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Деградация международного правового порядка? Реабилитация права и возможность политики. My book in Russian, buy electronic copy from Litres.ru

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Деградация международного правового порядка? Реабилитация права и возможность политики

Blog: Is Russia a European country?

Bill Bowring: Is Russia a European country?

6 September 2021

by Bill Bowring, Professor of Law at Birkbeck College, University of London, where he teaches public international law, human rights and minority rights. https://www.rightsinrussia.org/bowring-2/


It is too often asserted that Russia is not a “European” country: not necessarily by the Brexiteers who are certain that Britain is not European either, but “global”. 

True, from 1237 to 1480, with the battle known as the Great Stand on the Ugra River, what is now Russia paid tribute to the Mongol-Tatar Horde. For a graphic depiction of what this meant, see Tarkovsky’s great film Andrei Rublev. The tribute was paid with regular visits to the Tatar capital in the steppe (better for horses), and Russian rulers intermarried with the Tatar elite. To this day the Russian language has many Turkic – the Tatar language, the historic tongue of 5 million Tatars in Russia, is Turkic – words, for important things, especially in the 13th to 15th centuries, like horse (loshad), kazak, guard (karaul), treasury (kazna), money (denga), brick (kirpich), watermelon  (arbuz), shoe (bashmak), etc 

For the rise of Moscow, Eisenstein’s Ivan the Terrible cannot be bettered. Only 50 years after the defeat of the Tatars, Ivan IV became ruler of Moscow in 1533, of Russia in 1547 and in 1552 conquered Kazan, now the capital of Tatarstan, razed the Qul Sharif Mosque (now splendidly rebuilt) to the ground, and constructed St Basil’s cathedral in Red Square to celebrate. 

However, Ivan did not only look eastwards. In 1570 he was furious (the letter is on the internet) when Queen Elizabeth I rebuffed his offer of a strategic marriage: England was building a maritime empire, Moscow a continental empire. Serious trade between England and Russia had begun with the Muscovy Company in 1551.

Indeed, Britain and Russia have been on the same side of every serious war – Napoleon, WWI, WWII – since then. Alexander I marched all the way to Paris in 1814, defeating Napoleon on the way, with generals named Barclay de Tolly (Scots/German) and Wittgenstein. The exception is the Crimean War (1853-1856), and no student, English or Russian, can tell me what this war was about. Britain and Russia did not even come to blows in Central Asia, and both failed to conquer Afghanistan. Britain lost a whole army at Kabul in 1842. 

The greatest Tsar of Russia was Catherine II, a German princess, there are even more German family names than Scots and Welsh. Many Russians have the family names Gordon, Hughes, Williams – Scots and Welsh who built the railways, married Russians and stayed. 

I’m a lawyer. The founder of law as an academic discipline in Russia, Semeon Desnitsky, spent six years in Glasgow, studying constitutional law under Adam Smith, and becoming Catherine’s chief legal adviser. In the mid 19th century Russian civil law was based on German law, and restored in the NEP period after 1917; Alexander II initiated jury trial on the English model, an independent bar, and “justices of the peace” in 1864, all restored since 1991; the present Civil Code was drafted with Dutch experts, the Constitutional Court of the Russian Federation is based on the German Verfassungsgericht in Karlsruhe. Russia is a member of the Council of Europe since 1996 and party to the ECHR since 1998.

Russia is not European? Then neither is Britain, the latter suggestion being more convincing.

TRANSFORMATION IN LAW AND ADVOCACY: ADVOCACY FOR WHOM AND WHAT KİND OF? Presentation at the Paris Symposium for Ebru Timtik, 3 April 2021

Bill Bowring, Professor of Law, University of London, Barrister of England and Wales, President of the European Lawyers for Democracy and Human Rights.

We are here to commemorate the tragic death in prison of Ebru Timtik, on hunger strike in protest against the absence of a fair trial for her in Turkey. She was a brave fighting lawyer.

Here is my answer to the question for this session.

I am a revolutionary socialist who happens to have become qualified as a lawyer. I seek to use my skills as far as possible in the class struggle, especially struggles for self-determination. I have written a lot about this.

So my own history might be of interest, to show what I mean.

I did not qualify at first as a lawyer. When I was 16-17, already a communist, I worked on a small cargo ship around West Africa and the East Coast of the USA. This opened my eyes to the reality of European colonialism in Africa, and I participated in New York in the March of a Million against the Vietnam War.

The following year, 1968, I was a protestor against the Vietnam War, at the Democratic Convention in Chicago, as a member of the Students for a Democratic Society (SDS).

My degree from 1967 to 1970, at Kent University, was in Philosophy. I was a revolutionary socialist, first in the Revolutionary Socialist Students Federation, and for a period in 1972, the high point of the class struggle in England, I was a full time revolutionary in the Workers Revolutionary Party, organising coal miners.

In England it is possible to qualify as a lawyer in just two years, which I did from 1973-1974.

I lived for 15 years in Brixton, South London, from 1974, and served as a volunteer adviser in the Brixton Advice Centre. I was “called to the Bar” in 1974, and in my first cases as a barrister I represented housing squatters, and campaigned against the proposed law criminalising squatting.

In 1978 I was elected as a Labour Councillor in Lambeth which includes Brixton. There were several black councillors, and a black Mayor.

I was involved in the Brixton Riots in 1981, when Brixton was under a state of siege from the police, and in 1985 when the police shot a black woman in bed.

In 1986 I and my Council colleagues were prosecuted by Mrs Thatcher for “wilful misconduct”, for taking illegal action against her policies, fined £160,000, and banned from holding public office for 5 years. We raised the money through the Labour Party and trade unions.

Since that time I have been active in the Haldane Society of Socialist Lawyers.

From 1986 to 1990 I represented victims of police misconduct: wrongful arrest, false imprisonment, torture, malicious prosecution. These cases were mostly cases of racist attacks on black people and the working class.

In 1988 I was sent on a mission to Palestine, and first saw the relevance of human rights law and the law of armed conflict. I have returned to Palestine many times.

Since 1991 I have been closely involved in the struggle against the British occupation of Northern Ireland, in the armed conflict which lasted from 1969 to the 1998 Good Friday Agreement. Marx and Engels strongly supported the fight for Irish independence. I fight for the reunification of the Island of Ireland.

I began teaching, at the University of East London, in a working class district, in 1990. Starting in 1992, I worked as a volunteer with the Kurdish Human Rights Centre, and represented Kurdish applicants at the European Court of Human Rights: Özgur Gundem v Turkey, Aktas v Turkey, ipek v Turkey and many others. Since 2000 I have been representing Chechen and other victims of Russian violations of the ECHR.

I agree with Marx and Engels that there can be no socialist law, nor can there be socialist legal theory. The law is made by the capitalist state, and is an instrument of the ruling class in the class struggle.

Workers can and must, however, advance legal demands. In their time this was the fight for a ten hour day, to be enforced by law. To do this they need the services of competent lawyers

In my opinion lawyers cannot be a revolutionary vanguard, but there can be revolutionaries who are lawyers, just as there can be revolutionaries who are accountants, or doctors. Or even capitalists, like Engels. But I am not sure what a “revolutionary lawyer” would be. Probably a bad lawyer.

The workers or any people involved in struggle against capitalism, or suffering persecution or injustice, may need a competent lawyer. That is what we try to offer in the Haldane Society. We played a particularly important role in the Great Miners Strike of 1984-5. Now we are involved in many struggles – there is resistance all over Britain.

But I don’t think law can be transformative or emancipatory. That is the role of the working class in the class struggle. Lawyers are competent technicians, serving the working class.

The reception or the lack of it, of the concepts of Rudolf von Jhering in the English speaking world

