House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Minutes of Evidence

Written evidence submitted by Professor Bill Bowring, Birkbeck College, University of London

1. I have been asked to give my views and experience in particular as regards the effectiveness or otherwise of Western (and especially UK) attempts to promote human rights and the rule of law in Russia, drawing especially on my experience of Russia's dealings with the Council of Europe and ECHR; and as regards legal aspects of the current UK-Russia bilateral relationship. I have been asked to refer to my experience of bilateral extradition issues in particular.

MY QUALIFICATIONS AND EXPERIENCE

2. I am a Barrister of Gray's Inn called in 1974, and am also Professor of Law at Birkbeck College, University of London. I still practise in the field of human rights, as detailed below. I am fluent in Russian, and have since 1983 visited Russia and other countries of the former USSR regularly, and have studied the Russian language, history, and Soviet and Russian law and practice. I have published many articles and book chapters on these subjects. I also regularly act as an expert on Russian and other post-Soviet law and practice for the Council of Europe, European Union, Organisation on Security and Cooperation in Europe (OSCE), the US Department of Justice, and other national and international organisations.

WORK AS A CONTRACT ADVISER FOR DFID

3. From 1997 to the end of 2003 I was the contracted Adviser to the UK Government's Department for International Development (DfID) on "Human Rights in Russia", and for the latter three years on "Access to Justice and Rights Issues in Russia." In this capacity I initiated and monitored large projects in the Russian Federation in the field of judicial reform, reform of the penitentiary system, human rights monitoring, and alternative dispute resolution. My work ended when DfID decided no longer to fund projects in Russia—a result of the Iraq War.

4. The projects included the following.

— The Judicial Support Project (JSP I) which commenced on 1 September 1998, and finished in January 2002 after an extension. The project partner was the Supreme Court of the Russian Federation, with its Judicial Department and Academy of Justice, as well as the Bailiffs Department of the Ministry of Justice. This was the only donor programme in Russia to combine judicial training, reform of court administration, and enforcement of judgments, all aimed at improving the quality and response of justice for the poorest. This project was successful, and much appreciated by the Russian beneficiaries.

— The Independent Human Rights Monitoring Project (IMP) commenced in January 2000, and finished in April 2003. The project partners were Moscow Helsinki Group, and the Moscow Institute for Human Rights.

— I also helped to draft, and then monitored, two large projects focusing on the Russian penitentiary system. The Prisons Partnership Project (PPP), which twinned the six pre-trial prisons (SIZOs) in Moscow with six UK prisons, commenced on 1 April 2000 and ended in April 2003. The Russian partner was the Moscow GUIN (Chief Administration for Execution of Punishments), and the project was executed by the International Centre for Prison Studies based at King's College London. The Alternatives to Imprisonment Project (ATI) commenced on 1 September 2000, and ended in September 2003. The project partner was Penal Reform International (led by Baroness Stern). It sought to strengthen existing state mechanisms—the Criminal Execution Inspectorate—and to mobilise NGO resources for the implementation of community service as an alternative to imprisonment. The project has continued, with the help of the UK Foreign Office.

— The Restorative Justice Project (RJP) concerned use of restorative justice (mediation) techniques in the juvenile justice field, to reduce incarceration rates and recidivism. It commenced in 2002, and was completed in 2005. The partners were the Research Institute of the Prosecutor's Office and the Russian NGO Centre for Judicial and Legal Reform, which already had experience of piloting the use of RJ in various Russian regions. This was the first and so far the only project in Russia to work in partnership with the Prosecutor's Office.

5. In my view the UK's work in Russia, especially that carried out by DfID from 1997-2003, was highly effective—much more so than the EU's TACIS programme—and much appreciated by the Russian partners. The FCO has been able to continue part of this work, using the Global Opportunities Fund.

EXPERT WORK FOR THE COUNCIL OF EUROPE AND EU

6. In 2000-01 I was one of the experts nominated by the Council of Europe to work with senior Russian officials on the new Criminal Procedural Code which came into force on 1 July 2002. Following the enactment of the CPC, and its coming into force on 1 July 2002, I took part in an EU-funded international project monitoring the implementation and operation of the new Code. I therefore consider myself to be not only an expert on the CPC, but in some sense one of its "parents".

7. I have worked in an expert capacity for EU projects since 1994, in the fields of reform of social welfare, reform of local government, and recently the establishment of a system of administrative courts in Russia. In October 2004 I hosted a visit to London by the First Deputy Chairmen of the Supreme Court and of the Higher Arbitration Court of the Russian Federation, together with leading parliamentarians and members of the executive branch of government.

