Петиция в поддержку требований, выдвинутых Надеждой Толоконниковой в заявлении о голодовке/ Petition in support of the demands made by Nadezhda Tolokonnikova in her declaration of hunger strike

Уважаемые читатели,

На этой неделе в средствах массовой информации было опубликовано письмо Надежды Толоконниковой (заключенной участницы российской панк-группы Пусси Райот). В своем письме Надежда описывает бесчеловечные и унижающие достоинство человека условия пребывания в Исправительной Колонии №14. В частности, она заявляет, что заключенные женщины подвергаются рабскому обращению и принудительному труду, работая по 17 часов в день на швейном производстве по изготовлению формы для полицейских. Наказания за невыполнение нормы включают запрет на употребление пищи, запрет на отпраление естественных нужд и гигиены, стояние на морозе. По словам Надежды, в ее адрес поступали угрозы убийством или физической расправы от заместителя начальника этой колонии.

Вы можете прочитать письмо Надежды на русском языке, перейдя по ссылке. 

В результате Надежда объявила голодовку в ответ на ужасные условия пребывания в Исправительной Колонии № 14. Она готова продолжать голодовку до тех пор, пока администрация колонии не удовлетворит ее требования.

Вы можете помочь Надежде, подписав петицию в поддержку ее требований, адресованную Директору ФСИН РФ. Для этого пройдите по ссылке. 

Dear readers,

This week Nadezhda Tolokonnikova (a jailed member of the Russian Punk Band Pussy Riot) released a letter to mass media where she describes inhuman and degrading conditions and treatment at Correctional Colony No. 14. In particular, she claims that female inmates are treated like slaves and are subject to forced labour working 17 hours per day sewing police uniforms. Punishments for failing to meet the quotas included denial of food, prevention from using a bathroom, standing outside in the cold. Nadezhda also claims she was threatened with death or violence by the Deputy Chief of this colony.

You can read her letter in English by clicking the link. 

As a result, Nadezhda launched a hunger strike to protest against such horrible conditions in Correctional Colony No.14. She will continue the strike until her concerns are addressed.  

You can help Nadezhda by signing a petition in support of her demands addressed to the Director of the Penitentiary Service of the Russian Federation. To do so, please visit the link. 

ЕВРОПЕЙСКИЕ СУДЫ: юридический блог о праве Европейского Союза и судебной практике ЕСПЧ

Уважаемые читатели,

Я хотела бы познакомить вас с правовым блогом EUROPEAN COURTS (Европейские Суды), созданным в 2013 году Марком де Вердом, судьей Апелляционного Суда Амстердама (Нидерланды). Основными читателями и участниками блога являются судьи и юристы из Европы. Блог является своего рода платформой для обмена знаниями, опытом и идеями в области права Европейского Союза и практики Европейского Суда по Правам Человека. Цель блога состоит в том, чтобы укрепить сотрудничество и достичь взаимопонимание среди Европейских судей и юристов.

Участие судей и юристов из России в дискуссиях указанного блога более чем приветствуется. Если у вас есть интересные идеи и вы хотели бы опубликовать свою статью на сайте блога EUROPEAN COURTS, присылайте их на адрес электронной почты блога europeancourts@gmail.com или на мой адрес sg492@georgetown.edu (в случае владения только русским языком). Хотя использование русского языка при написании статей допускается, желательно их готовить на английском языке.

Кстати, сегодня была опубликована моя статья на сайте указанного блога с названием «Российская панк-группа Пусси Райот идет в Страсбург: песня в тональности мажор или минор?» Вы можете ознакомиться с содержанием моей статьи, пройдя по ссылке. 

ENGLISH VERSION:

EUROPEAN COURTS: EU and ECHR Law Blog

Dear readers,

I would like to introduce you to a law blog EUROPEAN COURTS created in 2013 by Marc de Werd, Justice in the Amsterdam Court of Appeal in the Netherlands. The main readers and participants of this blog are European judges and lawyers. This blog is a platform of exchange of knowledge, experience and ideas in the field of EU law and the ECHR case law. The objective of the blog is future cooperation and a better understanding among European judges and lawyers.

Russian judges and lawyers are more than welcome to participate in the discussions of this blog. If you have interesting ideas and would like to publish a post in the EUROPEAN COURTS law blog, you may send them to europeancourts@gmail.com or to my e-mail sg492@georgetown.edu (in case you know only Russian). It is desirable to draft your posts in English, though writing in Russian is also permitted.

By the way, today my post titled “Russian punk band Pussy Riot goes to Strasbourg: a song in major or minor?” was published in this blog. You can read it by clicking the link.  