Outline of Bill Bowring’s presentation

Ivanovo State University, Russia, 25 September 2020

The Struggle for Law by Rudolf Von Jhering | Waterstones
  1. There are only two translations of Jhering’s work in English. Jhering’s masterpiece, Geist des römischen Rechts (The Spirit of Roman Law) 1852–1865, in two volumes has never been translated. The two translations are Der Kampf ums Recht (1872) and Der Zweck im Recht (1877–1883).
  2. Both were published in the USA, the first as The Struggle for Law, translated from the 5th edition by the attorney John J. Lawlor, and published in Chicago in 1879. There is a facsimile edition published in 2017. The second was published as Law as a Means to an End, translated by Isaac Husik, and published in New York in 1913, with a reprint in 1968. This is hard to find.
  3. Nevertheless, I have found at least 20 scholarly articles in English in which Jhering is mentioned, and in some of which his work is discussed in detail.
  4. What is the nature of Jhering’s contemporary reception? And why have the two English translations appeared only in the United States?
  5. The reason is to be found in an article published in 2012 in the Tulsa Law Review, by three scholars at the University of Connecticut and Fordham Schools of Law, Julie Grisé, Martin Gelter, and Robert Whitman. Their article is entitled “Rudolf von Jhering’s influence on Karl Llewellyn”, that is, Jhering’s influence on the American Realist Legal School. Karl Llewellyn (1893 to 1962) was fluent in German, and indeed fought on the German side in WWI, winning an Iron Cross. He is best known for The Bramble Bush: On Our Law and Its Study, 1930, republished in 2009 by OUP.
  6. This school no longer dominates US jurisprudence, but the authors cite President Obama, a lawyer, in 2009 in relation to an appointment to the Supreme Court: “Iwill seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book, it is also about how our laws affect the daily realities of people’s lives, whether they can make a living, and care for their families, whether they feel safe in their homes, and welcome in their own nation.” Realism!
  7. What was this influence?
  8. First, according to the authors of the article, was Jhering’s crusade against conceptual jurisprudence – his campaign against the use of “heavenly concepts” to solve real problems, and juristic work driven by purpose, not invisible concepts. For Jhering, the life of the law was experience, not logic: law had to be functional.
  9. Second, Llewellyn leaned about purposive interpretation from Jhering. The language of a statute was relative, not absolute, must be understood in terms of its context: law was a means to preselected social ends.
  10. Third, Llewellyn’s views on the judicial function – that law is merely a prediction of what the courts will really do.
  11. The American Realist School has in turn had a profound influence on Critical Legal Studies, which remains a major school of jurisprudence in the US and UK.
  12. One aspect of this is the “indeterminacy thesis”, which emerged as a left-wing reply to Ronald Dworkin’s contention that there is a “right answer” to each legal problem.  In its strongest form it is an extreme version of legal realism. It argues that nothing is law until it has been promulgated by an official – either a judge or the legislature.
  13. Duncan Kennedy of Harvard Law School is a leading Critical Legal scholar. In an article published in 2000 in the Colombia Law Review, on Lon Fuller, placing Fuller’s analysis of contract questions in the context of the critique of the 19th century will theory of contracts, and the rise of sociological jurisprudence and legal realism.
  14. In a footnote Kennedy says: “Between 1972 and 1975, I read Rudolf von Jhering’s The Spirit of Roman Law (in French translation) because Fuller had cited it. Jhering’s seemed to me a much better, indeed an unutterably brilliant, take on the issues Fuller discussed, and this greatly reduced my admiration for Fuller. My article downgrades him for this reason.”
  15. Interest in Jhering is not only to be found in the US. In 2009 Neil Duxbury, now Professor of English Law at the London school of Economics, published an article in the prestigious Oxford Journal of Legal Studies entitled Jhering’s Philosophy of Authority. His starting point was that during the 20th century Anglo-American legal philosophers saw Jhering either as the German forerunner of American legal realism, or as an early proponent of a jurisprudence of interests. In Duxbury’s view Jhering’s goal was rather to explain how legal systems originate, and how they maintain authority. His originality was in the concept of Rechtsgefühl, that authority depends on citizens’ feelings of what is right and just. He believed that the authority of a legal system depends on its ability to negotiate and accommodate struggles based on feelings of right. Struggles between citizens, between citizens and the State, and between States.
  16. My curiosity was aroused by the following.
  17. In the Kampf,  Jhering is full of praise for the “combative Englishman” – “the typical figure of the travelling Englishman who resists being duped by inn-keepers and hackmen, with a manfulness which would induce one to think he was defending the law of Old England.. For, in the few shillings which the man here defends, Old England lives.” (p. 62)  and later “in the shilling he stubbornly defends the political development of England lives.” (p.94) All of this is to illuminate the “healthy feeling of legal right”.
  18. In the Zweck, I noted Jhering’s powerful critique of the liberalism of John Stuart Mill (p 403 to 409), having denounced socialism and communism as “vain folly” (p.396) and referred to “so-called class struggle” p 410. To me the Zweck seems curiously detached even from the world of the second half of the 19th century, and most references are to Roman law.   

Igor Shoikhedbrod “Revisiting Marx’s Critique of Liberalism: Rethinking Justice, Legality and Rights”, reviewed by Bill Bowring

Igor Shoikedbrod has given us a strongly argued and rigorous engagement with Marxist theory, which is – in the opinion of this reviewer – a great pleasure to read, and from which there is much to learn. However, the title is perhaps misleading. Marx never provided a critique of liberalism as such, as a political ideology. I will turn finally to what Marx thought of Liberals, or Whigs as they were then called.

In my view the title to Chapter 5, “Contemporary Responses to Marx’s Critique of Liberal Justice” gives a much better idea of what the book is about. This chapter contains incisive and powerful critiques of some leading contemporary theorists of liberal justice: John Rawls (141-150), Jürgen Habermas (150-159), Axel Honneth (159-169), Nancy Fraser (169-173). As Igor points out, Marx’s journey from philosophy to law “formed the basis for his critique of formal liberal justice” (173). And these four scholars “have tried either to respond directly to Marx’s critique or to modify his critique in the light of the challenges presented by global financial capitalism.” (173)

Igor, however, goes further than explicating Marx’s “critique of formal liberal justice”. He has a much bolder claim, which provides the backbone to his book: that a “major premise” of the development of Marx’s materialist theory of history was his “new materialist conception of right” (Igor’s emphasis, 34). On the following page Igor explains that this is “historically situated and is based on the view that different standards of right apply in different modes of production”. Igor has chosen to translate the German Recht as “right”, meaning a system of law and justice (2); “rights” would be Rechte. He is quite right not to translate Recht as “law” or “the law”. “Law” and “the Law” are the subject of considerable mystification, even partially concealed veneration, by many “critical legal” and, in particular, “post-modern” scholars. Law is given a status and significance which, for Marx and Engels, it simply did not deserve.

It should be noted that Marx wrote a “critique of political economy”, and on no account a “theory of economics”; and most certainly did not attempt a theory of law. Indeed, in 1843-4 he wrote his Critique of Hegel’s Philosophy of Right, which acknowledges the power of the young Hegel’s critique of capitalist relations (Lukács), while showing how Hegel could not arrive at a materialist diagnosis or recognition of the class struggle.

Igor demonstrates a splendid knowledge of the GrundrisseCapital, and many other texts by Marx and Engels, and their critics. But there is one important text which does not appear in his book, surprisingly. In 1887, a few years after Marx’s death, Engels and Karl Kautsky published their article Juristen-Socialismus, translated into English and published as “Juridical Socialism” (Engels and Kautsky 1977, see also Beirne 1977). Engels explained – and Marx would not have disagreed – how the main battle cry of the bourgeoisie became “equality before the law”, because their struggle had to be based around legalistic demands. “This solidified a world view based on legal rights … at first the proletariat had embraced the world view of legal rights, and sought weapons in it for use against the bourgeoisie.” Engels and Kautsky insisted that “Marx … presents no legalistic demands at all in his theoretical work … Legal rights, which always reflect the economic conditions of a specific society, are treated only in a very secondary manner in Marx’s theoretical studies, as opposed to the primary historical topic of situating particular circumstances, means of acquisition, and social classes in specific periods.” But they also insisted that socialists would not fail to present certain legalistic demands: “Every struggling class must therefore formulate its demands as legalistic demands within a program … however, no existing socialist party has thought of making a new legal philosophy of its program, and this will not happen in the future.” For example, the workers’ struggle for the ten hour day, which occupies a significant part of Capital.

This position was paraphrased by Peter Schöttler in 1993 as follows: “… there is indeed no proletarian or socialist legal ideology (just as there can be no socialist philosophy of law), but there are proletarian, or socialist, legal demands, and these are necessary, nay indispensable, if the proletariat wishes to articulate its interests politically in opposition to the bourgeoisie and the bourgeois state. The political class struggle includes making legal demands.” In fact, Engels and Kautsky – and Marx – provided the strongest support for Igor’s position.

There are at least 13 references in Igor’s book to “Marx’s new materialist conception of right” (33, 35, 38, 43, 47 x 2, 85, 88, 137, 138, 208, 213, 214) – more than appear in the Index, which is rather incomplete. In my view this is what the book is really about – that is, the critique of right, or in other words, formal bourgeois or liberal justice. And this is based on Marx’s new materialist conception (not theory) of right.

Chapter 4 is entitled “The Normative Argument for Communist Legality”. Again, the title is perhaps misleading, since this chapter contains to my mind the best critique – indeed demolition – of the “commodity exchange theory of law”, better known as the Commodity Form Theory or CFT, of Evgeny Pashukanis.

Contemporary “Pashukanists” include China Miéville, Robert Knox, and Grietje Baars (see my 2020 review in Marx & Philosophy Review of Books of her monumental The Corporation, Law, and Capitalism, a thoroughly Pashukanist work).

Pashukanis worked out the most rigorous and interesting attempt at a Marxist theory of law, his General Theory of Law and Marxism, in 1920-21 in Berlin while employed as the legal adviser to the Soviet Russian delegation negotiating the Rapallo Treaty with Germany. He wrote it in 1923. The General Theory was published in Russia in 1924. Of course, 1921 was the year in which Lenin introduced the New Economic Policy, described by him as an “economic system that would include ‘a free market and capitalism, both subject to state control,’ while socialized state enterprises would operate on ‘a profit basis’.” After Lenin’s death, Stalin changed course dramatically in his “great break” of 1928.

As Igor notes, “Although Pashukanis grants that recourse to law will still be necessary during the transition from capitalism to communism, he leaves no doubt about the withering away of law in developed communist society.” (103) That conclusion follows inevitably from Pashukanis’s commodity form theory of law – law, for him, is achieved under developed capitalism. Law will be replaced by administration. As Igor shows (107), Pashukanis’s most significant departure from Marx was his derivation of legal relations from commodity exchange relations.

Igor demonstrates (106) that the shortcomings of Pashukanis’s theory can be summed up on four levels. First, Pashukanis conflates three distinct concepts – positive law, legal validity and juridical personhood, under the unitary umbrella of the legal form. Second, he derives all legal phenomena from generalised commodity exchange relations, which forces him to confine his analysis to private law, and property law in particular. Third, he cannot make sense of public law, so that for him democratic planning takes the form of a purely technical process. And fourth, he contradicts Marx’s central claim that “legal relations stem from historically specific productive relations”.

The New Economic Policy demanded courts and a Civil Code – in essence the German Civil Code enacted in Russia in the mid 19th century. After Stalin’s turn to full state control, centralised planning, and forcibly collectivised agriculture, Pashukanis was forced to retract his theory, and to acknowledge, with Pyotr Stuchka, that there was indeed a new “socialist law” in the USSR. Engels had, as noted above, stated categorically that there could be no such thing. Pashukanis, having played a leading role in drafting the “Stalin Constitution” of 1936 with its chapter on human rights, was denounced as an enemy of the people, sentenced to death, and shot in September 1937. He was posthumously rehabilitated in 1956, after Stalin’s death.

