Право/13. Международное право

V.M. Abdrashitov, Candidate of Law, Associate Professor

The federal state budgetary educational Institution of higher professional education

«Volgograd state university»

Real problems of improving the rights and freedoms protection mechanism

In 1998 [1], having ratified the European Convention on Human Rights of 1950, Russia could to be called a state implementing the basic principles and humanitarian ideas for protecting human rights and freedoms through deep changes in legislation. Russia gradually but persistently brings national legislation into line with international legal standards on human rights. It is worth noting that since the ratification of the European Convention by the RF (the EC), more than 10,000 cases were brought to the European Court of Human Rights by the Russian citizens and some judgments were fully carried out.

Most of these complaints concerns remedying some of the human rights and freedoms violations, covering economic and labor ones, but there are also due process rights.

Under Article 15 § 4 and Article 46 of the RF Constitution every citizen of Russia is guaranteed state’s protection of human rights and liberties as well as international bodies’ protection, provided claimants must exhaust their options for recourse within their domestic legal systems before turning to the international organizations [2, 3].

Under Article 1 of the EC, having ratified the European Convention on Human Rights, the state takes a commitment which, under Article 57 of the Convention, provides a specific ban on the parties’ general reservations.

It should be mentioned that in some cases in order to produce response to their commitments under Article 1, the states have to take steps (as it happened to the RF) to improve the judicial system and law enforcement practices, and as well as domestic mechanisms to enforce and protect human rights. As international experience shows that it is much better to take these steps before joining the EC in order to avoid bringing claims to the European Court of numerous complaints on possible violations of the rights and freedoms of the Convention.

Secondly, under Article 1 of the EC, the ratifying the EC states should remedy all violations of human rights and freedoms which find defense in the European Convention on Human Rights. On the one hand, it limits the number of persons coming under the EC jurisdiction, on the other hand this expression merely establishes the necessary link between the notion "everyone" and the EC member states (or if there is a particular case brought to the European Court of Justice, the link between the victim of a violation and a member –state which has violated human rights). In other words, the state can exercise its powers relating to an individual.
As a general rule, the states determine their own jurisdiction themselves, but in reliance on the fact that they should count the restraints which are imposed by international law or as in our case by corresponding articles of the European Convention. For example, under Article 56 of the EC the EC member-states "in all their territories, or any of them which international relations they are responsible for" [4].

Moreover, among the recent decisions of the European Court of Justice there was a judgment on Loizidu case, where the court clearly defined its position on the question of the jurisdiction [5] when the Turkish government refused from its own jurisdiction over the actions of the armed forces invading the northern part of Cyprus. Without defining its position on the dispute between the parties, the Court made a decision about applicability of the provisions of Article 1 of the EC in this situation. If we turn to the current domestic situation, it turns out that in compliance with Articles 1,6,13 of the Convention Russia is obliged to provide a system of effective techniques, mechanisms, procedures for protecting human rights and freedoms through creating on its territory free and fair independent courts which follow the principles of competition, equality of the parties, openness and publicity.
It appears that it may be well achieved if we take into account the realities of modern Russia with its judicial and administrative reform under the way. It should be mentioned that the development of close relations with the European Community and the transfer of international principles and norms to the Russia legal system have already produced some response. Thus, the Constitutional Court of Russia in its decisions not only carries out the ideas of the EC and the International Covenant on Civil and Political Rights of 1966, but it refers to the articles of these international instruments and the decisions of the European Court of Human Rights. This positive trend can be proved the ruling of the Constitutional Court of Russia on June 27, 2000 upon the case of V.I. Maslov in accordance with Article 6 of the EC; the Court interpreted the article, regarding the European Court judgments relating to both civil and criminal cases.
Nowadays the European Court issued judgments against Russia; some of them were forced confirming a lot of human rights violations of Russia’s citizens to a fair and quick trial. This fact shows the need to develop this positive trend that is to keep pace with the modern, positive progress in world’s judicial systems ... the majority of European states, which follow the path of justice and law [6].

Till the 60s it was impossible for the states to unite efforts to protect their citizens’ interests through filing complaints due to imperfect legislation and weak legal and judicial practices.

Meanwhile, a proper solution was found. It may be called a universal compromise participation in a voluntary protocol. This provision is set in Article 25 of the European Convention.

The situation changed significantly when most states realized that a real possibility of filing an individual complaint against the state, its judicial system represents not only a great potential danger, but rather shows "...the level of development of the state, the quality of democracy and the nature of democratic institutions activity in the state as a whole..."[7].
It should be mentioned that the European Convention is not a concrete building and but a community-minded institution taking into account changes in legal and political environment not only in states but also in the world community. One can make such a conclusion by analyzing some of articles of the Convention which leave room for interpretation.
Taking into consideration that the Convention provides the right to respect for everyone’s life, the Convention and the Court are developing institutions, which strike all spheres of the member-states life.

It is clear that the doctrine of European precedent "is growing and will produce" in the Court of Human Rights. It seems that it deserves greater attention and consideration, especially if Russian courts comply with specific precedents set in the European Court of Human Rights, the level and quality of justice in Russia will increase[8].

References:

1. Orders of the President of RF, February 13, 1996. No. 66-op // Collected Legislation of the RF, No. 8, 09. 02. 96. Section Three. P. 743.

2. Federal Law "On ratification of the European Convention on Human Rights and Fundamental Freedoms", 30.03.98. // Collected Legislation of the RF No. 14, 06.04.98. Section 1. Art. 1514

3. The European Court of Human Rights. Select cases . Vol.2, M., 2000. P. 442.

4. International law in 3 Vol., Vol. 2, P.108.

5. The European Court of Human Rights. Select cases. Vol.2, M., 2000. P.442

6. Barr H. Human rights and Justice in the European Court. N.Y., Mc. Fin Press, 2002. Р.58.

7. The European Court of Human Rights. Select cases. Vol.2, M., 2000. P.463.

8. Topornin N. European Court of Justice on the threshold of XXI century // Rossiyskaya Yustitsiya, 1999. No. 8. P. 7.