hawkes, adding that no one was convicted of human rights violations committed during the Chechen war of 1994-1995. Human Rights Watch, along with other international activists, has repeatedly reported human rights violations in Chechnya.

UNDERESTIMATING STRASBOURG

Meanwhile, the first case from Russia has yet to be formally accepted and heard by the Strasbourg court, Liddell says. This is only natural, since Russians only received the opportunity to have their cases heard in Strasbourg last September, when the Council of Europe finally elected a Russian representative, Anatoly Kovler, to the Court’s panel of judges—and it takes at least a year for the court to decide whether or not a case should be accepted. Little is known about Kovler, who has taught Russian and Constitutional Law in Italy, France, the United States, and Switzerland; according to Nikitin’s lawyer Gauslaa, who closely monitors the work of the Strasbourg Court, Kovler has so far not taken part in many hearings at the Court. “That is only natural since he was appointed in September 1999, and the proceedings in most of the cases that have been handled by the Court up until now, had started before that date. In the few cases he has taken part in, he seemed, however, to have voted with the majority,” Gauslaa says. He also says that there is no reason to believe that Kovler’s judgments will be “unjust,” although, “it will be interesting to see how he acts when he takes part in the first case involving Russia. Judges of many countries, including Norway, have a tendency to overlook the principles of the law, and instead try to protect national interests when the case involves their own country. However, that does not usually have much impact on the other judges’ evaluation of the case.”

When the Strasbourg Court finally hears its first case against Russia, the country “is going to be sorry for joining the Council of Europe,” Shmidt says. “Russia is absolutely unprepared to take responsibility for its illegal activities,” he says. “Russia’s joining the Council of Europe was a very hasty thing to do. Deputies of the State Duma [lower house of the Russian parliament] thought joining the Council of Europe would give them four annual trips to Strasbourg at taxpayers’ expense.”

In the past, Russia has not demonstrated a willingness to comply with the rules of behavior of the member states of the Council of Europe. The Council’s threats to suspend Russia’s membership if it did not cease its offensive in Chechnya were met with hostility, and although the country allowed international observers to travel to the disputed republic of Chechnya, Russian politicians did not welcome the observers’ remarks and recommendations. If Russia does not comply with the rulings of the Strasbourg court, the country could very well lose its membership in the Council. “Politicians, who care only about prestige, had no idea how Russia was going to carry out the decisions of the Strasbourg court, or that we will have to make our justice system meet European standards. We’ll see how they react when Russia is ordered [by the ECHR] to pay its first $50,000 compensation,” Shmidt says.

Anna Badkhen is a freelance journalist based in Moscow This article originally appeared in Transitions Online (website: www.tol.cz) and is reprinted here with permission.