Throughout his book Igor insists that “rather than envisioning the transcending of rights under post-capitalist conditions or material abundance and solidarity, Marx’s dialectical approach pointed to the transformation of civil and political rights on the basis of a communist mode of production that would aim at meeting the multiplicity of human needs. This position goes against conventional liberal and Marxist interpretations, according to which Marx was hostile to individual rights and predicted their obsolescence in the communist society of the future.” (208)

Marx’s new materialist conception of right leads to the conclusion that communist production would require legal relations of its own. Scott Newton (2016) that the USSR suffered from an over-abundance of law and legal regulation which could hardly be described as socialist. I entirely agree, and Igor provides ample textual support for this argument.

However, there is one point at which I do not agree. Igor mobilises Engels’ 1845 Speeches at Elberfeld in support of the proposition that although Engels was convinced that communist society would eliminate the root causes of crime and property disputes, he acknowledged that individual conflicts could still arise and would demand resolution by arbitrators (122). That is placing too much weight on Engels’s passing remark, I think. Igor is quite right to add that “Marx did not detail the future `laws’ of communist society; this task was left for the associated producers themselves.” (124)

Lastly, I turn to Marx’s scorn for the British Liberals (or Whigs). In his 1852 “The Elections in England. –Tories and Whigs” Marx wrote in his usual pithy and satirical manner: “It is evident what a distastefully heterogeneous mixture the character of the British Whigs must turn out to be: Feudalists, who are at the same time Malthusians, money-mongers with feudal prejudices, aristocrats without point of honor, Bourgeois without industrial activity, finally — men with progressive phrases, progressists with fanatical Conservatism, traffickers in homeopathical fractions of reforms, fosterers of family — nepotism, Grand Masters of corruption, hypocrites of religion, Tartuffes of politics.” One might think that this is not a bad description of the Liberal Democrats of today, especially in their coalition with the Tories under David Cameron and Nick Clegg.

9 March 2021

References

  • Beirne, P. 1977 Introduction to “Juridical Socialism” Politics & Society 7(2), pp. 199–201
  • Engels, F. and Kautsky, K. 1977 Juridical Socialism Politics & Society 7(2), pp. 203–220
  • Newton, S. 2016 Law and the Making of the Soviet World: the Red Demiurge Abingdon and New York: Routledge

URL: https://marxandphilosophy.org.uk/reviews/18909_revisiting-marxs-critique-of-liberalism-rethinking-justice-legality-and-rights-by-igor-shoikhedbrod-reviewed-by-bill-bowring/

Day of the Endangered Lawyer, Azerbaijan, 24 January 2021

Professor Bill Bowring, Barrister

On 24 January the Bar Human Rights Committee (BHRC) is proud to be taking part in the 11th annual Day of the Endangered Lawyer (DOTEL). I am an Executive Committee member of BHRC, and the European Lawyers for Democracy and Human Rights (ELDH, in 21 countries), of which I am President, has been a co-organiser of the event from the start. This year we are focusing on Azerbaijan, and the Petition which will be delivered to the embassies of Azerbaijan all over Europe, has been drafted by ELDH General Secretary Thomas Schmidt, with lawyers in Azerbaijan, and the Coalition for the Endangered Lawyers with 36 lawyers organisations and bar associations. In previous years we focused on China, Colombia, Egypt, Honduras, Iran, Pakistan, The Philippines, Spain/Basque Country, Turkey and Pakistan.

On 21 January I am participating on behalf of BHRC in the Webinar organised by the Law Society, with ELDH and others.

Why 24 January? This is the date in 1977, two years after Franco’s death, of the Atocha Massacre. Three men, neofascist extremists, entered a legal support office for workers at 55 Atocha Street in central Madrid and opened fire on everyone there. Those murdered were three labour lawyers, a law student and an administrative assistant. Four others were severely wounded. This massacre was a turning point in the consolidation of Spain’s return from Franco’s fascism to democracy, and there are now 25 streets and squares in Madrid dedicated to the victims of the massacre.

On 24 January the organisers of DOTEL ask their international colleagues to 1) raise awareness about the number of lawyers who are harassed, silenced, pressurised, threatened, persecuted and in some countries tortured and murdered for their work as lawyers; and 2) initiate or further develop a national discussion about ways to protect lawyers.

Why Azerbaijan this year? Despite the fact that since independence in 1991 Azerbaijan has become a member of the Council of Europe and has ratified the ECHR and other human rights treaties, it has a shocking record of human rights violations highlighted in many judgments of the Strasbourg Court. To Azerbaijan’s shame, many lawyers who represent victims and speak out about torture and ill-treatment in police custody have themselves been victims of serious human rights violations.

In 2017 the UN Working Group on Arbitrary Detention expressed concern that lawyers representing victims at Strasbourg had been disbarred and in some cases detained. These concerns have also been voiced by the Council of Europe Commissioner for Human Rights and other international bodies and NGOs. In 2020 the Law Society and Lawyers for Lawyers reported that Azerbaijan had failed to honour commitments it made in 2018 to the UN to protect lawyers.

Indeed, in 2018 Azerbaijan enacted legislation to prevent well-known human rights lawyers from practising. One of five lawyers already excluded is the advocate Emin Abbasov, who is speaking at the Law Society Webinar on 21 January, and who helped draft the Petition.

Review of Mary McAuley “Remembering Leningrad: The Story of a Generation”

Rights in Russia

Review of Mary McAuley “Remembering Leningrad: The Story of a Generation”

The University of Wisconsin Press, 2019, $39.95, around £28

236 + xiv pages. No index.

This is a book for deep immersion, a book to be savoured.

I first met Mary McAuley in Moscow in 1997. She was at time the Head of the Ford Foundation’s office in Russia, from 1995 to 2002. I was a lecturer in Human Rights at Essex University, had first visited Russia in 1983, in the time of Andropov, and after many visits to Russia, had won a contract to advise the new Department for International Development (DfID, now sadly closed) on initiating and funding projects on “Human Rights and Law Reform in Russia”. Mary had taken up the Ford post after teaching at Essex and Oxford Universities, and was a rather powerful person in Russia: she was one of the main grant-makers for civil society, especially human rights and media, and she was able to give me unique advice and contacts. Mary is also rather formidable.

I also met her husband Alastair McAuley, my colleague at Essex, who had taken a year out to help direct the New Economic School (housed in the 1963 Soviet modernist “house with an ear”, the Central Economic Mathematical Institute), and they took me to dinner at a restaurant around the corner from Mary’s grand office in Tverskaya Ulitsa. I have vivid recollections.

Based in particular on her experience with Ford, she has written a splendid book Human Rights in Russia: Citizens and the State from Perestroika to Putin (I. B. Tauris 2015, reprinted in paperback in 2016) which I have reviewed elsewhere (SCRSS Digest 2015 No 3, p.14).

Mary’s new book is very much more autobiographical. She kept a wonderfully detailed diary, starting with her first visit to Moscow, St Petersburg and Kiev in September 1959 (16). This was also when she met El’mar Sokolov, one of the people, residents then of Leningrad and later of St Petersburg, who are central to the book. He became her close friend. He died in 2003 (220), born in 1932, and his name is an amalgamation of Engels, Lenin and Marx – not uncommon at that time. His parents, who moved to Leningrad in 1941, were people who never doubted the rightness of Communist Party rule or the superiority of socialism over capitalism.
In 1961, back in Russia, Mary met El’mar’s groups of friends from school, and they too are our companions in this richly detailed series of stories. Their group photographs as they were together at school are reproduced on pages 18 and 19, and El’mar’s photo at the time Mary first met him, a lecturer in the philosophy department of the Herzen Institute – the pedagogical university today – in 1961 is at p.23. On page 188 there is a photo of El’mar (and his school friend Leva) as they were when Mary visited them in Pskov in 1993, 32 years older. This is the history of Russia in the second half of the 20th century, in one individual.

Two others whose lives we follow with Mary are the twins Leonid and Liuba Romankov: their photos in 1961 are at pages 26 and 27, and in 1993 at page 190. On page 191 there is a moving detailed recollection of their birthday party in November 1993.

Indeed, this is really less an autobiography of Mary McAuley, but much more a biography of the city and some of its inhabitants. The book is dense with vivid detail, and brings the city to life.

In 1961 Mary, studying at St Antony’s College, a graduate college at Oxford, won a place on the ten month research visits organised by the British Council and the Soviet Ministry of Higher Education, and sailed on the Soviet cruise ship Baltika, from Tilbury to Leningrad. She is pictured as she was then on page 37. Life as a student is captured in Chapter 2, “Stalin’s Children”. She studied Labour Disputes in the USSR (Chapter 3). She returned in 1965 with Alastair as a tourist, and caught up with her friends.
She also met a new friend, the historian of free-masonry in Russia, Vitaly Startsev, who was also a good friend of mine, a warm and generous individual. I helped in his research in London in 1993, and met him and his wife also in St Petersburg on several occasions. As noted above, the book sadly has no index, but Professor Startsev makes several more appearances (e.g. pages 91, 184). He died in 2000.

In 1990 Mary was back in St Petersburg, as it was renamed in 1991, attached as a visiting scholar to the new Institute of Sociology (83), working on the new social and political movements.

That stormy period, with the unexpected collapse of the Soviet Union in December 1991, is not to be forgotten. I was in Moscow in June and July 1991, taking a three week immersive course in Russian at the excellent Russian language school for foreigners at the Moscow Motor Road Construction Institute (MADI). As Mary too recalls, that was a time of acute shortages: there were no matches to be found for a period, and no-one turned off their gas, for fear that they would not be able to light it again – and so as to be able to light their cigarettes. On 10 July 1991 I watched on TV the pomp and ceremony of the inauguration of Boris Yelstin as first elected President of Russia, with Mikhail Gorbachev, unelected President of the USSR, sitting alone in a corner. The following month, in the “putsch”, the government of the USSR tried to take power, and failed. Yeltsin standing atop a tank in front of the White House is an indelible image.

In 1992 Mary was granted two more years research leave at the Institute (118) and she bought an apartment in Vasilevsky Island. Chapter 7, “An Apartment and a Telephone” will tell you everything you could ever want to know about the nightmare of acquiring a place to live and a means of communication, neither at all straight-forward, in those tumultuous years.
Chapter 9, “From the Caucasus to the Far North” describes, with some evocative photographs, her exotic travels in Russia in 1992 and 1993.

