What could
Belarus and the
Vatican have in common? It turns
out that only these two states, while being located in
Europe,
are not members of the Council of Europe. As a consequence the Belarusian
citizens are still denied the right to appeal to the European Court of Human
Rights after they have passed through all the steps of the national judiciary. However
the opportunity still exists. The European Court of Justice (also known as the
Strasbourg Court, after
the place of residence) began its operations in 1959 following the adoption of
the European Convention on Human Rights (ECHR), developed by the Council of
Europe. Initially, it was one of the three bodies that monitored the compliance
with the Convention by the Party States. Since 1998 they were merged under the
auspices of the court, which significantly increased the efficiency of its
work. The European Court of Justice is not the ultimate authority in relation
to the judicial system of the state, a party to the Convention. Therefore, it
can not override the verdict of the national court however it is entitled to rule
the “just satisfaction of the claim” for the winning side, as well as to order
a compensation for the moral damage. It is worth mentioning that for the long
history of the Court’s existence there was not a single case of non compliance
by a State, Party to the convention, with its decisions.
Relations between the Council of Europe and the
independent
Belarus
appeared uneasy. “On 16 September 1992 the Parliamentary Assembly of the
Council of Europe (PACE) has granted the status of a “special guest” to the Supreme
Soviet of the
Republic of
Belarus. On 12 March 1993
Belarus
applied for the membership in the Council of Europe. In January 1997 the Bureau
of PACE has decided to suspend the status of a “special guest” in respect to
the Parliament of Belarus, which has also discontinued its consideration of the
application of Belarus for the membership in the Council of Europe and froze
the bilateral programme of cooperation”, dryly says a web resource of the Belarus
Foreign Ministry, without giving the reasons behind it. The situation is
clarified in the PACE statement of 1996: "The amended constitution in the course
of the referendum does not respect the minimum democratic standards and
violates principles of separation of powers and the rule of law."
The OSCE Special Rapporteur Adrian Severin three years
ago favorably recommended that the Belarusian authorities ratified the European
Convention on Human Rights and accepted the jurisdiction of the European Court
of Justice before the country becomes a full member of the Council of Europe. According
to him, "Perhaps, Belarusians have a need in such protection more than
others". There was no reaction of the official
Minsk that followed.
Opinions of national legal experts about the basic for
the members of the Council of Europe European Convention on Human Rights
strongly resemble pharisaism. While talking about the failure to sign the Convention
by
Belarus
Mr. G. Vasiljević in 2002 (then the Head of the Constitutional Court of
Belarus) said that “the current Constitution of the Republic of Belarus and the
text of the ECHR are mostly similar”, therefore “ while fulfilling the
requirements of the constitution, thus Belarusians fulfill the provisions of
the ECHR”.
In December 2009 a European Commissioner B.
Ferrero-Waldner voiced the criteria for participation in the EU Eastern
Partnership Programme for
Belarus.
Among them, the unification of the legislation in accordance with the legal
framework of the EU and, what is even more important, to recognize the
European Court
verdicts. What are the risks for the existing political regime in the country
in this regard?
Our neighbors in the former
Soviet
Union, a member of the Council of Europe, by number of downloads
of their citizens in the
Strasbourg
Court are the leader. At the end of 2008 28% of
all cases dealt with at the time the European Court of Human Rights - that the
claims of Russian citizens in the
Russian Federation. Not lagging
behind, and
Ukraine:
4 out of 46 European countries by the number of requests to the European Court
of Justice.
Since 1 January 2008
Russia
lost to its nationals in
Strasbourg 9 million 317
thousand 436 Euro and this amount continues to grow, said the
U.S. edition of
The Time magazine. In 2007 the Russian side lost at
Strasbourg 140 cases that cost the treasury 4.3
million Euro. Having said that the percentage of cases, which
Russia won vis-à-vis its citizens in
Strasbourg is only 2.1.
The
European
Court recognizes the claim of Aleksei Mikheev to the
Russian authorities and obliged to pay the plaintiff 250,000 Euro of
compensation. A. Mikheyev was tortured during the preliminary investigation of a
criminal case and has become chained to a wheelchair for a lifetime as a result.
A 163,000 Euro compensation received five family members of those who were
killed by the Russian military residents of the
Chechen
Republic.
The largest claim in the history of the
Strasbourg Court in the amount of 34
billion US Dollars has been accepted for consideration from the Russian oil
company Yukos. The positive decision of the court in this lawsuit could affect
the fate of imprisoned M. Khodorkovsky and as some observers believe it may
break forever the relations between
Russia and the Council of Europe
and the European Court of Human Rights.
Other facts support these trends. For example,
recently the Russian President talked about the need to reform the judiciary, due
to the fact that “the
Strasbourg Court
could not substitute for the national courts”. He is obviously concerned about the
discreditation of the Russian justice in the eyes of the European community. In
2006 the State Duma of the
Russian
Federation, in its turn, refused to ratify
the revision of the procedures of the European Court of Human Rights that
objectively impeded the efficiency and dynamics of its work. In this case the
number of verdicts against
Russia
would increase dramatically and, respectively, more money would have to be paid
from the state’s purse to its citizens.
Belarus
also became a party to the proceedings in
Strasbourg.
According to the procedure, Belarusian citizens can file a complaint against a
third State which is a signatory of the Convention. The
European Court prohibited the extradition
from
Ukraine
to Belarus of Igor Koktysh, where he could allegedly be tortured in order to
extort confessions of a murder. In this case, he would face the death penalty
which is banned by the European Convention on Human Rights. According to I.
Koktysh, a criminal case had been falsified by the law enforcement authorities of
Baranovichi as
a revenge for the public and missionary activities of the accused. In 2001 the
Brest Regional Court
found him not guilty, and on 1 February 2002 the Supreme Court of Belarus has
left the decision in force. However in 2002 the Prosecutor General of
Belarus
appealed this verdict and the case was returned for reconsideration. In October
2003 Igor Koktysh was forced to leave
Belarus
for
Ukraine.
Head of the Belarusian Youth Union Valery Savenkov won
a case against
Lithuania
in the European Court of Human Rights, AFP reported. Savenkov was sentenced to
5 years and 10 months' of imprisonment on the charges of robbery. While in
prison, Savenkov complained to the
Strasbourg
Court on “the lack of soap and toilet paper”. Also,
in his opinion, his correspondence has been censored.
Lithuania is
obliged to pay to Savenkov five thousand Euro in compensation for moral damage.
While recognizing the jurisdiction of the
European Court and
ratifying the Convention the Belarusian authorities would find themselves in an
awkward position.
Belarus
can become a real hostage to the financial inefficiency of its judicial system.
The list of high-profile cases that are stuck on the top of the national trials
is impressive. Those include cases of the disappeared politicians, opponents of
the authorities; as well as claims of thousands of ordinary citizens affected
by a dependent judiciary and the voluntarism of the law enforcement agencies. The
Chairman of an NGO “Legal aid to the population” Oleg Volchek, while commenting
on the recent rejection by the court of his lawsuit against the “SB-Soviet
Belarus” newspaper said that such cases have no statute of limitations. If
Brussels is to show commitment to its own requirements to
the
Minsk
authorities, the offender may be punished faster than this human rights
activist expects.
Sergey Martselev, political analyst
[email protected]