Call for Applications – 2nd Martens Summer School on International Law

For the second time Martens Summer School on International Law organizes lectures devoted to comparative aspects of international law and human rights. A particular focus will be on issues related to Russia and Eastern Europe.  

Dates: 28 July – 2 August 2013

Location: Pärnu College, Estonia

The topics and lecturers will be the following:

· Professor Bill Bowring (Birkbeck College, London) “Litigating Russian Cases in the European Court of Human Rights”

· Professor Eduard Ivanov (Higher School of Economics, Moscow), “International Law and the Problem of Terrorism”

· Judge Angelika Nußberger (European Court of Human Rights, Strasbourg), “The Protection of Social and Economic Rights in Europe”

· Associate Professor René Värk (University of Tartu), “Challenges and Developments in International Humanitarian Law”

Each lecturer will present 5 lectures over 5 days of the week.

Professor Lauri Mälksoo (University of Tartu) will hold the Annual Lecture at the festive reception on 29 July, and will address newest research about the life and work of Friendrich Fromhold von Martens (1845 – 1909), the world-known Tsarist Russian international law expert.

Deadline for applications is 4 June 2013.

For more information on eligibility requirements, application process and study fees please visit the link.

American families challenge the Dima Yakovlev Law in the European Court of Human Rights

On 22 January 2013, four American families submitted an application to the ECHR asking the Court for urgent communication of their application to the Russian Government. All applicants were in the process of adopting Russian children, but could not finalize it due to enactment of the Dima Yakovlev Law by Russia, prohibiting US citizens from adopting Russian orphans. The applicants claim that by passing this Law Russia violated several Articles of the Convention. They also asked the ECHR to order the Russian Government to amend the respective legislation.

Each of the applicants claim that they had already established relationships with the orphans, and that the children had started calling their future adoptive parents “mom” and “dad.” For these reasons, according to the applicants’ attorneys, each of their applicants have formed a family with these children even without having official authorization from domestic courts for adoption. In the applicants’ view, the Dima Yakovlev Law violates their right to respect for private and family life (Article 8 of the Convention), since it impedes them to be with their future adoptive children.

Further, the applicants claim that this Law contradicts Article 3 (prohibition of torture) and Article 14 (prohibition of discrimination) of the Convention. The applicants also argue that they had no effective remedy to contest the Dima Yakovlev Law in Russia, referring to violation of Article 13 (right to an effective remedy) of the Convention. Though, it will be rather challenging to prove this, since the applicants did not try to apply to the Constitutional Court of the Russian Federation to claim unconstitutionality of this Law. It is likely that the Russian Government will use this argument to contest exhaustion of all domestic remedies by the applicants before lodging their application with the ECHR.

The Dima Yakovlev Law was named after a Russian boy, Dima Yakovlev, who was adopted by Miles Harrison, a US citizen. In July 2008 Dima died, when his adoptive father had left him in a car in boiling heat for about nine hours. The Dima Yakovlev Law was Russia’s response to enactment of the Magnitsky Bill in the United States that imposes certain financial sanctions on Russian officials allegedly responsible for the death of Russian lawyer Sergey Magnitsky and prohibits their entrance to the United States. 

Recent update: On 28 January 2013 the ECHR considered the application of the American families. On 29 January 2013 the complaint was communicated to the Russian Government. The Court asked the Russian authorities to reply to this application no later than 18 February 2013. 

The use of force by the Russian military and the violation of property rights

On 15 January 2012, the ECHR found Russia responsible for destruction of property in Chechnya during an exchange of fire between the Russian military and illegal armed groups in the case of Miltayev and Meltayeva v. Russia. This judgment contradicts conclusions of the domestic courts on the same matter as to the absence of State responsibility.

Both applicants ran a private photo laboratory in Chechnya. In 2001, a skirmish took place between the military and illegal armed groups, and the building where the applicants rented a room for their business was set on fire. As a result, their photo laboratory was destroyed. Reports of the local fire service and other commissions that inspected the site right after the attack indicated that the shelling was the cause of the fire. This fact was also confirmed by documents from the criminal investigation. Eye-witness statements pointed at shooting from a tank as a cause of the fire.

Regardless of the evidence submitted by the applicants to the domestic courts, the latter dismissed their compensation claims against the Russian Ministry of Defense due to the following reasons. First, in the courts’ view the Ministry had acted lawfully, since military operations in Chechnya were authorized by respective Presidential and Governmental Decrees. Second, the applicants had not presented evidence confirming that their property had been destroyed by a “source of increased danger” owned by State agents. The ECHR found the domestic courts’ decisions “arbitrary or manifestly unreasonable” and “irreconcilable with the body of evidence submitted by the applicants.”