In 1995 Mary was already in charge of the Ford Foundation’s Moscow office. In St Petersburg she funded civil society organisations and activists very well known to me too: the Memorial Society (my partners since 2003 in the European Human Rights Advocacy Centre, EHRAC, taking cases against Russia at the European Court of Human Rights); Smolny College, set up with Bard College in the USA, where I also taught human rights; Citizens Watch, led by the fearless Boris Pustintsev; and the fearless human rights advocate Yury Schmidt, my colleague in the trials and acquittal of Alexander Nikitin in 1998-9, who died in 2013.

The final visit to St Petersburg in this book was in October 2015 (201), with her daughter in law, Marina. October 30 is the commemoration day for victims of political repression, and they laid flowers at the Troitsky stone, a boulder from the Solovetsky Islands in the White Sea, a place of exile and death in the 1920s and 1930s.

Chapter 12 is entitled “Farewell to St Petersburg”. Finally, Mary’s Postscript (235) takes us to her flat in Bloomsbury, and in an elegiac page and a half, shows us her Russian paintings and artefacts.

Review of Robert Stephenson “We are building Capitalism! Moscow in transition 1992-1997” for SCRSS Digest

Robert Stephenson We are building Capitalism! Moscow in transition 1992-1997 , Glagoslav Publications, 2019, 210 pages, Foreword by Vladimir Gel’man pages 7-12, Paperback £25

Robert Stephenson lived and worked in Moscow from 1992 to 1997. A civil servant, he had been head of the IT Strategy team for the UK’s Employment Service, and was invited in 1992 to become a Consultant to the new Federal Employment Service, and then a capacity builder for trainers in business and commercial skills. In 1995, in Moscow, he married the brilliant sociologist Svetlana Stephenson (Sidorenko – now at LondonMet, essential reading – Gangs of Russia: From the Streets to the Corridors of Power, 2015). So he did not experience Moscow as capital of the former USSR.

Robert is also an accomplished photographer with an eye for the telling detail, and there are over 100 fascinating photos in this book, most of them taken in 1992-1993. The final photo, however, taken in 2012 (p.208), shows the “Moscow City” skyscraper complex looming over the Garden Ring and Krymsky Most (bridge). The photo on the opposite page taken in the same place, in 1992, 20 years previously, shows an utterly different view, with no advertising, very little traffic – and no skyscrapers. Should we feel nostalgia?

As Vladimir Gel’man comments in his Introduction on Bob’s photos “… with his focus not only on major political events… but also on the manifestations of the societal change in many details of Moscow life, from the rapidly changing patters of consumption to the outward appearance of Moscow and its inhabitants.” Indeed, as Gelman says, the book has its own protagonist, Moscow.

The book has 11 chapters, each with an insightful introduction and commentary by Bob. The chapters’ titles give a good indication of their contents: “The shadow of the past”; “Inflation, speculation and accumulation”; “Reform and resistance”; “Religious resurgence”; “Out with the old and in with the new”: “Reaching for the stars”; “Attractions and distractions”; “On the road”; “The view from the street”; “Strange sights”; and “The shape of things to come”.  

The book is beautifully produced in landscape A4 format, and the photos are vividly reproduced. I found myself reliving my own experiences during those turbulent years, One of the first photos (p.28) is of a rock concert held at the White House on 19 August 1992 on the first anniversary of the failed coup of April 1991 (which Bob missed – I was in Moscow). But there are no photos of Yeltsin’s use of tanks in 1993 to storm the White House, where the Supreme Soviet was sitting, though Bob has a brief account of events on pages 69-70.

This Chapter, 4, “Reform and Resistance” (pages 69 to 79), has photos of demonstrations in 1992-3. Bob comments that “…the streets of the city became a forum for protest against, and promotion of, social change”. But he is detached, apolitical observer.

This gorgeous book is recommended to anyone who wants to view, if not experience, how life carried on.

Review of Vladlen Loginov “Vladimir Lenin – How to Become a Leader” – for SCRSS Digest

Vladlen Loginov (translation by Lewis White); Vladimir Lenin – How to Become a Leader; Glagolit Publications, 2019; 328 pp, Introduction by Professor Geoffrey Swain pages 7-18; £19 paperback

I thoroughly enjoyed reading this new book, in its excellent and highly readable translation by Lewis White.

But I have to start by arguing with the translation of its title. The book was published in 2005 in Russia, with the title Выбор пути: Биография (Vybor puti: Biografiya), which may be literally translated as “Choosing a path: Biography”, which gives a much better idea of the content of the book. This is not at all an instruction manual for would-be leaders, nor does it explain how Lenin became a leader. Instead, it is a detailed and well-researched chronological account of Lenin’s early life from his birth as Vladimir Ulyanov in 1870, to 1900, when he was 30 years old. In 1901 he began to sign his works with a new pseudonym – Lenin. There were 24 momentous years before his death aged 54.

Vladlen Loginov was born in 1929, now 91 years old. In the course of his long life he has published over 400 books and articles, many on Lenin, and his latest book was published in 2018, Ленин. Сим победиши (Lenin. Sim pobedishi), as an electronic book, free access at https://leninism.su/images/PDF/loginov.pdf, covering the last years of Lenin’s life, from the end of the Civil War, to his conflicts with Stalin and his Testament.

Loginov certainly knows his subject-matter, and every page is thoroughly referenced to many sources. The reader will find much fascinating detail as to Lenin’s immediate ancestors, and his early life. I thought I knew a lot about Lenin, who is one of my own special subjects, but I learned a great deal, and with pleasure. For example, details of Lenin’s practice as a criminal defence advocate in Samara, from 1892 to 1893 (pages 126-128); and of his life with Nadezhda Krupskaya in Shushenskoye (pages 228 to 237).

What was the task Loginov actually set himself? His own Introduction is entitled “What colour were Lenin’s eyes?”, that is, the various descriptions of Lenin’s short stature, and his “agreeable, swarthy face with a touch of the Asiatic to it”, but in particular his force of personality. But Lenin, still lying in the Mausoleum (contrary to his own wishes) has become the subject of myth upon myth, especially in the Soviet period, when he became “a kind of symbol of the “new faith”… For millions, an object of near religious veneration.” In Loginov’s view, “… searching for the roots of modern problems in Lenin’s past deeds is at the very least unfair, since it has now become a wholly separate narrative: it is akin to blaming Christ for the Crusades and the bonfires of the Inquisition…”

Loginov’s aim is very modest: “… not to offer an explanation, but to present some material for consideration, a few details of his biography hitherto unknown…”

Russia and the European Convention (or Court) of Human Rights: The End?

Special issue of the Revue Québécoise de Droit International on the 70 years of the European Convention of Human Rights

Bill Bowring, Birkbeck College

Introduction

Russia has been a member of the Council of Europe (CoE) for 25 years, and of the European Convention on Human Rights (ECHR) for 22 years, which is in itself in my view a remarkable achievement on both sides.[1] This article asks the questions: how has this been this possible? And is the close and mostly positive relationship between Russia and the Council of Europe and the ECtHR about to come to an end?

In order to answer these questions, I first provide an overview of the USSR’s late acknowledgment of the need for compliance in its internal affairs with UN standards, and especially the contribution of Mikhail Gorbachev. I follow this with an account of Russia’s accession to the CoE and ratification of the ECHR under Boris Yeltsin, and a snapshot of the popularity for Russians of complaining to Strasbourg. Second, I turn to the very controversial rulings by the Constitutional Court of the Russian Federation (CCRF) and new legislation on the question of the CCRF ruling on the “impossibility” for Russia of implementing judgments of the European Court of Human Rights (ECtHR). Third, I analyse the controversial Yukos case. This was in fact the second and last until now such ruling. Fourth, the Parliamentary Assembly of the Council of Europe (PACE) imposed sanctions on Russia following the illegal annexation by Russian of Crimea. Russia seemed poised to leave or be expelled from the CoE. But in 2019 a controversial deal was done. Fifth, I ask whether President Putin’s 2020 amendments to the 1993 Constitution really pose a threat to Russia’s continuing relationship with the CoE and the ECHR.

1. The USSR, Russia, and the CoE

I first visited Russia in December 1983. Yuriy Andropov was in his last year as General Secretary of the Communist Party of the USSR. Had he lived longer, it is possible that the USSR would have followed a similar path to that taken by China, still ruled by its Communist Party. But he died on 9 February 1984, followed by the lack-lustre leadership of Konstantin Chernenko, who in turn died on 10 March 1985.

Mikhail Gorbachev, after a short-lived return to Leninism, began in 1986 the process which would lead to the collapse of the USSR in December 1991, with his call for a revolution in the USSR, in his speech to party officials in Vladivostok on 29 July 1986[2]. His book Perestroika: New Thinking for Our Country and the World was published in November 1987, and he announced a new policy of a Common European Home in 1989.  

