Russia versus the European Court of Human Rights: bad news for online freedom of expression?

By Oleg Soldatov

One of the hopes associated with the collapse of the Soviet Union in 1991 was the establishment of new human rights standards in Russia , including the fundamental right to freedom of expression. The 1993 Russian Constitution provided guarantees for the rights and freedoms according to the universally recognised principles and norms of international law (Article 17 of the Constitution).

Notwithstanding these aspirations, the 6th Convocation (2011-2016) of the Russian Parliament (the State Duma) passed a long list of laws curbing online freedom of expression. In 2013, Federal Law No. 398-FZ came into force, allowing the state Internet watchdog Roskomnadzor to block websites disseminating statements calling for riots or containing other ‘extremist’ information with immediate effect, without a warning and without a court decision. In 2014 this law was joined by Federal Law No. 97-FZ, requiring the compulsory registration of all bloggers with more than 3000 visits a day with Roskomnadzor, and by Federal Law no. 242-FZ, prescribing that databases containing the personal data of Russian citizens shall be stored on servers that are physically located on the territory of the Russian Federation. Finally, in 2016, Federal Laws Nos. 374-FZ and 375-FZ, also known as Yarovaya’s Laws, further increased the state’s surveillance discretion in the domain of digital communications, mandating blanket data storage by Internet Service Providers (ISPs), allowing investigative authorities to access such data retroactively and legally obliging ISPs to help the investigative authorities decipher encrypted messages sent by users.

These changes, introduced with the principal rationalisation of curbing the terrorist threat, appear to be rather disturbing given the emergent problems with human rights standards in Russia. Europe may be on the brink of changes signifying the Russian departure from one of the most effective mechanisms of human rights protection: namely, the European Court of Human Rights (hereinafter – the ECtHR, the Court). By virtue of ratifying the European Convention on Human Rights in 1998, the Russian Federation has undertaken to comply with final judgements of the ECtHR in instances of finding violations of the Convention.

Respecting the Court’s judgements is one of the conditions of membership in the Council of Europe. Recently, the Committee of Ministers (the Council of Europe’s decision-taking body) has also been taking steps to ensure the enforcement of judgements dealing with online violations of Article 10 (freedom of expression): for instance, in the course of an enhanced supervision procedure concerning the execution of Ahmet Yildirim v Turkey , a 2012 judgement dealing with the restriction of access to the Internet.

Historically, Russia has been one of the leaders in generating the Court’s workload, and ‘has experienced a turbulent relationship with the European Court of Human Rights ever since it joined the Council of Europe’. In 2013, following a number of high-profile cases that the country lost in the Strasbourg Court, the Chairman of Russia’s Constitutional Court openly expressed his dissatisfaction with the outcome of several cases before the ECtHR.

The turbulence reached its peak on 14 July 2015, when Russia’s Constitutional Court ruled that the Constitution of the Russian Federation − as well as those laws that had already been declared constitutional by the country’s Constitutional Court − should take precedence over decisions of the European Court of Human Rights . The mechanism of establishing such a precedence, laid down in Federal Law No. 7-FKZ passed in December 2015, is ensured through adjudication by the Constitutional Court of the Russian Federation. This law was criticised by the Venice Commission . In its decision, the Russian Constitutional Court referred to several ECtHR judgements that, in the view of the Constitutional Court, were not in conformance with principles of the legal order of the Russian Federation and, ultimately, should not be executed.

Essentially, the ruling and the federal law in question give Russian authorities the right to ignore judgements of the European Court, based on the views expressed by the country’s Constitutional Court. On 19 April 2016, the Constitutional Court of the Russian Federation ruled for the first time that a decision of the Strasbourg Court of Human Rights could not be implemented in Russia because the measures aimed at its implementation would contradict the Constitution .

As seen from the examples of Italy , Germany and Spain , constitutional courts are quite often constrained by the imperative not to lose their privileged position as arbiters of fundamental rights ‘at the crossroads between the domestic and the international legal orders’ . At the same time, the codification in national legislation with regard to differences between national constitutional law and the Convention as interpreted by the ECtHR – and not just the acknowledgement of such differences in the ruling of the constitutional court – is exceptional. It provides evidence of the Russian Federation’s unwillingness to give up a part of its constitutional sovereignty unconditionally, and might set a dangerous precedent for other Council of Europe member states.

A cursory search of the ECtHR’s HUDOC case-law database in spring of 2017 showed that there are more than 5000 pending cases against Russia, which have been classified as potentially admissible and assigned to a Chamber, and in which the Court has communicated its questions to the parties. Almost 100 of these cases deal with Article 10 (freedom of expression) and more than 200 with Article 8 of the European Convention on Human Rights (private life). A substantial percentage  of the cases concern various Internet-related issues (more than two dozen as of April 2017, including cases by opposition leaders and Non-Governmental Organisations), and it remains to be seen how the Russian Federation will react to the potentially unfavourable outcomes of proceedings before the Court. It should be noted that some of the recent case-law developments concerning privacy and freedom of expression are found in judgements against Russia. For instance, according to ECtHR Judge Robert Spano , ‘the case of Roman Zakharov v Russia is the Court’s current most elaborate judgement on the issue of interception of data by police for law enforcement purposes’.

Other examples of relatively recent conclusions reached by the Court in contentious cases against Russia include the State’s obligation to protect freedom of expression against attacks coming from private individuals, covered in Shabanov v. Russia ; the idea that political controversy contributes by its very nature to general interest debates, reached in Filatenko v. Russia ; the unlawfulness of police databases tracking train and air travel about the country, commented upon in Shimovolos v Russia , and so on.

The last resort technique employed by the ECtHR is the indication of general measures in the operative part of its judgements. By means of its recourse to this technique, the Court not only points out the underlying problem a respondent state faces but also proposes a solution: for example, the introduction of effective domestic remedies in certain situations on a legislative level. If the author’s pessimistic view with regard to recent developments in Russia concerning regulation of the Internet proves to be true, the Court would, in the foreseeable future, experience an influx of cases dealing with the alleged incompatibility of the above-mentioned legislation with the Convention. Should the Court choose to side with critics of the Russian regulatory approach, such an influx is likely to lead to adoption of judgement(s) containing the general measures in its operative part. This judgement, potentially at odds with current Russian policy, could in turn trigger the mechanism of overruling the European Court of Human Rights by the Russian Constitutional Court.

Consequently, the contentious legislation presented in the beginning of this piece is unlikely to be annulled by the Russian legislature even after being criticised by the European Court of Human Rights, either on a case-by-case basis or by adopting an umbrella judgement indicating the general measures. To recapitulate, the current attitudes of Russian authorities towards the European Court of Human Rights can be summed up by the words of President Vladimir Putin , in whose view ‘[the European Court] does not regulate legal relations, does not protect rights, but simply executes some kind of political function’.

* Oleg Soldatov is a PhD researcher at Bocconi University in Milan, Italy. He used to work as a lawyer at the European Court of Human Rights in 2011-2014 and as a legal advisor at the Council of Europe in 2015-2016