8. I presently work regularly with the Council of Europe as an expert on human rights and minority rights issues, especially in the field of minority rights.

MY WORK TAKING CASES AGAINST RUSSIA AT THE EUROPEAN COURT OF HUMAN RIGHTS

9. As an advocate, I have since 1994 represented Turkish, Latvian, Estonian, Georgian, Azerbaijani and Russian applicants taking cases to the European Court of Human Rights in Strasbourg. I have won some 25 cases (including Ozgur Gundem v Turkey, Aktas v Turkey, Ipek v Turkey, Ekinci v Turkey, Podkolzina v Latvia, Zhdanoka v Latvia) and represented the first six Chechen applicants whose cases against Russia, arising from the events of late 1999 and early 2000, were declared admissible by the Court in December 2002. I appeared on their behalf at the oral hearing before the European Court of Human Rights on 14 October 2004, and they won their cases on 24 February 2005. An application to appeal by the Russian Government was rejected by the Court.

10. In December 2002 I founded the European Human Rights Advocacy Centre (EHRAC) project, which is now assisting applicants in some 120 cases against Russia at the Strasbourg Court, including the cases referred to. About half of these cases concern events in Chechnya since late 1999. I obtained a grant of Euro 1 million from the European Commission's European Human Rights and Democracy Initiative for the first three years of the project. We have now obtained further funding from the Foreign and Commonwealth Office, Open Society Institute, MacArthur Foundation, Oak Foundation and Rausing Trust for continuation of the project's work. The EC has recognised EHRAC as one of the most successful projects of its kind.

11. EHRAC is a partnership with the Bar Human Rights Committee of England and Wales (of which I am a founder and Executive Committee Member), and the highly respected Russian NGO Memorial. I worked closely with Memorial and other Russian human rights NGOs since the early 1990s. The start of the second conflict in Chechnya in late 1999, with horrifying accounts of atrocities committed by the Russian Federal forces, as reported by Memorial, and the fact that in 1998 Russia had ratified the European Convention on Human Rights, gave us a strong motivation to create a structure to assist applicants in complaining to the Strasbourg Court.

12. In 2006 I was elected Chairman of the International Steering Group of EHRAC. The EHRAC project now employs nine staff in Russia—three lawyers and an administrator in Moscow, and lawyers in Urus Martan, Chechnya, as well as Ingushetia, and three other regions of Russia. There are four staff in the London office, and several interns. I work on cases from Chechnya on a daily basis, and regularly read many eye-witness accounts of horrifying events in Chechnya. I read all relevant reports, and follow the news from Chechnya on a daily basis.

13. I am in daily e-mail contact with Mr Dokka Itslaev, the EHRAC staff lawyer in Urus-Martan, Chechnya (and Deputy Chairman of the International Steering Group), in connection with cases we are bringing to the Strasbourg Court. In recent days I have been working with him on a case of the enforced disappearance in 2005 and probable killing by the Russian forces of a Chechen civilian in 2005, together with the usual and egregious total failure by the Russian authorities to investigate the case. Indeed, Russia is now systematically refusing to give the Strasbourg Court access to the prosecution files in the cases before the Court, itself a gross violation of Russia's obligations on accession to the ECHR.

EXPERT EVIDENCE IN EXTRADITION CASES IN LONDON AND CYPRUS—AND DEPORTATION FROM RUSSIA

14. In March 2005 I gave written and oral expert evidence to the Bow Street Magistrates Court in the extradition application Russian Federation v Chernysheva and Maruev. On 18 March 2005 Senior District Judge Timothy Workman held, referring to my evidence and that of other witnesses, that the extradition proceedings were barred by virtue of section 81 of the Extradition Act 2003.

15. On 25 October 2005 I gave written and oral expert evidence in the further extradition case of Russian Federation v Temerko. Aleksandr Temerko was second in command to Mikhail Khodorkovsky in YUKOS. On that day there was time only for my evidence in chief, and the hearing was adjourned to 15 December 2005 for cross-examination.

