Did we solve the caseload problem? Russia’s exit from the European Court of Human Rights
The European Court of Human Rights has a caseload problem and a budget problem. From the more than 800 million residents in the 47 member states of the Council of Europe (the Council), the Court every year receives more submissions than it has the resources to deal with. This has affected both the timely delivery of judgments and the Court’s ability to ensure the execution of those judgments in the member states. Until recently Russia represented a particular headache: a difficult member with regard to execution of judgments and an unreliable budget source, Russia has also contributed to the Court’s huge backlog of cases after failing to ratify Protocol 14 in the early 2000s. Russia’s imminent exit does not, however, ease pressure on the Court.
Leaving the Council of Europe
On 10 March 2022, Russia’s foreign minister announced that it would no longer cooperate with the Council of Europe. On 15 March this statement was followed by an official withdrawal from the Council under Article 7 of its Statute, a move that was predicted in late February when the Committee of Ministers decided to suspend Russia’s rights of representation in response to the invasion of Ukraine. Also on March 15, the Council’s Assembly adopted an opinion that Russia should be expelled from the Council, making it clear that the Russian Federation will not be missed.
The move will have troubling consequences for anyone on the receiving end of Russian human rights violations, not least people in Ukraine and in Russia, who will lose the opportunity to bring Russia before the Court six months after the withdrawal announcement (Article 58(1) of the Convention). Additionally, Russian authorities have suggested that the move will allow Russia to reintroduce the death penalty. This blogpost, however, focuses on the consequences of the withdrawal for the European Court of Human Rights, and its key institutional role.
Let’s talk about money
When Russia discontinued funding for the Council of Europe in 2017, in response to criticism it faced over the invasion of Crimea, this was a major blow to the economy of both the Council and the Court – especially because it coincided with Turkey’s withholding of payments over the awarding of the Vaclav Havel Prize to the imprisoned former judge Murat Arslan. Equally, it was a relief when Russia resumed regular payments in 2019. When Russia does pay its membership fee, set at €33 million per year, it is the fifth largest contributor to the Council budget after France, Germany, Italy and the United Kingdom. It is also, however, one of the big spenders of Council funds, under the largest budget post, namely the Court. Russia thus pays around 10 percent of the ordinary membership contributions, but nearly a quarter of pending applications in 2021 were lodged against Russia.
In the long term, then, Russia’s withdrawal may ease the burden on the Court thanks to the higher per-case budget that results. In the short term however, the situation will be the exact opposite. Withdrawal from the Council of Europe should take effect at the end of the financial year (Article 7 of the Statute) but in practice the Council is unlikely to receive this year’s payment from Russia given that it could not compel Russia to pay even when it was a member.
Both to adhere to its own statute and to maintain a record of human rights violations in Ukraine and in Russia – for example, in connection with the many arrests made at anti-war protests – the Court will probably remain open as long as possible to applications with Russia as the responding state. It is also highly likely that the Court will receive at least some inter-state cases against Russia before the six-month notification period is up. Further, the Court will keep hearing the cases against Russia in its backlog, since withdrawal does not remove a state’s obligations retroactively (Article 58(2)) of the Convention. In principle, the Court’s Russian judge should also remain at his post for six months. All these costs will have to be met without the benefit of the Russian contribution.
Due to Russia’s previous withholding of funding, the Court and the Council have experience dealing with volatile income streams. There are two potential problems, however. First, in the previous budget crisis it proved extremely difficult to convince other member states to increase their contributions to make up for the missing €33 million. Second, Russian actions in Ukraine and at home can be expected to increase the need for human rights interventions from an institution such as the Council of Europe. In this regard it is important to note that the Court accounts for €74.5 million of the Council’s ordinary budget of €255 million, the rest being allocated to preventative programmes, good governance programmes and information gathering missions. All of these will now cease in Russia, at a time when they are especially needed.
The Court’s potential role in transitional justice
The European Court of Human Rights can expect a record number of incoming cases in 2022, as human rights abuses proliferate and Russians and Ukrainians alike rush to bring cases against Russia before the six-month deadline. Thus, the Court, despite its diminished budget, will likely be tasked with an important role regarding human rights abuses perpetrated in connection with the conflict. This is not a role for which it was designed – it is not a criminal court – but one for which it is well placed.
In brief, there are two transitional justice functions the Court could perform: as fact-gatherer and record-keeper (the right to truth), and as an assisting or guarantor entity (the right to justice). While usually transitional justice courts or commissions have started their work only after the fact (Rwanda and South Africa) or in the midst of conflict (Yugoslavia), the European Court of Human Rights has the advantages of a well-established practice and of being well known among the affected populations (civil society organisations in Ukraine and Russia bring thousands of cases to it every year). Therefore, the Court is likely to receive applications and documentation of crimes as they are taking place rather than after the fact, which is much better in terms of standards of evidence.
Unfortunately, due to its backlog, over the years the Court has adopted a strict practice of rejecting all cases that fall outside jurisdiction or which have not exhausted domestic remedies. There is therefore a real risk that all this valuable documentation of crimes and abuses during the current conflict will end up in the vast piles of inadmissible cases, never to see the light of day.
To avoid this happening, the Council’s member states must increase their contributions to allow the Court to handle its heavier caseload and to deliver on the record-keeping task with which it is likely to be entrusted by victims of rights abuses. This includes securing fact-finding missions of the Commissioner for Human Rights.
The required contributions will be small in comparison with the overall cost to member states of the economic sanctions being placed on Russia. But they can make a critical difference for the rule of law, preparing the ground for transitional justice efforts once the day arrives when a reformed Russia re-joins the Council. After all, Greece left the Council in 1969 but returned five years later, having rid itself of the military junta. There is hope that Russia, once rid of its despot, will do the same.
Helga Molbæk-Steensig is a PhD researcher in the Department of Law. Her thesis looks at how institutional and political pressures on the European Court of Human Rights may impact treaty interpretation. She has published on reforming the Court, the role of AI in insuring the right to a fair trial, human rights protection in Kosovo and human-rights based governance in relation to the Covid-19 pandemic.