Lemke, Stefanie

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BLOG SERVICE COMMUNITY ABOUT !STEFANIIE  LEMKE — 29 January, 2018 Print " 0 ! " # $RUSSIAN PERSPECTIVES ON INTERNATIONAL LAW SYMPOSIUMWho Holds Russia’s Judgesand Public Prosecutors toAccount?How the International Community Fails to Effectively AddressJudicial Harassment of Human Rights Defenders in theRussian FederationThis  piece  is  about  the  growing  number  of  politically-motivatedcharges and convictions against human rights defenders in Russia andthe absence of credible monitoring or audit procedures to hold judgesand  public  prosecutors  to  account  for  their  misconduct.  Despitepolitical  backlashes  to  judicial  independence  in  countries  such  asHungary and Poland, Europe is generally perceived as a powerhousefor a strong and working justice system in which courts protect humanrights and uphold the rule of law. A danger to a strong and workingjustice  system arises  when governments  abandon the  separation  ofpowers,  exerting  significant  power  over  judicial  authorities.  In  thiscontext,  the  political  environment  in  which  judges  and  publicprosecutors  operate  and  structural  arrangements  employed  by  theexecutive branch to curtail their independence can play a crucial partin  the  politicisation  of  a  judicial  system.  Ways  to  align  judges  andpublic  prosecutors  with  government  policies  can  be,  for  example,Who Holds Russia’s Judges and Public Prosecutors to Account? ... http://voelkerrechtsblog.org/who-holds-russias-judges-and-publi...1 von 9 29.01.18, 10:06having no secure tenure in place and the (mass) removal of judges andprosecutors, without following clear, objective and fair rules. In view ofRussia,  an increasing number of judges and public prosecutors havebeen  brought  politically  motivated  charges  and  convictions.Specifically,  they  have  used  their  powers  to  silence  human  rightsdefenders.Judges  and  public  prosecutors  are  supposed  to  set  an  example  tosociety in the protection of human rights, meaning that their actionsshould  respond  to  human  rights  standards.  Professional  integrityobligations, such as making decisions based on the application of legalrules, through legal reasoning and findings of facts that are based onevidence and analysis,  and performing their professional  duties freefrom  external  pressures  or  interferences  from  the  government  orparliament,  are  central  to  their  work.[1]  In  2013,  the  UN  SpecialRapporteur  on  the  Situation  of  Human  Rights  Defenders,  however,warned that ‘the space for civil society and defenders visibly shrink incertain  regions  of  the  world’  by  ‘the  application  of  legal  andadministrative  provisions  or  the  misuse  of  the  judicial  system  tocriminalise and stigmatise their activities’.  This is also illustrated byJafarov v Azerbaijan in which the ECtHR affirmed for the very first timethat  charges  brought  against  a  prominent  Azerbaijani  human rightsdefender  served  the  sole  purpose  of  punishing  him  for  his  humanrights activities.  The ECtHR criticized the Azerbaijan courts for thefailure to base their actions against Mr. Jafarov on sufficient evidence.Additionally, the ECtHR considered it necessary to point out that ‘in ademocratic society both the courts and the investigation authoritiesmust remain free from political pressure’.In  Russia,  judges  and  public  prosecutors  have  been  increasinglyinvolved in silencing human rights defenders.[4] Although the equalityof arms and the right to adversarial trial are guarantees of the RussianConstitution, many cases show deep flaws within the criminal justicesystem and gross misconduct of the judiciary and prosecution. Thisincludes using fabricated evidence, forced confessions and impunityfor  perpetrators  of  crimes.  At  the  same  time,  both  professionsdeliberately  target  activists.  The office of  the prosecutor  general  in2013  launched  a  nationwide  campaign  of  extraordinary  andunannounced inspections of civil society organizations. The campaign[2][3]Who Holds Russia’s Judges and Public Prosecutors to Account? ... http://voelkerrechtsblog.org/who-holds-russias-judges-and-publi...2 von 9 29.01.18, 10:06intended to intimidate and force human rights defenders to registerwith  the  ‘foreign  agents’  roster’.  Lower  rank  prosecutors  wereinstructed by the general prosecutor to search, in cooperation withthe ministry of justice, the federal tax service and other governmentagencies,  human rights  groups and non-governmental  organisationsthat receive foreign funding.  