RAPPORTEUR GROUP

Legal co-operation

GR-J(2023)29

14 November 2023[1]

Options under international law aimed at securing the payment by the Russian Federation of just satisfaction awarded by the European Court of Human Rights – Possible referral to CAHDI Item to be considered by the GR-J at its meeting on 28 November 2023

 

At the outset it is recalled that the Russian Federation ceased to be a High Contracting Party to the European Convention on Human Rights on 16 September 2022, and that the Court remains competent to deal with applications directed against the Russian Federation in relation to acts or omissions capable of constituting a violation of the Convention provided that they occurred until 16 September 2022. The Committee of Ministers will continue to supervise the execution of the judgments and friendly settlements concerned and the Russian Federation is required to implement them.

However, since 3 March 2022, the Russian authorities have ceased all communication with the Secretariat and have failed to participate in the Committee of Ministers’ Human Rights meetings (DH). The Secretariat has continued to write to the Russian authorities notably to request information on cases, to seek submission of action plans/reports and to forward communications received under Rule 9[2]. Moreover, following the invitation of the Committee, the Secretary General sent letters to the Minister of Foreign Affairs of the Russian Federation after each DH meeting, informing the Russian authorities of the decisions and resolutions adopted by the Committee in cases where the Russian Federation is the respondent State, urging the authorities to abide by the judgments of the European Court. Nonetheless, the authorities’ failure to communicate in respect of the judgments pending against them remains unchanged. Moreover, the Russian Federation recently adopted laws intended to block the execution of judgments.^[3]

Against this background the Committee has adopted to date three strategy papers for the treatment of the pending cases against the Russian Federation. Most recently, at its 1475^th meeting (DH) held in September 2023, the Committee examined the third of those three papers[4] and adopted decisions in that respect[5]. It emerged from those discussions that it may be relevant in the context to explore options under international law aimed at securing the payment by the Russian Federation of just satisfaction awarded by the European Court.

The present situation concerning the just satisfaction is as follows: information as regards the payment of just satisfaction was missing in 1,257 cases. As of 8 November 2023, the total outstanding amount stood at over 2.2 billion euros.^[6] This includes the sums awarded by the court in the two interstate cases pending execution against the Russian Federation: in the case of Georgia v. Russia (I) the Court awarded EUR 10,000,000, which by 8 November 2023 had accrued interest for non-payment of EUR 1,843,904.11, and in the case of Georgia v. Russia (II), in its just satisfaction judgment of 28 April 2023, the Court awarded just satisfaction in the amount of EUR 129,827,500.^[7]

The enforcement system set up by the Convention is inherently non-coercive. It is based on dialogue and diplomatic or political peer pressure, with a range of possible steps, including ultimately expulsion from the Council of Europe. However, the Russian Federation is no longer a member State and the tools normally at the disposal of the Committee of Ministers have been exhausted or are no longer available or relevant. Furthermore, as seen from the factual situation as regards just satisfaction payments, the Russian Federation no longer complies with the basic unconditional obligation to pay the just satisfaction still owing.

ln view of these exceptional circumstances, the possibility of recourse to countermeasures or other options, as provided for by public international law[8] for failure to comply with the Court's judgments might be explored. Countermeasures can take various forms, however, when the aim is to secure the payment of just satisfaction awarded by the European Court, lifting of State immunity and seizure of assets may be in issue. Whether this or any other option might ultimately be taken, it is likely to raise complex and novel legal questions. Moreover, work on this topic more generally (not necessarily linked to the payment of just satisfaction) is also underway in other international fora and the European Union. Thus, the Group may conclude that a more comprehensive view over these elements would be useful at this juncture.

A request to the Committee of Legal Advisors on public international law (CAHDI) to provide an overview of the options under international law aimed at securing the payment by the Russian Federation of just satisfaction awarded by the European Court of Human Rights, may be envisaged. Such an overview should take account of other relevant work ongoing on this topic in other international fora.

Draft decisions

The Deputies,

Recalling that the Russian Federation is no longer a member State of the Council of Europe and has ceased complying with its obligations under Article 46 § 1 of the European Convention on Human Rights;

1.         invited, in those exceptional circumstances, the Committee of Legal Advisers on public international Law (CAHDI) to provide an overview of the options under international law aimed at securing the payment by the Russian Federation of just satisfaction awarded by the European Court of Human Rights;

2.         indicated that in doing so, the CAHDI should take into account relevant work of the European Union and other international actors on securing reparation for damages caused by the Russian Federation’s aggression against Ukraine;

3.         requested the CAHDI to provide such an overview by the end of July 2024.