In the Court’s view, the evidence presented by the applicants was sufficient to determine the existence of Russia’s interference with their property. The Russian Government did not argue as to the lawfulness, legitimate aim or proportionality of the interference with the applicants’ property. Further, according to the ECHR, the Russian laws that released State agents participating in a counter-terrorist operation from any liability for damage caused are formulated in vague and general terms and cannot serve as a sufficient legal basis for the destruction of an individual’s property. In this respect, the ECHR found that Russia violated the applicants’ right to respect their property (Article 1 of Protocol No. 1 to the Convention).

However, the Court dismissed the applicants’ just satisfaction claims, since the applicants failed to submit their claims to the ECHR within the time-limit after the communication of their complaint to the Russian Government. 

Konstantin Markin threw a military court into a dilemma: to side with the ECHR or to support the Constitutional Court of the Russian Federation

The case of Konstantin Markin v. Russia created a scandal between the ECHR and the Constitutional Court of the Russian Federation due to the fact that, for the first time, the ECHR seriously criticized the Constitutional Court’s arguments related to the same matter. As a result, Russian authorities, including the Constitutional Court, threatened to ignore the ECHR judgments when they affect Russia’s sovereignty and fundamental constitutional principles, and the Grand Chamber of the ECHR had to reconsider the case of Konstantin Markin v. Russia to alleviate the conflict.

The case of Konstantin Markin originated in 2005, when he was a divorced father of three minor children and a radio intelligence operator in the Russian armed forces. Since he was left to raise his children alone, he asked the head of his military unit for three years’ parental leave to take care of his children. His request was rejected since, according to Russian law, such leave could be granted only to female military personnel. Meanwhile, as concerns rights to parental leave, Russian law does not establish different treatment of civilian fathers and mothers that are both entitled to such leave.

Markin challenged the decision of his military unit in military courts claiming three years’ parental leave. In March and April 2006 the military courts dismissed his claims on the same grounds as having no basis in domestic law. Right after his unsuccessful court proceedings, the applicant lodged his complaint with the ECHR in May 2006. Interestingly, following submission of his application to the ECHR, in October 2006 the applicant’s military unit granted him approximately two years’ parental leave and financial aid of about 5,900 Euros contrary to the military courts decisions and domestic law.

Nevertheless, in 2008, Markin decided to apply to the Constitutional Court of the Russian Federation to challenge the provisions of the Military Service Act concerning parental leave. He claimed that inability of military fathers to take three years’ parental leave contradicts the principle of equality between men and women envisaged by the Russian Constitution. In 2009, the Constitutional Court rejected his application, stating, inter alia, that by signing a military service contract, a serviceman voluntarily accepts limitations on his civil rights and freedoms, which are necessary in order to create appropriate conditions for effective professional activity in defence of the country. The Constitutional Court also added that “if the serviceman decides to take care of his child himself, he is entitled to early termination of his service for family reasons.”

In October 2010, the ECHR delivered its Chamber judgment in case of Konstantin Markin v. Russia, where it found that refusal to grant the applicant three years’ parental leave violated Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the Convention. In the same judgment the ECHR seriously criticized the arguments of the Constitutional Court presented in its judgment of 2009 and instructed Russian authorities to change Russian legislation to put an end to the discrimination against male military personnel as concerns their right to parental leave.

This was the first time ever the ECHR directly criticized the Constitutional Court of the Russian Federation, which immediately gave rise to a high-profile scandal between Russian authorities and the ECHR. The Constitutional Court regarded this judgment as interference in the internal affairs of Russia, and a Russian Senator, Alexander Torshin suggested a rather radical bill that limits the ECHR influence on Russia’s legal system. According to Torshin, if the ECHR and the Constitutional Court of the Russian Federation have different opinions regarding Russian law, the last word should always belong to the Constitutional Court. For example, if the ECHR finds that Russian law violates the Convention its judgments should be executed only in those cases when the Constitutional Court of the Russian Federation recognizes this Russian law to be unconstitutional. The Secretary General of the Council of Europe was “very concerned” with such reaction of the Russian authorities, and commented as follows:

 “I take this very seriously, but I trust that there will be a thorough debate before any decision is taken as there could be serious consequences both for the Russian Federation and the Council of Europe”.

As a result of this scandal the ECHR reconsidered Markin case at the request of the Russian Government. The second judgment, which is final, was given by the Grand Chamber of the ECHR on 22 March 2012. The ECHR’s second ruling still contradicts the position of the Constitutional Court and it reconfirmed violations of Articles 14 and 8 of the Convention. However, the ECHR retracted its criticism of the Constitutional Court and direct order to amend Russian discriminatory legislation.