The inspections were unprecedented intheir scale and scope. In the history of modern Russia, there has neverbeen such a wide-scale campaign against legal entities. According tothe  Office  of  the  Prosecutor  General,  public  prosecutors  searchedabout 1,000 non-governmental organisations in the first six months of2013 alone.  A report published by the ‘Closed Society’, documentingmore  than  300  of  these  inspections,  showed  that  they  targetedespecially Russian civil  society organisation and Russian branches offoreign  human rights  organisations  (e.g.,  Amnesty  International  andHuman Rights Watch).  Both organisations had in common that theyaddressed political sensitive matters, such as the protection of humanrights and government transparency, and received a certain amount offoreign funding.Judges  regularly  side  with  public  prosecutors  and find the  accusedguilty,  without  reassessing  the  evidence.  Evidence  obtained  byinvestigation bodies is usually regarded as true and consistent whiletestimony  given  by  the  defence  is  dismissed  as  unreliable[9].  TheECtHR repeatedly ruled that the right to a fair trial is one of Russia’smost  frequently  violated  rights,  with  a  striking  number  of  casesoriginating from the North Caucasus. In the case of Suren Gazaryanand  Evgeny  Vitishko,  members  of  Environmental  Watch  on  NorthCaucasus,  the  activists  had  exposed  violations  of  environmentalprotection laws in the run-up of the Sochi Olympics for which theywere charged with damage to propriety and sentenced to three yearsin prison.  Their names became synonymous with judicial harassmentof human rights defenders and environmental activists in Russia,  thecriminal charges were widely seen as revenge for their work.  Ms.Gazaryan and Mr. Vitishko protested against a fence that was illegallyconstructed in a forest, and spray-painted ‘This is our forest’ on it. Thefence surrounded the residence of Mr. Tkachev, the then governor ofKrasnodar  Region  and  now  federal  minister  of  agriculture.  Theirargument that the fence was constructed illegally was dismissed by thecourt  as  not  relevant,  without  any  further  examination.  During  the[5][6][7][8][10][11][12][13]Who Holds Russia’s Judges and Public Prosecutors to Account? ... http://voelkerrechtsblog.org/who-holds-russias-judges-and-publi...3 von 9 29.01.18, 10:06pre-trial stage, the public prosecutor even denied the very existence ofthe fence in response to a complaint filed by both activists.The UN Human Rights Committee expressed concern ‘about the lowacquittal  rate  and  the  high  percentage  of  acquittals  overturned  onappeal’  in Russia.  On average,  only 0.4 per cent of  criminal  trialsresult in an acquittal.  Besides,  civil  society leaders are frequentlycharged for  criticizing political  authorities  online (e.g.,  in  blogs andsocial networks). This is reflected by the case of Yuriy Dmitriyev, leaderof a regional branch of the Russian human rights NGO ‘Memorial’, whowas  arrested  by  Petrozavodsk  City  Court  in  December  2016.  Mr.Dmitriyev was charged with allegedly producing child pornography byposting a photo of his underage stepdaughter on a social network.  Itis  reported  that  the  photo  in  question  was  posted  without  Mr.Dmitriyev’s  knowledge  and consent.  The  investigation  bodies  didnot  include  any  circumstances  in  their  case  assessment  that  couldhave supported the position of Mr. Dmitriyev, such as his low risk ofescape  and  lack  of  tampering  with  evidence.  Despite  this,  Mr.Dmitriyev’s  stepdaughter  was  subsequently  taken into  care  by  localauthorities.  Russian media reported that Mr. Dmitriyev’s arrest hadbeen  an  act  of  revenge  against  his  research  on  personal  details  ofofficers  of  the  former  People’s  Commissariat  for  Internal  Affairs(‘NKVD’) known for its political repressions under Stalin.In  many  countries,  judicial  councils  have  the  role  to  detect  andcorroborate breaches of standards, including human rights abuses. Ifthe  judiciary  and  the  prosecution,  however,  are  controlled  by  thegovernment  they  will  be  less  likely  to  oppose  unlawful  orders  bysuperiors  and  be  held  responsible  for  their  misconduct.  Notsurprisingly,  Russian  judges  and  public  prosecutors  do  not  facedisciplinary  or  criminal  consequences  for  their  wrongdoings.Additionally,  there  are  currently  no  credible  audit  or  monitoringinstruments  at  international  or  European  level  in  place  that  couldoversee  actions  of  and  impose  sanctions  on  individual  judges  andpublic  prosecutors  who  fail  to  comply  with  their  human  rightsobligations  under  international  law.  