In April 1990 a new Committee for Constitutional Supervision, conceived in 1988, started work, and during 1991 brought the USSR closer to the UN human rights systems. In its Ratification of the Optional Protocol Case (4 April 1991)[3], the CCS requested the Supreme Soviet of the USSR to secure ratification by the USSR of the First Optional Protocol to the UN International Covenant on Civil and Political Rights (ICCPR). On 5 July 1991 the Supreme Soviet adopted two Resolutions acceding to the Optional Protocol and recognising the jurisdiction of the UN Human Rights Committee.[4] This was already a giant step in recognising international human rights standards. Previously there had been tow pillars of Soviet international law, state sovereignty, and the prohibition of interference in the internal affairs of states.[5]

But there was no question while the USSR still existed of joining the Council of Europe (CoE), or, in obligatory consequence, ratifying the Europe Convention on Human Rights (ECHR).[6]

The Council of Europe

Russia applied to join the Council of Europe on 7 May 1992, at a time when there were a number of progressive developments, in terms of legislation and in the work of the new Constitutional Court. Despite the fact that it was then engaged in bitter internal armed conflict in Chechnya, Russia became a full member of the Council of Europe on 28 February 1996. On 28 February 1998 the State Duma of the Russian Federation voted to ratify the ECHR. A total of 294 (65.3the per cent) deputies voted for, with only 11 (2.4 per cent) against and two (0.4 per cent) abstentions. The Federal Law of the Russian Federation ‘On ratification of the ECHR’ entered into force on 30 March 1998. The ECHR itself entered into force for Russia on 1 November 1998.[7]

I had been practising at the ECtHR since 1992, mostly in cases on behalf of Kurdish applicants against Turkey.[8] In 2000 I applied to the European Commission for a grant to assist Russian human rights activists to take cases to the European Court of Human Rights (ECtHR, the Court), and in 2002 I was awarded €1 million for a partnership between the “Memorial” society in Moscow and its Human Rights Centre, the Bar Human Rights Committee of England and Wales, and the University of North London where I was then teaching. The European Human Rights Advocacy Centre (EHRAC) was founded in 2003, in partnership with Memorial, and is still going strong.[9]  EHRAC has assisted applicants in securing 247 judgments from the Court establishing Russian responsibility for aerial bombardment, extra-judicial killings, enforced disappearances and torture during the conflict in Chechnya.

Vladimir Putin became President of the Russian Federation in April 2001, after starting the Second Chechen War as Prime Minister in 1999, and has effectively been in power for more than 20 years. He is not a friend of human rights, to say the least. Nevertheless, as noted above, Russia has now been a member of the CoE for 24 years, and of the ECHR for 22 years. During his period of rule the supremacy of international law and of the ECHR in particular has been further strengthened by the Supreme Court of the Russian Federation (SCRF).

On 10 October 2003 the SCRF adopted a Resolution ‘On application by courts of general jurisdiction of the commonly recognized principles and norms of the international law and the international treaties of the Russian Federation.’[10] This Resolution, drafted with the participation of the justices of the CCRF and Anatoliy Kovler, then Russia’s judge at the ECtHR, is binding on all lower courts and contained the following with reference to the ECHR:

10. It is clarified to the courts that international treaties should be interpreted in accordance with the Vienna Convention on the Law of Treaties of 23 May, 1969 (Section 3; Articles 31-33).

In accordance with item “b” of paragraph 3 of Article 31 of the Vienna Convention, any subsequent practice in the application of a treaty, which establishes the agreement of the parties regarding its interpretation, should be taken into account along with its context for the purposes of interpretation of the treaty.

As a member state of the [ECHR], the Russian Federation recognizes the jurisdiction of the [ECtHR] as compulsory in issues of interpretation and application of the Convention and its Protocols in the event of presumed breach of provisions of said treaty acts by the Russian Federation, if such a breach took place after their entry into force in respect of the Russian Federation (Article 1 of Federal Law “On Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols”, No. 54-FZ of 30th March 1998). This is why the said Convention should be applied by courts with regard to the practice of the [ECtHR] in order to avoid any violation of the Convention.

On 27 June 2013 the SCRF passed a Ruling ‘On application of the ECHR by the courts of general jurisdiction.’[11] This affirmed the principles contained in the 2003 Resolution, and directed that the judgments of the ECtHR in cases against Russia are mandatory for Russian courts, and judgments against other countries must be taken into account.

2. As follows from Article 46 of the Convention, Article 1 of [the Federal Law on Ratification], the legal positions of the European Court of Human Rights contained in the final judgments of the Court delivered in respect of the Russian Federation are obligatory for the courts.

Indeed, the ECtHR dealt with 9,238 applications concerning Russia in 2019, of which 8,793 were declared inadmissible or struck out. It delivered 198 judgments (concerning 445 applications), 186 of which found at least one violation of the European Convention on Human Rights.[12] Russia complies with almost all judgments in terms of payment of just satisfaction (compensation), and there are many examples of substantive implementation.

2. Russia, the ECtHR, the Constitutional Court and “impossibility[13]

Very soon after the 2013 Resolution, Russia was taking a rather different position.

On 14 July 2015 the CCRF handed down its Postanovleniye (Resolution) of 14 July 2015, No. 21-P.[14] This judgment resulted from a request by a group of 93 deputies of the State Duma as to whether a number of legislative enactments were compatible with the Constitution. These were Article 1 of the 1998 Law “On Ratification of the ECHR”; Article 32(1) and (2) of the Federal law “On international treaties of the Russian Federation”; and provisions of the Civil Procedural Code, Arbitrazh (Commercial) Procedural Code, Code of Administrative Misdemeanours, and the Criminal Procedural Code. In the view of the deputies, these enactments were incompatible with Articles 15(1),(2) and (4), and Article 79 of the Constitution, since they in fact obliged Russian organs of legislative, executive and judicial power, to unconditionally implement judgments of the ECtHR, even in cases where such judgments contradicted the Constitution.

The Court ruled that these provisions were compatible with the Constitution, but laid the basis for the amending Law discussed below. The judgment, for which the Judge-Rapporteur was the Court’s Deputy Chairman Sergey Mavrin, confirmed the subsidiary nature of the Strasbourg system and the obligatory nature of Strasbourg judgments, and paid close attention not only to the provisions of the 1969 Vienna Convention on the Law of Treaties, but also to the case-law of the German Constitutional Court (the Gorgulu and Solange-1 judgments), the Italian Constitutional Court in its judgment of 31 May 2011 on the Maggio v Italy case and its 22 October 2014 judgment following the ICJ’s Jurisdictional Immunities of the State (2012) case; the Austrian Constitutional Court’s judgment of 14 October 1987; and of course the UK Supreme Court’s judgment of 16 October 2013 following Hirst v UK. State organs could apply to the Constitutional Court in a concrete case to ask whether a judgment of the ECtHR was “impossible” to implement because it contradicted the foundations of the Russian constitutional order.

The Court gave as an example the judgment in Anchugov and Gladkov v Russia of 14 July 2013[15], the Russian Hirst, on prisoners’ voting rights. In the Court’s view, to implement the judgment would mean violating a series of Articles of the Constitution (Article 15(1), 32(3), and 79), or adopting a new Constitution.

Anna Pushkarskaya, writing on the day of the judgment in Kommersant, pointed out that the background to the application was the Yukos just satisfaction decision, and expected that there would be a further application to the CCRF in respect of that decision.[16] However, the following day she published an interview with Sergey Mavrin in which he stated that the CCRF would always seek a compromise with Strasbourg and avoid a direct collision. The effect of an application to the CCRF in a concrete case would be to provide a breathing space.[17] I will turn below to some recent compromises.

On 14 December 2015 President Putin signed the Federal Law “On enacting amendments to the Federal constitutional law on the CCRF.”[18] One headline on the day of signature read, “Putin approved a law permitting the non-implementation of decisions of the European Court of Human Rights.”[19] The Law came into force on its publication on 15 December 2015 in the Russian Gazette[20]. It amended Article 3(3) of the Federal Law “On the Constitutional Court” so as to give the Court the jurisdiction to decide the question on the possibility (vozmozhnost) of implementing the decision of an international organ for the protection of the rights and freedoms of the person; the CCRF can declare “possibility” or “impossibility.”

The word “possibility” is not defined. I now turn to its deployment in the CCRF’s Resolution of 14 July 2015 in the context of the judgment of the ECtHR in Anchugov and Gladkov v. Russia of 14 July 2013,[21] the Russian Hirst v. UK,[22] and the Yukos judgment.

On 19 December 2015, Philip Leach and Alice Donald wrote under the headline: “Russia Defies Strasbourg: Is Contagion Spreading?”[23] This was a reference to their article of 21 November 2013, “Hostility to the European Court and the risks of contagion,”[24] which focused not on Russia but on the United Kingdom’s position. They quoted the former President of the European Court, Sir Nicolas Bratza, who had expressed his concern about the risks of contagion:

There is a risk of this attitude in the UK to judgments of the Court negatively impacting on other states and complaints being made of double standards … [which] could result in a wider refusal to implement ECtHR judgments across the Council of Europe. (p. 176)

And they referred to the Commissioner for Human Rights of the CoE, Nils Muižnieks, who suggested in a memorandum to Nick Gibb MP that

… continued non-compliance would have far-reaching deleterious consequences; it would send a strong signal to other member states, some of which would probably follow the UK’s lead and also claim that compliance with certain judgments is not possible, necessary or expedient. That would probably be the beginning of the end of the ECHR system, which is at the core of the Council of Europe.[25]

Their fears of “contagion” seemed to be confirmed by the new Russian law. In their view, it did not “simply concern the relationship between the Strasbourg Court and the domestic courts (reflecting, for example, the long-standing debate in the UK about the implications of Section 2 of the Human Rights Act).”[26] It went, they asserted, much further than that. It denied the enforceability of ECtHR judgments as regards the Russian state altogether, thereby purporting to extinguish the effect of Article 46 of the ECHR, unprecedented in the history of the European human rights regime.

The response of the CoE was more measured. On 15 December 2015 the then Secretary General of the CoE, Thorbjørn Jagland, said:

[I]t will be up to the Constitutional Court of Russia to ensure respect for the Convention if it is called upon to act under the new provisions. The Council of Europe will only be able to assess Russia’s compliance with its obligations when and if a specific case arises. The compatibility of Strasbourg judgments with the national constitutions has been examined in some other member States. So far, countries have always been able to find a solution in line with the Convention. This should also be possible in Russia.[27]

The Russian Hirst?