16. On 15 November 2005, before my return to the court for cross-examination, I arrived at Moscow Airport at 0500 am, on my way to observe the notorious trial in Nizhni Novgorod of Stanislav Dimitrievsky, on behalf of the Bar Human Rights Committee of England and Wales (BHRC), of which I am a founder and member of the Executive Committee. I had a letter of authorisation, and had already visited Nizhni Novgorod on behalf of the BHRC in June 2005 in order to investigate the case and report back to the BHRC and the Law Society. I was detained at Passport Control and detained for six hours. I was then deported from Russia, and my multi-entry visa was cancelled. My deportation (as it was described by the officers who detained me for six hours and then returned me to the UK) was taken up at the highest levels by the Foreign and Commonwealth Office, the European Commission, the Russian Human Rights Ombudsman, Mr Lukin, and many others. These included the Russian Ambassador to the EU, who was concerned that I had been excluded despite the fact that I represent ethnic Russians against Latvia and Estonia at the Strasbourg Court.

17. On 23 December 2005, Judge Workman made a similar finding to that in Chernysheva and Maruev v Russia, based to a large extent on my evidence, and refused extradition. In his judgment of 23 December 2005, Judge Workman considered the circumstances of my deportation from Russia, and held:

"In absence of any explanation I have concluded that it is more likely than not that the actions of the Russian authorities [by deporting me—WB] were directly associated with the fact that Professor Bowring had given evidence to this Court."

18. I took proceedings for judicial review in the Khimki City Court near Moscow—this court has jurisdiction over the Moscow Airport (I issued proceedings, from London, in this court as well as the Basmanny District Court of Moscow, which has territorial jurisdiction over the FSB). There were several hearings in my case. The Border Guards were twice ordered by the Judge to produce evidence to support the feeble reason they eventually gave—that I had failed to return the second half of my landing card on leaving Russia on a previous occasion. Had I failed to return the Landing Card as they alleged, the Border Guards would have drawn up a formal protocol signed by me and stamped. The Judge also noted that I had not been charged or convicted in respect of the relevant administrative infraction. She stopped the case following an informal assurance by the Border Guards that I would be permitted to return to Russia after one year.

19. On 8-11 February 2007 I was indeed permitted to return to Russia, to act with Lord Slynn of Hadley and others as a judge in the Russian round of the Philip C. Jessup international law moot court competition. I have recently been granted a transit visa to pass through Moscow on my way to and from Kazakhstan in May 2007.

20. In January and February 2006 I also gave written and oral evidence for the Larnaca District Court, Cyprus, in the YUKOS-related extradition case of Russian Federation v Kolesnikov. The court refused extradition in that case also.

THE RULE OF LAW IN RUSSIA

21. The process of legal reform, which Putin with some justice overtly compared with Aleksandr II's reforms of 1864, came to an end in 2003.[17] The architect of the procedural reforms, Dmitri Kozak, has been banished to the Caucasus. It has proved impossible to enact the laws necessary to introduce a system of administrative justice, without which effective remedies against official arbitrariness or inaction are impossible. The overtly political nature of the prosecutions of Khodorkovsky and Lebedev (now serving 8 years imprisonment), confirmed by the Council of Europe and by British courts in a series of extradition cases, has destroyed any hope for independence of the judiciary or a fair trial.

22. On taking office, the new General Prosecutor, Yurii Chaika, announced on 27 June 2006 that he was determined to re-open 16 extradition cases in the UK, publishing a list headed by Boris Berezovsky.[18] The OGP's determination to interview Berezovsky and others has effectively de-railed the investigation into the murder of Aleksandr Litvinenko.

23. Khodorkovsky and Lebedev are now being prosecuted once more under new offences[19] for which two associates, Pereverzin and Malakhovsky, have on 1 March 2007 been sentenced to 12 and 11 years hard labour respectively.[20] Over 40 prosecutions are now under way, including four US and British citizens.

CIVIL SOCIETY—NGOS

24. Russian NGOs, and especially those receiving foreign funding, or branches of foreign or international NGOs, are now subject to a very much more complex and demanding regime as a result of law no. 18-FZ of 10 January 2006. While most human rights NGOs were able to secure re-registration, despite severe bureaucratic delay, there have been some example of persecution, even under the old laws.

25. The Federal Registration Service has recently published on its web-site the list of NGOs to undergo a "proverka" by the FRS for up to two weeks. This process continues throughout 2007.[21] A useful "pamyatka" has now been published by "Lawyers for Civil Society", dated 15 March 2007.[22] Under the new regime, all "public associations" must by 1 April send a pro forma letter that they intend to continue their activities in the next year. By 15 April they must submit information on all foreign finance received. They are obliged every year to publish a report on the use of their property. All "non-commercial organizations" must by 15 April provide a report on their activities, information on the composition of their management bodies, a report on all income and property, including that received from foreign persons or bodies. All "filials" and representations of foreign NGOs and also local branches in Russia, which are registered as legal persons in Russia, must by 31 October provide information in the prescribed form on all planned activities for the next year; and must provide every quarter information on the amount of income and property and the purposes on which it has been spent. They must also by 15 April provide information on the actual use of income and property in the previous year. All Russian NGOs are now subject to nadzor (supervisory review) by the OGP at any time.