Complaints  and  reportingmechanisms  provided  by,  for  example,  the  UN  do  not  periodicallyreview or sanction the human rights violations of judicial authoritiesand  are  often  only  mandated  to  adopt  ‘concluding  observations’.[14][15][16][17][18][19][20]Who Holds Russia’s Judges and Public Prosecutors to Account? ... http://voelkerrechtsblog.org/who-holds-russias-judges-and-publi...4 von 9 29.01.18, 10:06Addressing the accountability  of  judges and public  prosecutors alsofalls short at European level. The ECtHR has the authority to review acountry’s  judicial  wrongdoings  and  issue  decisions  on  individualcomplaints of human rights abuse perpetrated by or with complicity ofjudges  and  public  prosecutors.  But  rulings  focusing  on  politically-motivated charges and convictions by judicial authorities are rare inpractice.Nevertheless, there is much promising (but yet underutilised) potentialat both international and European level.  International organisationsand  professional  associations  are  capable  to  strengthen  theprofessional integrity of judges and public prosecutors. For instance,the Bureau of the Consultative Council of European Judges (CCJE) andthe  Bureau  of  the  Consultative  Council  of  European  Prosecutors(CCPE) are uniquely placed to draw attention to the situation of humanrights defenders in Russia and other member states as they are taskedwith  looking  into  specific  problems  concerning  the  status  and  thesituation of judges and public prosecutors. Yet they have not set upinstitutional human rights mechanisms, such as requiring members tocomplete  an  annual  questionnaire  and  organising  country  visits  toidentify best practices that could help the CCJE’s and CCPE’s to stepup their professional integrity polices. Besides, establishing an ‘urgentappeal’ procedure for cases in which the CCJE and the CCPE may playa  role  in  preventing  or  mitigating  human  rights  abuses  by  judicialauthorities of the Council of Europe member states (e.g., in situationsin which physical and/or mental integrity of an individual or a group isconcerned) could contribute to important change in countries, such asRussia, where human rights defenders are at risk.Dr.  iur.  Stefanie  Lemke  is  a  research  fellow  in  European  criminalprocedure  with  Maastricht  University  and  an  adviser  on  judicialaccountability to the Netherlands Helsinki Committee (NHC), The Hague.She  has  been  appointed  National  Expert  in  victims’  rights  by  theEuropean Commission (2017-2019).This  contribution is  based on a report  that  was commissioned in thecontext of the project ‘Increasing Accountability and Respect for HumanRights  by Judicial  Authorities’  by  the Netherlands Helsinki  Committee(‘NHC’), which was released in February 2017 and presented inter alia atWho Holds Russia’s Judges and Public Prosecutors to Account? ... http://voelkerrechtsblog.org/who-holds-russias-judges-and-publi...5 von 9 29.01.18, 10:06the Council of Europe and the OSCE. [1] Bangalore Principles, principle 5; Magna Carta of Judges, rule 11; UNGuidelines on the role of prosecutors, rule 14.[2] UN Doc A/HRC/RES/22/6 (2013).[3] Rasul Jafarov v Azerbaijan App no 69981/14 (ECtHR, 17 March 2016).[4] See, e.g., Freedom House, The Global Echo of Moscow’s RepressiveHuman  Rights  Practices  <https://freedomhouse.org/article/global-echo-moscows-repressive-human-rights-practices>  (accessed  22January 2018).[5] See, e.g., Human Rights Watch, Laws of Attrition: Crackdown on TheRussian Federation’s Civil Society after Putin’s Return to the Presidency(24  April  2013)  <https://www.hrw.org/report/2013/04/24/laws-attrition/crackdown-the  Russian  Federations-civil-society-after-putins-return-presidency> (accessed 22 January 2018).[6]  Prosecutor  General,  Order  of  27  December  2012,  no27-07-2012/14п1861-12в (not published).[7]  Prosecutor  General,  Report  by  the  Prosecutor  General  to  theCouncil  of  Federation  (10  July  2013)  <http://genproc.gov.ru/smi/interview_and_appearences/appearences/83568/>  (accessed22 January 2018).[8]  Closed  Society,  Analytics  <http://closedsociety.org/analytics/>(accessed 22 January 2018).[9] This is reflected by the case of Valentina Cherevatenko, chair of theNGO ‘Women of  the Don’  and laureate of  the 2016 Franco-GermanPrize for Human Rights.  