However, on 19 April 2016 the CCRF rendered a judgment[28] in which it examined the question of the possibility of executing the judgment of the ECtHR of 4 July 2013 in the case of Anchugov and Gladkov v. Russia in accordance with the RF Constitution.[29]

There were amicus curiae briefs before the CCRF arguing that the problem could be resolved by interpreting the RF Constitution, rather than seeking to amend it, which the CCRF cannot do. The CCRF, with three powerful dissents, disagreed and held that in 1998, when Russia ratified the ECHR, there was no case law under Article 3 of Protocol 1 (right to democratic elections) prohibiting a “blanket ban” on prisoners’ voting. Otherwise, ratification would have contradicted the RF Constitution. However, the CCRF suggested that by an amendment to the criminal law persons detained in Russian “open prison” correctional colonies could be reclassified so that they do not fall within Article 32(2) of the RF Constitution. If this was done, Russia would in effect implement the ECHR’s judgment. The CCRF emphasized the priority of international law, especially the ECHR, over Russian domestic law, while insisting that it is the final judge in issues concerning the RF Constitution.[30]

Indeed, the pragmatism of the CCRF prevailed, and on 25 September 2019, the Committee of Ministers (CM) of the CoE, which pursuant to Article 46(2) of the ECHR supervises the execution of judgments of the ECtHR, adopted a final resolution[31], which closed the supervision of Anchugov and Gladkov v. Russia.[32] The closure of the case means that Russia, taking the advice of the CCRF, has complied with the ECtHR’s judgment, according to the CM’s assessment. According to the Action Report[33] submitted by the Russian authorities on 27 June 2019, the judgment was executed through the introduction to the Russian Criminal Code of a new category of criminal punishment – “community work” (translation provided in the Action Report)[34]. The Action Report further explained that such punishment is carried out through “placement in correctional centres for community work and may be imposed for committing a small or medium gravity offence or in case of a grave offence is committed for the first time.” These persons would have the right to vote, and in this way Russia was able to comply with the ECtHR’s judgment.

The ECtHR seeks to maintain good relations with Russia

The ECtHR had in any event attempted to maintain good relations with Russia. On 6 December 2016 it was reported that the IX Congress of Judges of the Russian Federation had been addressed by Guido Raimondi, the then president of the ECtHR.[35] According to the report, he was careful to sidestep difficult issues, and praised the Russian authorities for the fact that they were implementing the decisions of the ECtHR. He approvingly observed that Russia was no longer the main source of complaints to the Strasbourg Court. Mr Raimondi also praised the practice of reversing sentences in connection with violations of Article 6 of the ECHR on the right to a fair trial. And in the work of the CCRF, he was attracted by the way in which it interwove the practice of the ECtHR in its decisions.

As to the problems in relations between Russia and the ECtHR, he preferred to pass them by, preferring to “look at the picture as a whole.” He did not mention, for example, that on 15 December the Russian CC was to consider the question of the possibility of implementing the judgment of the ECtHR as to paying €1.8 billion to the former shareholders of Yukos. In fact, the question of noncompliance with this judgment was soon to be considered by the Committee of Ministers[36]. Also, he did not call to mind that on 16 November 2016 the RF Supreme Court had overturned the sentence in the Kirovles case concerning the opposition leader and fighter against corruption, Aleksei Navalny.[37] Mr. Navalny did not agree with the RF Supreme Court’s decision that there must be a retrial, considering that the ECtHR had ruled that there was no criminal element in his activities[38].

3. The Yukos Case – Had Russia Finally Decided against Strasbourg?

The long-awaited judgment in the Yukos case was delivered on 19 January 2017.[39] Once again, the Court was furnished with, and accepted for consideration, expert amicus curiae briefs. On 30 November 2016 Kanstantsin Dzehtsiarou of Liverpool University and Maxim Timofeyev of the European Humanitarian University in Vilnius submitted their eighteen-page amicus brief,[40] and on 7 December 2016 the Institute for Law and Public Policy provided a closely argued thirty-three-page brief, drafted by the young advocate Grigoriy Vaipan[41], arguing against a finding of “impossibility,” both briefs warning of damage to the reputation and authority of the CCRF.[42]

In his dissenting opinion, Judge Yaroslavtsev argued that the judgment of the CCRF contradicted the principle of legality and by taking on the function of a legislator exceeded its competence.[43] Judge Aranovskiy concluded: “But taking the judgment as a whole, the court does not find a correct basis for its decision, and, shifting its coordinates, loses itself in a general series of political, administrative and financial considerations, which are not equal to legal reasoning.”

On 21 January 2017 the co-rapporteurs of the Monitoring Committee for the Russian Federation of PACE expressed their deep concern at the CCRF judgment.[44] They reiterated that the full implementation of the judgments of the ECtHR is a legal commitment to which Russia has subscribed under the ECHR. They added:

Unconditionally honouring the Convention is an obligation incumbent on all member States and it is therefore unacceptable that Russia would not enforce a judgment of the European Court of Human Rights. The Russian authorities should therefore consider implementing the recommendation of the Venice Commission of the Council of Europe that the authorities consider revising the constitutional provisions at odds with the implementation of the ECtHR judgment. One cannot accept a selective implementation of the ECtHR’s judgments.

As Maxim Timofeyev, the coauthor of one of the amicus briefs, commented on 26 January 2017,[45] this was the first time the apex court of a CoE member state had concluded that it should not pay just satisfaction. He summarized three main reasons given by the CCRF for its decision.

Firstly, the CCRF noted that both the prosecution of the company for tax evasion and subsequent enforcement proceedings were based on legal provisions that it earlier had found to be in compliance with the Russian Constitution. Secondly, the CCRF relied on the historical context of the 1990s, the “economic uncertainty,” and the fact that the Russian state was seeking to take special measures to defeat the tax avoidance strategies of Yukos and to pay for social welfare. If the government had decided to apply the statutory time-bar in the Yukos case, it would have acted in contradiction with the Constitution, which requires the state to ensure the payment of taxes by every person as required by the principles of equality and fairness. Thirdly, the CCRF emphasized that Yukos was acting in bad faith by using tax avoidance schemes. Yukos should have foreseen the government’s actions. Thus, payment of just compensation from the Russian budget to the shareholders of a company that was involved in vast tax avoiding activities would be contrary to the constitutional principles of equality and fairness.

On this reasoning, execution of the ECtHR judgment on just satisfaction was not possible. In Timofeyev’s view, this judgment only deepened the distance between Russia and Strasbourg and increased the chances of escalating the confrontation even farther.

The response of the ECtHR has so far been more muted. On 26 January 2017, Mr Raimondi addressed the annual press conference of the ECtHR and answered a question concerning the Yukos judgment of the CCRF. His answer has not been published by the court but can be seen and heard on the Court’s website.[46] Mr. Raimondi made the point that enforcement of judgments is not a matter for the ECtHR but for the Committee of Ministers (CoM), which had the Yukos case under review. His remarks were greeted with enthusiasm by Russia. The official Russian news agency TASS announced that “Strasbourg court chief says Russia fulfils 95% of court’s rulings. Russia’s judicial authorities generally demonstrate their full readiness for cooperation with the Strasbourg court, the ECHR president said.”[47]

TASS quoted Mr. Raimondi as follows[48]:

Very much positive can be said about relations with the Russian Federation. The Court has excellent relations with the Russian judicial authorities. I made a visit to Russia in late 2016 and held quite fruitful negotiations, in particular, with Chairman of the Supreme Court Mr. Lebedev and Chairman of the Constitutional Court Mr. Zorkin. They have big willpower to cooperate with the ECHR and with the Council of Europe as a whole. We could state with Chairman Lebedev that the Supreme Court is carrying out excellent work for preparing judges and we know that Russia has a large judge corps, which depends on the Supreme Court’s preparation programs. In most cases, up to 95% of our court’s decisions are fulfilled duly in Russia and this is a positive aspect in Russia’s relations with the ECHR.

Russia did not seek to appeal the Yukos judgment of the ECtHR to the Grand Chamber, and some years have passed.[49] Russia has agreed to pay some costs and expenses, but still refuses to pay the just satisfaction ordered. On 22 February 2019 the applicants submitted a strongly worded protest at failure to enforce the judgment[50]. No more has been heard from the ECtHR or the CM.

4. The illegal annexation of Crimea[51] and PACE sanctions on Russia

Sanctions were imposed on Russia and on a large number of Russian officials and businessmen, following inter alia the annexation of Crimea in March 2014[52]. This led to very serious economic costs to Russia.[53]

But even more painful for Russia were the sanctions imposed by the CoE. In April 2014, after the Russian parliament’s backing for the occupation of Crimea and Russian military intervention in Ukraine, PACE decided to suspend the Russian delegation’s voting rights as well as the right of Russian members to be represented in PACE’s leading bodies and to participate in election observation missions. However, the Russian delegation remained members of PACE. The sanction applied throughout the remainder of the 2014 session and was renewed for a full year in January 2015, lapsing in January 2016. The sanction applied only to Russian parliamentarians in PACE, the CoE’s parliamentary body, and Russia continued to be a full member of the CoE as a whole.

In response, the Russian parliamentary delegation suspended its co-operation with PACE in June 2014, and in January 2016 – despite the lapsing of the sanctions – the Russian parliament decided not to submit its delegation’s credentials for ratification, effectively leaving its seats empty. It did so again in January 2017, January 2018 and January 2019.

On 30 June 2017 the Russian Foreign Minister, Mr Lavrov, announced that Russia was cancelling its annual subscription payment to the CoE after claiming its 18 delegates to PACE were being “persecuted” in response to the annexation of Crimea. A Foreign Ministry statement said Moscow’s contribution for 2017 was being withheld in response to a “rampant campaign…launched to persecute [Russian] parliamentarians”. No future payments will be made until the rights of the Russian delegation to PACE  “are fully restored”, it added.[54] 

Some kind of deal was done, though the details are obscure. On 17 May 2019 the CoM, meeting in Helsinki, voted overwhelmingly in favour of a declaration that said “all member states should be entitled to participate on an equal basis” in the CoE’s CoM and PACE. This decision was condemned strongly by Ukraine. [55] Dmytro Kuleba, Ukraine’s representative at the CoE, said: “This is not diplomacy, this is a surrender”. According to his tweet[56] on the same occasion, five other countries opposed the decision, so the fight to keep Russia out of the Parliamentary Assembly was not over.  And Vyecheslav Volodin, speaker of the Russian State Duma also expressed caution.[57]

Next, on 26 June 2019, PACE members voted for a resolution in support of three key regulatory norms stipulating that the “rights to vote, speak and be represented in the Assembly and its bodies cannot be suspended or revoked or withdrawn in the context of a challenge to or reconsideration of credentials.” The following day all powers of the Russian delegation were confirmed in full and without any exemptions. After that the Russian delegates rejoined the PACE activities as full-fledged participants.

