Naturally, over the more than fifty years of the European Convention's existence, its text has undergone a series of changes. The list of rights and freedoms to be protected expanded, and the work of the control mechanism – the Commission on Human Rights and the court – improved. Changes were formalized in the form of protocols. The protocols enshrining new rights and freedoms entered into force for the states that ratified them, even if some Council of Europe countries refused to join them. For example, if Austria, Greece, and Russia do not consider it possible to protect their residents from all types of discrimination, that does not mean that Croatia, Finland, and Ukraine should not do so.
The situation is different with protocols that introduce changes to the operating procedures of the control mechanisms. Their entry into force requires the consent of all states. Otherwise, two different supervisory bodies operating under different rules would have to be created. This is, on the one hand, expensive, and on the other hand, impossible within the framework of a single international organization such as the Council of Europe.
The last reform of the Council of Europe's control mechanisms was carried out in 1998 with the adoption of Protocol No. 11 to the Convention. The Commission on Human Rights, which had served as an intermediary between complainants and the European Court, was abolished – applicants began to communicate directly with the court. New rules for examining complaints were adopted, and the court still operates under them.
Currently, a received complaint is processed by the secretariat's lawyers. They study the submitted documents, if necessary request additional information from the complainant, and prepare the material for consideration by the judges. If it is obvious from the content of the complaint that it falls outside the court's jurisdiction – for example, when it concerns rights not guaranteed by the Convention – the materials are submitted to a committee of three judges. There, proceedings are held in a closed session. The committee decides on the inadmissibility of the complaint. This decision is final and cannot be appealed.
When a complaint does not appear manifestly inadmissible, it is referred to a chamber of seven judges, which informs the state against which it was filed of its content. The state is asked to respond to the judges' questions and to submit any comments and documents. The government's responses are forwarded to the complainant. He has the opportunity to challenge them. Based on the correspondence between the state and the complainant, the chamber either declares the complaint admissible – that is, falling within the court's jurisdiction and subject to further examination – or rejects it. A decision of inadmissibility taken by the chamber is also not subject to appeal or review.
If the complaint is declared admissible, the chamber offers the complainant and the respondent state to settle the dispute amicably. If this does not happen, consideration of the case on the merits begins. For this, the parties must once again present their arguments. Following the proceedings, a judgment is issued either finding that the state violated the rights and freedoms enshrined in the Convention or finding no violations. The parties are given three months to appeal the judgment to the Grand Chamber. Final judgments are binding on the states, and their execution is monitored by the Committee of Ministers, which includes representatives of all Council of Europe countries.
By the end of the 1990s, the need for a new reform of European human rights protection mechanisms became obvious. The expansion of the Council of Europe opened access to the European Court for residents of former Eastern Bloc countries, and they did not fail to take advantage of it. The number of complaints began to grow rapidly, but approximately 90% fell outside the court's jurisdiction. There were fears that the court would simply be overwhelmed by the flood of applications. In 2000, a conference of ministers of Council of Europe countries recognized the need for urgent measures to improve the court's work.
There were not many options for solving the problem. The court's secretariat could be expanded and the number of judges increased, but this required large financial investments that states were not prepared to make. Regional courts could be created in different parts of Europe to take on part of the workload, but this would pose a threat of splitting the single legal space of the Council of Europe and creating inequality among residents of different regions. Restricting the right to apply to the court would be a rejection of the fundamental principle of the Convention, which once revolutionized international law by breaking the monopoly of governments on international justice. The procedure for examining cases in the European Court could be simplified, at the risk of compromising the quality and objectivity of judicial decisions. In the end, a compromise solution was found: to introduce an additional condition for accepting complaints and to simplify the process of weeding out complaints that are manifestly outside the court's jurisdiction.
It is assumed that the court should only accept cases in which there is a significant disadvantage. The criteria are expected to be shaped by practice. Such trust in the court is justified: over several decades of work, this body has developed an extensive system of precedents that fill the abstract norms of the Convention with concrete content.
The process of examining complaints that are highly likely to fall outside the court's competence is proposed to be entrusted to a single judge rather than three. All complaints containing any well-founded claims against states should continue to be examined collegially. The procedure for dealing with repetitive cases is simplified. For example, if several judgments have already been delivered on discrimination against Russian speakers in Lithuania or on non-enforcement of court decisions in Russia, then subsequent decisions on such cases should be made not by a chamber of seven judges but by a committee of three.