Criminal proceedings were initiated againstMs. Cherevatenko for allegedly failing to register as ‘foreign agent’. Thearguments put forward by her lawyer, claiming that the prosecutionlacked a legal basis for bringing charges against her, were dismissed bythe Leninskiy District Court of Rostov-on-Don and the regional courtof appeal. The judges limited their judicial review to the issue of theWho Holds Russia’s Judges and Public Prosecutors to Account? ... http://voelkerrechtsblog.org/who-holds-russias-judges-and-publi...6 von 9 29.01.18, 10:06formal legality of the case. See, e.g., UK Government, Human RightsPriority Country Update Report: January to June 2016  (updated on 21July  2016)  <https://www.gov.uk/government/publications/russia-human-rights-priority-country/human-rights-priority-country-update-report-january-to-june-2016> (accessed on 22 January 2018).[10] Navalnyy and Yashin v The Russian Federation App no.  76204/11(ECtHR,  20  April  2015);  Karelin  v  The  Russian  Federation  App  no.926/08 (ECtHR, 20 September 2016); Kasparov and Others v The RussiaApp no. 51988/07 (ECtHR, 13 December 2016); Navalnyy v. The RussianFederation  App  nos.  29580/12,  36847/12,  11252/13,  12317/13  and43746/14 (ECtHR, 2 February 2017); Lashmankin and Others v RussianFederation App nos. 57818/09 and 14 others (ECtHR, 7 February 2017).[11]  See,  e.g.,  Amnesty International,  The  Russian  Federation:  Releaseenvironmentalist  banished  to  a  prison  colony  (15  April  2015)<https://www.amnesty.org/en/latest/news/2015/04/the  RussianFederation-release-yevgeniy-vitishko/> (accessed 22 January 2018).[12] See, e.g., International Federation for Human Rights (FIDH), Russia:Prolonged  arbitrary  detention  of  environmental  rights  activist  Mr.Evgeny Vitishko (3 December 2015) <https://www.fidh.org/en/issues/human-rights-defenders/the  Russian  Federationn-federation-prolonged-arbitrary-detention-of-environmental>  (accessed  22January 2018).[13]  See,  e.g.,  Shaun  Walker,  Sochi  environmentalist  jailed  for  threeyears  for  spray-painting  a  fence,  The  Guardian  (12  February  2014)<https://www.theguardian.com/environment/2014/feb/12/sochi-environmentalist-jailed-painting-fence-revenge> (accessed 22 January2018).[14]  Sergey Golubok,  The  Role  of  the  Judiciary  in  the  Prosecution  ofHuman Rights Defenders and Non-Governmental Organizations in theRussia (The Hague: Netherlands Helsinki Committee and the HelsinkiFoundation for Human Rights 2016).[15] UN  Human  Rights  Committee  ‘Concluding  Observations  of  theHuman  Rights  Committee  on  the  Seventh  Periodic  Report  of  theRussian Federation’, CCPR/C/RUS/CO/7 (28 April 2015), § 17.Who Holds Russia’s Judges and Public Prosecutors to Account? ... http://voelkerrechtsblog.org/who-holds-russias-judges-and-publi...7 von 9 29.01.18, 10:06[16] Sergey Golubok, note 15.[17]  As  reported  (in  Russian)  at  <https://7×7-journal.ru/anewsitem/90125> (accessed 22 January 2018).[18]  As reported (in Russian)  at  <https://7×7-journal.ru/item/90170>(accessed 22 January 2018).[19]  Reported  by  Novaya  Gazeta  (in  Russian)  at<https://www.novayagazeta.ru/articles/2016/12/21/70964-papa-skazal-chto-so-vsem-razberetsya> (accessed 22 January 2018).[20]  Reported  by  Novaya  Gazeta  (in  Russian)  at<https://www.novayagazeta.ru/articles/2016/12/21/70964-papa-skazal-chto-so-vsem-razberetsya> (accessed 22 January 2018).Cite as: Stefanie Lemke, “Who Holds Russia’s Judgesand Public Prosecutors to Account?”, Völkerrechtsblog,29 January 2018, doi: 10.17176/20180129-100558.ISSN 2510-2567Print Facebook Twitter Email   RelatedThe UK’s PotentialWithdrawal from theECHRSelecting Europe’s Judges:on the Evolving Legitimacyof Appointments inLuxembourg andStrasbourgJudicial appointments andthe right kind of politics17 December, 2014In "Symposium"16 July, 2014In "Discussion"21 July, 2014In "Discussion"PREVIOUS POSTIs Russia the Guardian ofHumanitarian#NEXT POSTThis is the most recentstory.Who Holds Russia’s Judges and Public Prosecutors to Account? ... http://voelkerrechtsblog.org/who-holds-russias-judges-and-publi...8 von 9 29.01.18, 10:06No CommentLeave a replyLogged in as ajv2016. Log out?SUBMIT COMMENTNotify me of follow-up comments by email.Notify me of new posts by email.Intervention?Copyright © 2016 · | ISSN 2510-2567 | Impressum & Legal % ! & "Who Holds Russia’s Judges and Public Prosecutors to Account? ... http://voelkerrechtsblog.org/who-holds-russias-judges-and-publi...9 von 9 29.01.18, 10:06

Who Holds Russia’s Judges and Public Prosecutors to Account?: How the International Community Fails to Effectively Address Judicial Harassment of Human Rights Defenders in the Russian Federation

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Who Holds Russia’s Judges and Public Prosecutors to Account?: How the International Community Fails to Effectively Address Judicial Harassment of Human Rights Defenders in the Russian Federation

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