HUMAN RIGHTS—THE COUNCIL OF EUROPE

26. I prepared the following for the EU-Russia Centre[23].

27. Russia joined the Council of Europe in 1996, and ratified the ECHR in 1998. This was one of a large number of commitments which Russia entered into on accession. Russia has satisfied several more, including transfer of the penitentiary system from the Ministry of the Interior to the Ministry of Justice, in 1998, and enactment of new judicial procedural laws.

The death penalty

28. However, a very important obligation was:

"... to sign within one year and ratify within three years from the time of accession, Protocol No 6 to the European Convention on Human Rights on the abolition of the death penalty in time of peace, and to put into place a moratorium on executions with effect from the day of accession".

29. Accordingly, on 16 May 1996 President Yeltsin issued a Decree ordering the government to present to the Duma within one month a law on ratification of Protocol 6, and on 2 August he announced an unofficial moratorium on executions. However, the Duma refused to ratify Protocol 6, and also refused to enact a law on moratorium. In August 1999 the Russian Government once more submitted Protocol 6 to the Duma for ratification. This met a similar fate.

30. The matter was resolved indirectly when, in February 1999, the Federal Constitutional Court held[24] that in order for the death penalty to be applied in Russia, the accused must in every part of Russia have the right to a trial by jury. At that time trial by jury existed in only nine of 89 regions of Russia.

31. Russia has not executed an accused since 1999. But the Criminal Procedural Code of 2001 extended jury trial to the whole of Russia except Chechnya, where it should be introduced not later than January 1, 2007. This would then, of course, trigger the restoration of the death penalty. However, on 15 November the State Duma adopted at first reading a draft law which changes the date for introduction of jury trials in Chechnya from 1 January 2007 to 1 January 2010.[25] The (good) reason they gave was that lists of potential jurors must be compiled by municipalities, which do not yet exist in Chechnya. On 27 December 2006, the draft law was signed by the President; and it was published in the Russian Gazette and came into force on 31 December 2006, in the nick of time.[26] So Russia has another three years before the death penalty will automatically become available once more.

32. On 10 December 2006 the CoE Commissioner for Human Rights, Thomas Hammarberg, expressed his regret that Russia is the only European state where the death penalty has yet to be abolished, despite Russia's promise to ban it ten years ago. For this reason, and, for example, because of deep concern regarding new amending legislation on NGOs, he announced that the CoE is not planning to wrap up its monitoring mission in Russia.[27] Russia has been lobbying hard for an end to monitoring.

Russia and the Court

33. Moreoever, Russia has recently been losing some high-profile cases in the Strasbourg Court. In May 2004, in Gusinskiy v Russia[28] the Court held that Russia had acted in bad faith in using the criminal justice system to force a commercial deal, by arresting the TV magnate. In July 2004, in Ilacu and Others v Moldova and Russia[29] the majority of the Grand Chamber of the Court found that Russia rendered support to Transdniestria, which broke away from Moldova, amounting to "effective control". The first six Chechen applicants against Russia won their applications to Strasbourg in February 2005[30]. In April 2005 in Shamayev and 12 others v Russia and Georgia,[31] the Court condemned Russia for deliberately refusing to cooperate with the Court despite diplomatic assurances; and in October 2002 the Court had given "interim measures" indicating to Georgia that Chechens who had fled to Georgia should not extradited to Russia pending the Court's consideration.

34. Russia poses an ever increasing problem for the Court. In 2006, 10,569 (out of a total of 50,500) complaints were made against Russia, of which 380 were referred to the Russian government, and 151 were found to be admissible. There were 102 judgments against Russia (out of 1,498 against all Council of Europe states). A total of 21,773 cases against Russia were struck off, without reasons being given, and 353 were declared inadmissible after a hearing. By the end of 2006, of 89,887 cases pending before the Court, about 20% concerned Russia, 12% Romania and 10% Turkey.[32]

The YUKOS cases

35. Another continuing matter of grave concern to the CoE is the continuing and remorseless prosecution by Russia of persons connected with Mikhail Khodorkovsky and YUKOS. On 4 October 2006 Mrs Sabine Leutheusser-Schnarrenberger, former German Minister of Justice, and Rapporteur for the PACE Committee on Legal Affairs and Human Rights, delivered an Opinion[33] including the following:

"The Assembly also recalls its resolution 1418 (2005) and recommendation 1692 (2005) on the circumstances of the arrest and prosecution of leading YUKOS executives and regrets that subsequent developments have shown that the Assembly's well-founded and constructive criticism was not taken into account by the competent Russian authorities".