Proposals by Ukraine to impose further limitations on Russian participation were rejected. PACE adopted recommendations that Russia should implement, including: releasing the 24 detained Ukrainian sailors; and immediate payment of all financial contributions to the CoE. PACE also requested Russia’s full co-operation with the investigations of the shooting down of Malaysian Airlines’ flight MH17 and the murder of Boris Nemtsov, and urged vigorous measures to prevent violations of the human rights of lesbians, gays, bisexuals, transgender and intersex people, especially in Chechnya.[58]

On 2 July 2019, it emerged that Russia had paid its subscription to the CoE’s budget for 2019.  Lize Glas commented in a blog entitled “Russia left, threatened and won: Its return to the Assembly without sanctions.”[59] She continued:

Russia has won. The Assembly has not only lost this fight, but also part of its credibility by permitting Russia to return without attaching any ‘internal sanctions’. As can be inferred from the debate and the report of the Monitoring Committee, the Assembly was prepared to make this ‘concession’, not only because Russia threatened to leave the Council of Europe, which would be a major blow to the Russian population of about 145 million people[60], but also because non-payment of the Russian contribution to the Organisation’s budget would cause considerable difficulties for the Council of Europe. Therefore, one cannot help but wonder whether the Assembly would have taken a more principled stance, had the State in question been a State with a lower membership fee and, therefore, with less leverage (a third of the member States pays contributions that do not even cover the costs of a judge to the Court, an administrative officer and an assistant working full time).

On 29 August 2019, the Russian Prime Minister, Dmitry Medvedev, signed a decree ordering that Russia should additionally pay its debts to the CoE for 2017-2018. This payment amounted to € 54.6 million at the expense of the Federal budget.[61] President Macron of France gave his full support to Russia’s return. At the PACE session in October he said: “”I fully support the choice made in favor of letting Russia stay in the Council of Europe, because I am certain that the Russian people are close to European humanism. They participated in creating this humanism themselves.”[62] The EU is therefore split on the question of Russia.

So Russia had indeed won, and the nature of the deal which had been done is still not clear. Russia is still in illegal occupation of Crimea, and has not complied with the other PACE recommendations.

5. Constitutional amendments in 2020

Amendments to the Constitution of the Russian Federation[63] were proposed by President Putin in his message to the Federal Assembly on 15 January 2020[64] and adopted as the Law on Amendment No. 1-FKZ “On improving regulation of certain issues of the organisation and functioning of public authorities” dated 14 March, 2020[65]. On 16 March 2020 the CCRF ruled that the proposals were in accordance with the Constitution.[66] A total of 206 amendments were proposed to the Constitution, and all of them were submitted to the so-called all-Russian vote as a package. This was a “referendum” held in conditions of pandemic from 25 June to 1 July 2020, in accordance with Article 2 of the Law “On Amendments to the Constitution”. The referendum is legally referred to as an “All-Russian vote” (Russian: общероссийское голосование, romanized: obshcherossiyskoye golosovaniye), for it was not held in accordance with the Federal Constitutional Law “On the Referendum.”[67]

The amendments received public support, and on 3 July 2020, Mr Putin signed a decree on their entering into force the following day.

On 8 April 2020 Yulia Khalikova of the University of Bremen published an article on the Riddle website entitled “Russia’s cat and mouse game with international courts”[68]. She pointed out that Article 79 of the amended Constitution will now stipulate that decisions made by international institutions are not enforceable in Russia if their legal interpretation is contrary to the constitution. Secondly, the powers of the CCRF will be expanded: the amended Section Five of Article 125 of the Constitution gives it jurisdiction to consider such cases. Thus the CCRF will hear cases on the possibility of enforcing rulings made by international or foreign courts, including international arbitrations, if they are deemed contrary to the principles of public order.

According to Article 15 (4) of the 1993 Constitution international law already has priority over Russian law. However, according to Article 79 there are two conditions under which Russia cannot take part in the activities of international organisations: if doing so leads to a restriction of human rights and freedoms, and if it contradicts the fundamental principles of the country’s constitutional system. These restrictions will now affect all actions undertaken on the basis of international treaties ratified by Russia. Furthermore, the restriction on “decisions contrary to the principles of public order” establishes an additional basis for failing to comply with decisions of international courts. At the same time, it will be the task of the CCRF to clarify what exactly these principles are.

Conclusion

The ECHR and the case-law of the ECtHR are now deeply embedded in the Russian constitutional and legal systems. Very many judgments of the CCRF are replete with references to and citations from ECtHR judgments. Valery Zorkin, Chairman of the CCRF and Vyacheslav Lebedev Chairman of the SCRF, have made it clear that there is one court which is superior to them, the Strasbourg Court. As I have shown, the Secretary General of the CoE and the President of the ECtHR are frequent visitors to Moscow and St Peterburg, and it is more than apparent that Russia wants to stay in and that the CoE is equally anxious for Russia to stay. Many observers said that the crisis over PACE representation would lead either to Russia leaving or to its expulsion. But Russia won. The chances are that despite everything, Russia will, to the great advantage of those within its jurisdiction, for whom the ECtHR is indeed a final court of appeal, remain a member of the international institution it joined in 1996.   


[1] For my own contributions from 1997 see:

  • “Russia’s Accession to the Council of Europe and Human Rights: Compliance or Cross-Purposes?” (1997) 6 European Human Rights Law Review pp.628-643. This has been translated into Russian, and appears in Rossiiskii Byulleten po Prava Cheloveka (Russian Bulletin on Human Rights) Issue 10 1998, pp.12-23;
  • “Russia’s accession to the Council of Europe and human rights: four years on” (2000) European Human Rights Law Review Issue 4, p.362;
  • “Russia in a Common European Legal Space. Developing effective remedies for the violations of rights by public bodies: compliance with the European Convention on Human Rights” in Kaj Hober (ed) The Uppsala Yearbook of East European Law 2004  (London: Wildy, Simmonds and Hill, 2005) pp.89-116;
  • “Tensions Multiply between Russia and Council of Europe: Could the Malaise be Terminal?” (April 2008) Issue 6 The EU-Russia Review pp.4-12; at eu-russiacentre.org/assets/files/Review_FINAL16March_08.pdf;
  • “Russia and Human Rights: Incompatible Opposites?” Vol 1, No 2 (2009) Göttingen Journal of International Law pp. 257-278 at http://gojil.uni-goettingen.de/ojs/index.php/gojil/article/view/37/bowring.pdf;
  • “The Russian Federation, Protocol No. 14 (and 14bis), and the Battle for the Soul of the ECHR” Goettingen Journal of International Law 2 (2010) 2, 589-617;
  • “The Russian Federation and the Strasbourg Court: The Illegitimacy of Sovereignty?” in  Katja S Ziegler, Elizabeth Wicks, Loveday Hodson (eds) The UK and European Human Rights: A Strained Relationship? (Bloomsbury, 2015) pp.415-437;
  • “Does Russia have a human rights future in the Council of Europe and OSCE?”  in Doutje Lettinga & Lars van Troost (eds) Shifting Power and Human Rights Diplomacy: Russia (2017) Amnesty International Netherlands, pp. 53-63. at https://www.academia.edu/31979697/Shifting_Power_and_Human_Rights_Diplomacy_Russia?auto_accept_coauthor=true;
  • “Russian cases in the ECtHR and the question of implementation” in Lauri Mälksoo and Wolfgang Benedek (eds) Russia and the European Court of Human Rights: The Strasbourg Effect (Cambridge, Cambridge University Press, 2018), pp.188-221;
  • “Politics and Pragmatism: The Constitutional Court of the Russian Federation and Its 20 Years of Engagement with the European Convention on Human Rights” in v.1 n.1 (2018) East European Yearbook on Human Rights, pp.5-31;
  • “Russia and the Council of Europe: an incompatible ideology, and a transplanted legal regime?” in P. Sean Morris (ed) Russian Discourses on International Law: Sociological and Philosophical Phenomenon (Abingdon, Routledge: 2018) pp. 133-157;
  • “The crisis of the European Court of Human Rights in the face of authoritarian and populist regimes” in Avidan Kent, Nikos Skoutaris, Jamie Trinidad (eds) The Future of International Courts: Regional, Institutional and Procedural Challenges (Routledge 2019) pp.76-92.

[2] https://www.nytimes.com/1986/07/29/world/excerpts-from-gorbachev-s-speech.html . I watched this speech on TV in Krasnodar, and it was clear that the assembled apparatchiks were aghast when Gorbachev announced “Comrades, there will be a revolution!”.

[3] VSND SSSR ibid, 1991 No. 17, 502; see also Sovyetskaya Iustitsiya I 23 December1991, 17

[4] Vedomosti SSSR , 1991 No. 29, 842, 843

[5] See Lauri Mälksoo Russian Approaches to International Law (Oxford: OUP, 2015). For a critique see Bill Bowring, Review, v.85 n.1 (2015) British Yearbook of International Law, 189–193

[6] Bill BowringHuman Rights in Russia: A Discourse of Emancipation or Just Another Mirage?”in Istvan Pogany (ed) Human Rights in Eastern Europe (London: Edward Elgar, 1995) pp.87-110

[7] It should be noted that on the same day the state Duma voted, by an even larger majority, to ratify the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment (CPT)

[8] More than once in front of Judge Jean-Paul Costa, for whom I have the highest regard, including an in-country fact-finding hearing in Ipek v Turkey (Application no. 25760/94, judgment of 17 February 2004), from 18-20 November 2002, in Ankara.