To prevent the proliferation of similar cases, it is proposed to strengthen oversight of how states implement court decisions. Currently, this is monitored by a political mechanism – the Committee of Ministers of the Council of Europe. It is proposed to add a legal mechanism: at the request of the Committee of Ministers, the Grand Chamber of the European Court would assess the implementation of decisions.
All these changes were intended to be introduced through Protocol No. 14, the text of which was approved by the ministers of the Council of Europe countries and opened for ratification on May 13, 2004. Russian representatives in Strasbourg spoke approvingly of Protocol No. 14. Shortly before Russia assumed the chairmanship of the Council of Europe, on May 5, 2006, it signed the protocol. The Russian Foreign Ministry stated that "Russia intends to actively promote the reform of the European Court of Human Rights." Three weeks later, State Duma Chairman Boris Gryzlov, speaking at a meeting of the Bureau of the Parliamentary Assembly of the Council of Europe, noted that Protocol No. 14 had already been signed and declared: "We will work toward the speedy ratification of this document by the State Duma."
Since both Russia and other countries expressed support for Protocol No. 14, all Council of Europe bodies, including the Court, began preparing for the reform. It was expected that the protocol would enter into force in early 2007. By the end of October, all countries had completed the ratification process. It was expected that Russia would quickly join the others.
However, contrary to all given promises, the Duma refused to adopt the law on the ratification of Protocol No. 14. The Duma Committee on Civil, Criminal, Arbitration and Procedural Legislation, as well as the Committee on Constitutional Legislation and State Building, issued negative conclusions. As a result, only 27 deputies voted for the ratification of Protocol No. 14, while 138 voted against. Deputy Vladimir Ryzhkov claims that the executive branch used the Duma to refuse the court reform while saving face. In reality, the Kremlin wants to limit the ability of its citizens to appeal to European justice. Others, such as Deputy Klimov, believe that anti-European sentiments in the State Duma are not formed under pressure from the Kremlin – "they are essentially rotten."
The refusal to ratify looks strange. At the very least, it can be said that the officials responsible for presenting the bill and Boris Gryzlov, who promised to resolve the ratification issue, did not explain the meaning and significance of this document to the deputies. In any case, such a thought is prompted by the statements of individual deputies made at Duma meetings when the issue of ratifying Protocol No. 14 was discussed. For example, at the meeting on December 13, Gennady Zyuganov declared bias in law enforcement practice in Europe. At the same time, for some reason, he cited the example of the Hague Tribunal, which has nothing to do with the European Court of Human Rights. Then, LDPR party leader Vladimir Zhirinovsky said: "We will under no circumstances give our votes for the ratification of these amendments, because the European Court has brought no benefit to the citizens of the Russian Federation, but on the contrary, judicial procedures are used against Russia. They are trying to impose fines on us in cases that have no legal basis, only a political subtext." Apparently, Zhirinovsky forgot that the vast majority of European Court decisions concerning Russia related to non-payment of pensions and social benefits awarded by Russian courts, or he believes that protecting a Russian pensioner is a purely internal matter.
The objections to Protocol No. 14 voiced by the two Duma committees boil down to the claim that transferring the authority to declare complaints inadmissible to a single judge and adding such a ground for refusal as the absence of significant harm will lead to the politicization of the court.
Thus, Russian deputies do not like the work of the European Court in its current state, but they refuse to reform this body. Meanwhile, if reform does not happen, the court will continue its work. It will still issue rulings concerning Russia, and it is unlikely that these rulings will differ significantly in content from those that currently irritate the parliamentarians. By refusing to ratify Protocol No. 14, the Duma will not prevent but only hinder Russians' access to Strasbourg justice. And at the same time, it will hinder access to the European Court for thousands of residents of other European countries. Apparently, the deputies believe that the protection of human rights is going well not only in Russia but also in other parts of Europe – in Ukraine, Georgia, and the Baltic states – and that citizens of these states, like Russians, have no need for European justice.
Olga SHEPELEVA.
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