Refusal to ratify Protocol 14 to the ECHR

36. These expressions of regret by CoE institutions, and the defeats in the cases noted above, received a stunning riposte from the Russian authorities when, on Wednesday 20 December 2006, the Russian State Duma (lower house of parliament) voted to refuse ratification of Protocol 14 to the ECHR. This Protocol, which must be ratified by every one of the CoE's 46 member states in order to come into force, is designed to streamline the procedure of the Strasbourg Court, so as to reduce the backlog of cases (now about 80,000 cases), and shorten the time needed to deliver a decision (now five to six years for a "fast-track" case, up to 12 years for other cases). The Vice-Speaker of the Duma, the nationalist Sergey Baburin, complained "... our voluminous membership fees (Euro 12m, the same as the UK) are being used for attacks on our country" by the CoE.[34] The Duma's decision was described in the Kommersant newspaper as "The Duma `Gives It' to the European Court".[35] Alexei Mitrofanov, deputy chairman of the Duma's legislation committee, said that the Duma decision was "a direct order from the Kremlin ... it is also a mystery what we can achieve by all this. We should simply have explained our grievances to the West".[36]

37. The Secretary General of the CoE, Terry Davis, immediately issued a Declaration expressing his disappointment that "essential and long-overdue changes... must be put on hold."[37] This is a rare response, and in diplomatic terms very strongly worded.

38. Any impression that the Duma had somehow thwarted the President's genuine intent was dispelled when, on 11 January 2007 he met members of the "Civil Society Institutions and Human Rights Council". Former Constitutional Court judge and leading human rights supporter Tamara Morshchakova asked him specifically about the refusal to ratify Protocol 14. Putin replied:

39. This was the first time Putin had openly criticised a decision of the ECtHR. He was answered two days later by René van der Linden, the Chairman of PACE, who insisted that if the Court renders a decision in favour of a citizen whose claim was not satisfied in the courts of his country, this must be seen as a decision directed to the protection of the citizen, and not against the state.[39]

40. Further light was thrown on Russia's extreme sensitivity to losing these cases on 31 January 2007 when the recently retired President of the ECtHR, Luzius Wildhaber, not only claimed that he might have been poisoned during a visit to Russian in October 2006, but, more significantly, reported that he had been threatened by Russia. Specifically, he told the Neue Zürcher Zeitung that Russia's Ambassador to the CoE had come to his office in October 2002 to say that unless the Chechens (in Shamayev v Russia and Georgia, above) were handed over within 24 hours, Russia would blame the Court for the Moscow Theatre siege when Chechen extremists took 850 people hostage. Wildhaber said "It was a vile form of blackmail".[40]

Further criticism of Russia

41. The Report of the Democracy and Human Rights Committee of PACE of 9 February 2007 "Member states' duty to co-operate with the European Court of Human Rights"[41] (I gave evidence for this Report) contains particularly strong criticism of Russia. On 13 March 2007 the Council's Committee for the Prevention of Torture made a further Public statement concerning the Chechen Republic of the Russian Federation.[42]

CONCLUSION

42. Russia's increasingly tense relationship with Strasbourg raises the question whether Russia really wants to remain a member. The answer to this must be affirmative. The ECHR is now firmly part of Russia's law. The decisions of the ECtHR are treated as binding precedents by the Russian Constitutional Court and other Russian courts. Many substantive and procedural Codes have been revised in the light of undertakings to the CoE. It should be noted that President Putin's rather forthright, even aggressive, speech in Munich on 12 February 2007 was directed against the USA, and also the OSCE, but not at all against the CoE.[43] Nor is there any serious move in Strasbourg to suspend or exclude Russia, despite some strong comments in February 2007 from the Parliamentary Assembly on cooperation by Russia and others with the ECtHR.

43. Of course, the recent events throw into question Russia's relations with the EU, all of whose member states are also members of the Council of Europe in good standing. The EU has a special relationship with Russia, which is not the subject matter of this short comment. This relationship is now subject to re-negotiation, as part of the EU's new Neighbourhood Policy. Turbulence in Russia's relations with the EU will not assist in this process.

Professor Bill Bowring

8 May 2007