[9] https://ehrac.org.uk/ ; https://ehrac.org.uk/about-our-work/where-we-work/russia/

[10] Ruling of the Plenary session of the Supreme Court of the Russian Federation No 5 ‘On application by courts of general jurisdiction of the commonly recognized principles and norms of the international law and the international treaties of the Russian Federation’ 10 October 2003 at www.supcourt.ru/catalog.php?c1=English&c2=Documents&c3=&id=6801

[11] Ruling of the Plenary session of the Supreme Court of the Russian Federation No.21  ‘On Application of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and Protocols thereto by the Courts of General Jurisdiction’ 27 June 2013. Available in English at www.supcourt.ru/catalog.php?c1=English&c2=Documents&c3=&id=9155

[12] https://www.echr.coe.int/Documents/CP_Russia_ENG.pdf

[13] See Bill Bowring ‘Russian cases in the ECtHR and the question of implementation’ in L. Mälksoo and W.Benedek (eds) Russia and the European Court of Human Rights: The Strasbourg Effect (2018) 188

[14] Published in Rossiiskaya Gazeta 27 July 2015, Federal edition No. 6734, at http://assembly.coe.int/nw/xml/News/News-View-EN.asp?newsid=5720&cat=15

http://www.rg.ru/2015/07/27/ks-dok.html

[15] Applications nos. 11157/04 and 15162/05

[16] http://www.kommersant.ru/doc/2767837

[17] http://www.kommersant.ru/doc/2768367 (accessed on 31 December 2015)

[18] Федеральный закон Российской Федерации от 14 декабря 2015 г. N 7-ФКЗ “О внесении изменений в Федеральный конституционный закон “О Конституционном Суде Российской Федерации” (Federalniy zakon Rossiiskoi Federatsii ot 14 Dekabrya 2015 N 7-FKZ “O vnesenii izmeneniy v Federalniy konstitutionniy zakon “O Konstitutsionnom Sude Rossiiskoi Federatsii”).

[19] http://newsru.com/russia/15dec2015/podpisal.html

[20] http://www.rg.ru/2015/12/15/ks-site-dok.html

[21] Application Nos. 11157/04 and 15162/05.

[22] Hirst v. the United Kingdom (No 2) [2005] ECHR 681, Application No. 74025/01, Judgment (Grand Chamber) of 6 October 2005.

[23] http://www.ejiltalk.org/russia-defies-strasbourg-is-contagion-spreading/ (accessed on 14 January 2018).

[24] http://ukhumanrightsblog.com/2013/11/21/hostility-to-the-european-court-and-the-risks-of-contagion-philip-leach-and-alice-donald/

[25] Nils Muižnieks “Observations for the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill” 10 October 2013, at https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2933800&SecMode=1&DocId=2062696&Usage=2

[26] http://ukhumanrightsblog.com/2013/11/21/hostility-to-the-european-court-and-the-risks-of-contagion-philip-leach-and-alice-donald/

[27] http://www.coe.int/en/web/secretary-general/news/-/asset_publisher/EYlBJNjXtA5U/content/russia-s-new-law-on-the-constitutional-court-jagland-a-solution-should-be-possible-/16695?desktop=true  (13 January 2018).

[28] No. 12- П/2016, 19 April 2016.

[29] For an early analysis, see Marina Aksenova “Anchugov and Gladkov Is Not Enforceable: The Russian Constitutional Court Opines in Its First ECtHR Implementation Case,” 25 April 2016, at http://opiniojuris.org/2016/04/25/anchugov-and-gladkov-is-not-enforceable-the-russian-constitutional-court-opines-in-its-first-ecthr-implementation-case/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+opiniojurisfeed+%28Opinio+Juris%29 – this article has very useful links.

[30] See J. Haak, ‘Constitutional Court of the Russian Federation, Decision from 19 April 2016, No. 12-P/16. An Assessment from a German Point of View’ 6 Journal of Siberian Federal University. Humanities & Social Sciences  (2017) 845

[31] CM/ResDH(2019)240

[32] See, for a very critical response, Gleb Bogush and Ausra Padskocimaite “Case Closed, but what about the Execution of the Judgment? The closure of Anchugov and Gladkov v. Russia” 30 October 2019, EJIL: Talk!, at https://www.ejiltalk.org/case-closed-but-what-about-the-execution-of-the-judgment-the-closure-of-anchugov-and-gladkov-v-russia/

[33] https://hudoc.exec.coe.int/eng#{%22EXECIdentifier%22:[%22DH-DD(2019)740E%22]}

[34] http://www.consultant.ru/document/cons_doc_LAW_10699/fbf561e8e76ded47846e0b625229d7933bbcc93a/

[35]https://zakon.ru/discussion/2016/12/06/predsedatel_espch_pohvalil_rossiyu_za_ispolnenie_reshenij_suda__otkrytie_devyatogo_sezda_sudej_prosh

[36] http://kommersant.ru/doc/3162703

[37]https://zakon.ru/discussion/2016/11/16/prezidium_vs_otpravil_delo_kirovlesa_na_novoe_rassmotrenie__posle_resheniya_espch_o_narushenii_prav_

[38] Navalny and Ofitserov v. Russia, Application Nos. 46632/13 and 28671/14, Judgment of 23 February 2016. The Russian courts had found the applicants guilty of acts indistinguishable from regular commercial activities. In other words, the criminal law had been arbitrarily construed to the applicants’ detriment. The courts had failed to address Mr. Navalny’s arguable allegation that the reasons for his prosecution were his political activities.

http://hudoc.echr.coe.int/eng?i=001-161060

[39] See https://rg.ru/2017/01/19/reg-szfo/konstitucionnyj-sud-rf-vynes-reshenie-po-delu-iukosa.html

Text of the judgment with the two dissenting judgments at http://doc.ksrf.ru/decision/KSRFDecision258613.pdf

[40] This is to be found on the website of the Russian CC at http://www.ksrf.ru/ru/Sessions/Documents/Yukos_Zaklyucheniye_30_11_2016.pdf

[41] A member of the Russian team from Moscow State University which became World Champion in March 2012 in the final in Washington DC of the Jessup International Law Moot Court Competition, see https://www.facebook.com/StudyInRussiaStudyInMoscow/photos/msu-team-wins-jessup-international-law-moot-court-competitionmoscow-state-univer/263034803802841/

[42] http://ilpp.ru/netcat_files/userfiles/Litigation_Treinings/Amicus/8_YUKOS_Amicus%20Curiae%20Brief_07-12-2016.pdf

[43] And see Anna Pushkarskaya, 24 January 2017, Kommersant, at http://www.kommersant.ru/doc/3200196

[44] http://www.assembly.coe.int/nw/xml/News/News-View-EN.asp?newsid=6484&lang=2&cat=9

[45] Maxim Timofeyev “Money Makes the Court Go Round: The Russian Constitutional Court’s Yukos Judgment,” at

[46] https://vodmanager.coe.int/cedh/webcast/cedh/2017-01-26-1/lang

[47] http://tass.com/world/927460. For a different point of view, see http://kommersant.ru/doc/3202083

[48] I have checked this against the Court’s webcast note 132.

[49] See I. Marchuk, ‘The Tale of Yukos and of the Russian Constitutional Court’s Rebellion against the European Court of Human Rights’ AIC Osservatorio Constituzionale 1, at http://www.osservatorioaic.it/download/_rNqUPZ7lCzoX8S2kDDq8rd_vfJT0AMXT3K31xgeAYY/marchuck-aksenova-definitivo.pdf

[50]DH-DD (2019)186; 1340th meeting (March 2019) (DH) – Rule 9.1 Communication from the applicant (21/02/2019) in the case of OAO NEFTYANAYA KOMPANIYA YUKOS v. Russian Federation (Application No. 14902/04) Drafted by Piers Gardner, counsel for the applicants. https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=0900001680932355; http://rm.coe.int/native/0900001680932355;

[51] See Bill Bowring “Who Are the “Crimean People” or “People of Crimea”? The Fate of the Crimean Tatars, Russia’s Legal Justification for Annexation, and Pandora’s Box” in Sergey Sayapin and Evhen Tsybulenko (eds) The Use of Force against Ukraine and International Law” Jus Ad Bellum, Jus In Bello, Jus Post Bellum (T M C Asser / Springer 2018) pp. 21-40,

[52]  The sanctions were imposed by the United States, the European Union (EU) and other countries and international organisations against Russian individuals, businesses and officials

[53] Leonid Bershidsky “Five Years Later, Putin Is Paying for Crimea” Bloomberg Opinion 16 March 2019 at  https://www.bloomberg.com/opinion/articles/2019-03-16/russia-s-annexation-of-crimea-5-years-ago-has-cost-putin-dearly

[54] https://www.independent.co.uk/news/world/europe/russia-cancels-council-of-europe-payment-members-persecuted-a7816951.html

[55] Jennifer Rankin, The Guardian, 17 May 2019, at

https://www.theguardian.com/world/2019/may/17/council-of-europe-votes-to-maintain-russia-membership-crimea

[56] https://twitter.com/DmytroKuleba/status/1129306035943071744

[57] http://tass.com/politics/1058908

[58] https://globalvoices.org/2019/09/24/russias-return-to-the-parliamentary-assembly-of-the-council-of-europe-diplomacy-or-defeat/

[59] https://strasbourgobservers.com/2019/07/02/russia-left-threatened-and-has-won-its-return-to-the-assembly-without-sanctions/

[60] See the Memorandum by Russian NGOs at

[61] https://tass.com/economy/1076413

[62] https://tass.com/world/1080748

[63] See William Partlett “Russia’s 2020 Constitutional Amendments: A Comparative Perspective” (Melbourne Legal Studies Research Paper Series No. 887) June 2020, at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3625390

[64] http://kremlin.ru/events/president/news/62582

[65] http://www.consultant.ru/document/cons_doc_LAW_346019/

[66] Zakluchenie No.1-3/2020, http://doc.ksrf.ru/decision/KSRFDecision459904.pdf

[67] Olga Sadovskaya, EU-Russia Civil Society Forum: “The New Russian Constitution as a Pandora’s Box” at

[68] https://www.ridl.io/en/russia-s-cat-and-mouse-game-with-international-courts/

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