The lopsided statistic startled Russia. At the end of 2008, news reports said that 28% of all pending claims to the European Court of Human Rights had been brought by Russian citizens against the Russian Federation. While several elements contributed to the statistic , the chief factor was clear: Russians are unhappy with their own court system and don’t believe they can get justice from it. Russian President Dmitri Medvedev, a lawyer himself, announced plans to reform the Russian justice system to stop the flow of complaints to the ECHR in Strasbourg, France. Said Medvedev: “I generally agree that the Strasbourg court, with all my respect for it, cannot and should not replace Russian justice.”
But the Strasbourg court does indeed see a problem with Moscow’s brand of justice and is now getting ready to take on one of the biggest legal controversies in Russia’s history. Many of the cases from Russia that come before the ECHR are small or are duplicate complaints submitted by different plaintiffs. But in January, the ECHR announced a doozy: it said oil giant Yukos, which was effectively shut down by Moscow in 2006, three years after its boss, Mikhail Khodorkovsky, was thrown into prison on charges of fraud and tax evasion, could proceed with a lawsuit seeking $34 billion in damages against the Russian government. It is the largest claim the ECHR has agreed to consider and the first ever involving a corporation. The financial and political fallout from an ECHR judgment could be immense.
The development gives some hope to the tens of thousands of Yukos shareholders who saw their investments evaporate after Moscow expropriated and then nationalized the company, effectively handing the government of Vladimir Putin, then President and now Prime Minister, virtual monopolistic control of Russia’s vital energy industry. It gives the once politically ambitious Khodorkovsky and his partner Platon Lebedev at least some good news in the face of the Russian government’s continuing campaign against them. Later this month, the two men, who are already serving multiyear prison terms, will face fresh charges of embezzlement and grand theft.
Since the filing of the complaint by Yukos managers in 2004, the Russian government has tried everything to stop it from becoming admissible. One of its arguments against the litigation was that Yukos failed to exhaust its appeals in Russian courts; another was that Yukos as a company no longer exists. Both were overruled by the ECHR.
One immediate effect of the Yukos admission is that Russians will be encouraged to take even more of their beefs to the ECHR — even though it is no guarantee of getting what they see as their just deserts. “Russians have created this myth about the European Court of Human Rights,” says Lev Ponomaryov, a leading human-rights activist, “that it is this ideal system that will resolve everyone’s case, and compared to our system, it is perfect, which I think is partially true — but many do misuse it and file cases without exhausting legal means at home.” According to Ponomaryov, there are some basic reasons Russians do not like their own courts: “We have this inherited Soviet mentality, where judges can’t conceive that in a case where the government is involved, the government could lose.” Corruption is another major reason for disillusionment. “Khodorkovsky never had hope, because he was fighting against the government,” says Ponomaryov. “We protested, we had meetings, but whatever we did, it didn’t matter, because Putin had his own interests.”
If the Yukos hearing takes place, and if the claimants win, then it’s not just the shareholders who could benefit. “This could have a roll-on effect on the other former Yukos executives, such as Svetlana Bakhmina, Vasily Aleksanyan, Lebedev and, of course, Khodorkovsky, all of whom had placed complaints with the European Court of Human Rights,” says Claire Davidson, a spokeswoman for Yukos. But there could be a much higher cost in Russia, where the local media are already speculating on how a $34 billion payout could cripple the economy. Others suggest that, with a judgment against it, Russia could sever its ties with the European Council and the ECHR altogether. “This is speculation, but if it happened, it would be more than a loss,” says Karina Moskalenko, a human-rights lawyer who has worked with Khodorkovsky. “It would be a disaster for all the individuals who have been cheated by our judicial system. For them the European Court of Human Rights is their last possible hope.”
Moskalenko, however, is not ready to give up on Russian justice, in spite of her uphill battles to make sure local courts actually deliver it. “The current system is such that the prosecution has a big advantage over the defense,” she says. Among Moskalenko’s clients are the children of Anna Politkovskaya, a journalist who reported on human-rights abuses and was slain in October 2006. Moskalenko does not see the acquittal last week of Politkovskaya’s alleged contract killers as a setback: “I didn’t see the verdict as a loss. It was a relief to see that the defendants could get acquitted in Russia.” The judge ordered the restarting of what many called a halfhearted investigation by police, a move Moskalenko welcomes. “We want the real killers,” she says, “not the appointed killers.”
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