12 March 2015
Lawyers, applicants to the ECtHR and experts taking part in the discussion included Karinna Moskalenko, Maria Samorodkina, Elena Nakhimova, Svetlana Gladysheva and Ilyas Vakhitov.
As is well-known, execution of the judgments of the European Court of Human Rights involves the adoption by states, firstly, of measures of an individual character for the purpose of removing the consequences of violations against the applicant. Secondly, execution involves introducing measures of a general nature for the purpose of preventing similar violations of the Convention in the future. And if the issue is approached from these general positions, then it must be recognized that since 1998 when Russia became a signatory of the European Convention on Human Rights and Fundamental Freedoms, our country has fully executed only a small number of rulings by the ECtHR.
As Karinna Moskalenko pointed out, an application to the ECtHR ‘against Russia’ is sometimes incorrectly interpreted as directed against one’s own country, as ‘unpatriotic’. At the same time, head of the projects at the International Protection Centre stated:
“In reality, we don’t in any way detract from the role of the state, but only seek to stimulate it into defending its own citizens without waiting for problems to be resolved at the international level. We apply on behalf of our state because we are helping the development of Russian law-enforcement practice and the judicial system so that the rights of each person as laid down in the Convention are protected above all at the national level.
"The decisions of the European Court of Human Rights are obligatory for the Russian Federation since the European Court is as much Italian as Russian, and as much Finnish as Russian, and as Georgian as it is Russian. This is a court of all 47 states that are members of the Council of Europe, it is a common court for all member states. It was created not to punish one state or another, but to protect the rights of each and every citizen of the 47 states that are members of the single home, where there exists a single standard for the minimum protection of human rights.
You cannot apply to the European Court if you have not exhausted all effective means of legal defence within a given country. And only when, in the name of the Russian Federation, a final court rules in a manner incompatible with the European Convention can the mechanism of the European Court start to work.
“The decisions of the European Court serve to improve the situation where it can be shown that a violation of human rights results from a bad law, or from bad law enforcement practice, that it is possible and necessary to put right – in the interests of Russian citizens.”
Svetlana Gladysheva gave a specific example of the consequences of bad law and gaps in legislation. In 2005 she purchased an apartment, but four years after the acquisition officials discovered that the initial privatization of this and a number of other properties had been carried out by means of falsified documents. Those responsible for the fraud were not found, the court ruled that while the new owner of the apartment had acquired it in good faith, nonetheless the property should be returned to public ownership and the owner should be evicted without compensation or offer of other accommodation.
In 2012 году the European Court ruled in the case of Svetlana Gladysheva that those who buy apartments and other property that was at one time in public ownership cannot be held to answer for the legality of the procedures by which they were initially privatized and subsequently resold.
Photo (c) Vera Vasilieva, HRO.org. From left to right: Ilyas Vakhitov, Svetlana Gladysheva, Maria Samorodkina, Karinna Moskalenko
"As a formal basis for the seizure of apartments from citizens and their eviction into the streets, government agencies rely on the fact that formerly these apartments had been stolen from government property. At the same time it is recognized in practice that the citizens whose apartments are confiscated have no relation to the theft. Property is being taken away without any compensation from completely innocent people,” Svetlana Gladysheva said.
Another aspect of the problem, in her opinion, is that the theft of the apartments from public ownership did not happen without a certain connivance on the part of “public officials who are responsible for the maintenance and use of public property,” including “representatives of the law enforcement agencies, of housing organizations and staff of passport-issuing offices.”
Moreover, according to Svetlana Gladysheva: “An important role in the legalization of stolen apartments is played by the wrongful execution by state registration bodies of their direct duties in registering apartments. The courts without any doubt have confiscated and continue to confiscate apartments from citizens and return them to public ownership. At the same time, in the great majority of cases the representatives of the state, directly or indirectly involved in the theft of the apartments, are not held responsible for their actions in any way.”
Ilyas Vakhitov also pointed out that in the great majority of cases apartments are confiscated from people who have purchased them in good faith.
“This is not merely unfair, it is wrong from the point of view of law,” he said. “The courts in taking such decisions must abide by the Constitution and also by the European Convention of Human Rights and Fundamental Freedoms, because the latter is an intrinsic part of our legal system.”
The lawyer Elena Nakhimova said that the root of the problem lies in the imperfection of Russian law. Russian law does not contain any adequate definitions, in particular, of a ‘purchaser in good faith’:
“What does ‘in good faith’ mean? A judge sitting in one Moscow district court has one view of ‘good faith’, but a judge sitting in another district has a different view. Judicial practice urgently requires clarification of this term. Lack of good faith, paradoxically, is easier to define.”
A lawyer with the International Protection Centre, Maria Samorodkina, agrees with her. She gave as an example the case of Stolyarova v Russia.
On 29 January 2015 the European Court of Human Rights issued a judgment which held that there had been violations of Protocol No. 1 (‘protection of property’) to the Convention on Human Rights and Fundamental Freedoms and of Article 8 (‘right to respect of private and family life’) of the Convention.
The European Court of Human Rights concluded that the apartment the applicant had acquired had been privatized by means of fraud, but ruled that government agencies should have established that this fraud had taken place. And that the applicant was a purchaser in good faith since she could not and need not have known about the existence of these problems.
“In this case the European Court repeats the conclusions it came to in the case of Gladysheva,” Maria Samorodkina commented. “Either there is a gap in the law, or a failure in law enforcement practice. The Court says: respected Government, you have this problem; resolve it, please. How you resolve it is up to you. Solutions in terms of current Russian law do not exist,”
“Judges are not heroes, they want to make decisions on the basis of national law that is well written,” Karinna Moskalenko added. “As a result of these gaps in national legislation the European Court of Human Rights at first makes hundreds of similar rulings on similar applications, and then finally issues a so-called ‘pilot’ decision. In these cases the applicants can appeal to the European Court of Human Rights under a simplified procedure, citing the precedent (for example, the case of Gladysheva) to show they have no effective means of legal redress in Russia. And the Court proposes that the Government, in a certain timeframe, does not investigate the case, but simply pays compensation to the applicant.”
Karinna Moskalenko points out that such an approach concerns not only those cases concerning apartments, but also the conditions in places of detention and torture: “For the state it is very insulting if the Court finds that torture at the time of detention and preliminary investigation is a systemic issue. And we shall continue to work to bring our message home in this way, via Strasbourg, so that we can reach the heart, mind and conscience of our authorities.”
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