Following his final victory at the ECHR, Konstantin Markin reapplied to the military court with a request to reconsider his case. On 25 July 2012 the military court accepted his case and on 21 August 2012 began its review. The military court faces a rather difficult dilemma in this case: to support the ECHR or to side with the Constitutional Court of the Russian Federation. In order not to be between two fires the military court may refer this matter back to the Constitutional Court by sending a request to check again the constitutionality of the provisions that the ECHR found discriminatory. The Constitutional Court may either refuse to consider this request, since it previously ruled on the same matter in 2009, or find a compromise in order to eliminate a conflict with the ECHR. In fact, the Chairman of the Constitutional Court is ready to compromise. Since in its second final judgment one of the decisive factors for the ECHR was that Markin served as a radio intelligence operator and could be easily replaced by other servicemen or servicewomen, the Constitutional Court Chairman suggested to grant parental leave only to those servicemen that perform their duty as a military assistance personnel.

It appears that this case is a matter of principle for Konstantin Markin. After getting almost two years’ parental leave and financial aid on an exceptional basis from his military unit, winning his case in the ECHR, retiring from the military and remarrying his ex-wife, finishing his law studies and becoming a lawyer afterwards, Markin still wants to continue his struggle against discrimination of military male personnel as concerns the rights to parental leave. Thus, in parallel with his military court proceedings, he is going to apply to the Russian Government and the Russian Parliament with a request to amend discriminatory Russian legislation in accordance with international law.  

447 Russian nationals brought a complaint to the ECHR in connection with the terrorist attack in Beslan

On 2 May, 2012 the ECHR communicated to the Russian Government seven applications brought by 447 Russian nationals related to the terrorist attack in school No.1 in Beslan, North Ossetia, on 1-3 September 2004. Some of the applicants were taken hostage or injured during this attack. Some of them are relatives of those who were held hostage, injured or killed. The applicants claim that Russia violated the following articles of the Convention: Article 2 (the right to life), Article 3 (prohibition of inhuman and cruel treatment), Article 6 (the right to a fair trial), Article 8 (the right to respect for family life), Article 10 (the right to receive and impart information) and Article 13 (the right to an effective domestic remedy). The complete text of the application can be found here (type “Emma Lazarovna TAGAYEVA and Others against Russia and 6 other applications” in the “Text” box and click “Search”).

On 1 September 2004 about 1,128 people were taken hostage by a group of terrorists in school No. 1 in Beslan. Among the hostages were about 800 children aged between several months and eighteen years. As a result of the terroristic attack 385 people died, including 334 hostages, and 186 of them children. 728 hostages were injured, 10 FSB servicemen were killed and 55 servicemen of the army and other law enforcement authorities were wounded. 31 terrorists were killed, and 1 terrorists was later sentenced to life imprisonment by a national court.

The applicants claim, inter alia, that Russian officials failed to prevent this terrorist attack and were directly responsible for deaths of several people due to disproportionate use of force by the authorities when attacking the terrorists and failure to exhaust all peaceful means to resolve the situation.

In connection with these application the Court asked the applicants and the Russian Government several question, including the following:

- if the operative information available prior to the hostage-taking of 1 September 2004 allowed the relevant authorities to consider school no. 1 in Beslan as a possible target of a terrorist attack;

- if all necessary precautions were fully implemented by the authorities in practice;

- if the authorities provided adequate medical and rescue aid to the victims;

- if the State authorities employed lethal force which was absolutely necessary and if it resulted in deaths and injury of hostages;

- if the Operative Headquarters strategy was aimed at guaranteeing the security of a maximum possible number of persons.

It should be noted, that a similar case has been already examined by the Court (Finogenov and others v. Russia). It concerned the terrorist attack that took place on 23-26 October 2002 in the Dubrovka theater, Moscow, Russia. The applicants’ claims were very similar to those of Beslan victims. In its judgment of 20 December 2011 the ECHR found, inter alia, that Russian authorities breached Article 2 (right to life) due to their failure to adequately plan and conduct the rescue operation. The Court noted that 

“… the rescue operation of 26 October 2002 was not sufficiently prepared, in particular because of the inadequate information exchange between various services, belated beginning of the evacuation, limited on-the-field coordination of various services, lack of appropriate medical treatment and equipment on the spot, and inadequate logistics. The Court concludes that the State breached its positive obligations under Article 2 of the Convention.” 

Meanwhile, the Court found that the use of lethal force by the security forces was justified and the use of gas during the storming was not in the circumstances a disproportionate measure.