Born into a Jewish family in Ukraine, Vasily Grossman’s monumental account of totalitarian Stalinist Russia, Life and Fate, which included a remarkable portrayal of the battle of Stalingrad during World War II, was banned by the KGB before it could be published in the Soviet Union. In response, Grossman wrote to the then Soviet leader, Nikita Kruschev, ‘I have written in my book what I believed, and continue to believe, to be the truth. I have written only what I have thought through, felt through and suffered through’. Sixty years after the confiscation of Grossman’s manuscript, Aleksandra Skochilenko, an artist and musician, replaced five price tags in a supermarket in St Petersburg with her own tags which read ‘The Russian army bombed an art school in Mariupol with four hundred people sheltering there’ and ‘Stop the war! 4,300 Russian soldiers died in the first three days. Why do they say nothing about it on television?’. She was prosecuted for acting out of ‘political hate’ and in 2023 was sentenced to seven years’ imprisonment. The recent judgment in the case of Novaya Gazeta and Others v Russia shines a stark light on the treatment of those who have the courage to tell the truth about the war being waged by the State, in present day Russia.
Others targeted by the Russian authorities, who have also sought redress in Strasbourg, include the politician Vladimir Kara-Murza, who was prosecuted for spreading ‘fake news’ after he spoke to politicians in Arizona about Russian troops bombing residential areas, hospitals and schools, using cluster munitions, and unleashing a war of aggression against Ukraine. He was sent down for 25 years. Activist Olga Smirnova shared online posts comparing war crimes being committed by the Russian army to Nazi atrocities during World War II. She was given a six-year sentence. Olga Svalova’s crime was holding a sign showing a white dove, together with the words ‘I stand for peace’. Susana Bezaziyeva is a Crimean Tatar and secondary school teacher who was prosecuted and convicted for telling her pupils that Ukrainians were being attacked, raped and killed by Russian soldiers. These are just the stories of a small number of the applicants in a case which brought together more than 160 applications. Many portrayed the slogan ‘NO TO WAR’ (‘НЕТ ВОЙНЕ’) in one form or another, and were prosecuted for ‘discrediting’ the Russian military, or designated as ‘foreign agents’.
The annex to the judgment, which lists all the applicants’ misdemeanours, is a remarkable and indeed moving testament to the audacity and fortitude of the Russian people in mounting their protests, even in the harshest of circumstances. From Moscow to St Petersburg, Tomsk to Samara and Yekaterinburg, and many other cities across Russia, they took part in rallies, posted on social media, held up anti-war signs or distributed leaflets, displayed badges and stickers, hung posters from their balconies, shouted, wore or painted slogans, refused to be drafted, tore down ‘Z’ signs, chained themselves up, and sported Ukrainian colours.
In addition to the individual protestors, the independent media organisations Novaya Gazeta and Dozhd TV (Rain TV) sought to challenge measures taken against them because of their war reporting (including the blocking of their websites and revocation of their publishing licence) and subsequent proceedings forcing their closure. For Novaya Gazeta, this had started two days after the Russian invasion of Ukraine (on 24 February 2022), when the state media regulator and general prosecutor issued a ‘take down request’ because of its reporting of fully-fledged military hostilities, as opposed to the preferred ‘special military operation’.
The Court’s Findings
The Court’s increasing tendency to group cases can aid its contextual assessment and here it was able to identify a ‘systemic and widespread pattern of unjustified restrictions’, as well as a ‘coordinated effort by the Russian authorities to supress dissent’. Accordingly, there were breaches of Article 10 of the European Convention on Human Rights, as the measures taken were disproportionate and could not be said to have a legitimate aim. Individual applicants also established violations of Articles 5 and 3, arising from their unjustified pre-trial detention, and their being held in metal cages or glass cabins during hearings.
Seemingly, the only ‘tricky’ case was that of Ukrainian journalist and political commentator, Dmytro Gordon, who had been designated a foreign agent and sentenced in absentia to 14 years’ imprisonment for using phrases such as ‘take them down hard, spare no one’ and ‘no pity, kill them all without mercy’ in an interview about the Russian invasion on a Ukrainian news channel. The Court accepted that such statements were indisputably violent, but Article 10 was still found to be breached because the domestic courts failed to properly analyse such statements in their specific context (they were aimed at military personnel and the political leadership rather than Russian civilians as a whole).
In the course of these proceedings, the Court once again applied its interim measures in support of civil society by ordering the Russian authorities not to block or shut down Novaya Gazeta‘s activities. However, this was ignored by the domestic courts, and as a result, there was also a breach of Article 34 of the Convention. Nevertheless, the decision further solidifies the Court’s practice of applying Rule 39 beyond cases concerned with Articles 2 and/or 3 of the Convention (in the context of immigration or extradition measures). Such cases have concerned, for example, the ownership of a media company in Georgia, the protection of a journalist’s sources in Ukraine and the right to exist of a human rights NGO in Russia.
But it is the wider ramifications of this case, to which I would now like to turn.
A Historical Record?
This decision comes three years after the unprecedented expulsion of Russia from the Council of Europe. Although Russia is legally obliged to continue to co-operate with the Convention bodies, its routine practice is no longer to engage at all with the Court or the Committee of Ministers. So do judgments like this matter? My own answer to that question is an emphatic yes. It has never been more important for an independent, international court to dissect and record egregious human rights breaches being perpetrated by the Russian authorities.
But it is certainly also time to look back over the last quarter of a century when Russia was a member state of the Council of Europe. What have we learned? For the authors of an excellent new book on this subject, this was ‘a story of failed hopes, bad faith and false promises’.
In response, for example, to the several hundred judgments calling out the Russian security forces for gross violations in Chechnya and the north Caucasus, including enforced disappearances and extra-judicial executions, what more could have been done, or could we have done things differently? Russia was required to, and did, pay financial damages in those cases, but did nothing else (and certainly continually failed to carry out investigations into unresolved disappearances and killings). Could the Committee of Ministers have taken more concrete steps as regards their Convention duty to supervise the implementation of such judgments? Could there have been inter-state proceedings instigated, with Council of Europe states stepping up to fulfil a broader ‘policing’ role in line with another of their Convention duties – as reflected in the preamble to the Convention – to ensure the collective enforcement of its rights?
Or should we simply accept that the Committee of Ministers’ peer review process is, by definition, just not up to the job – that with the foxes guarding the foxes, nothing is going to change?
There was much hope (certainly within civil society and academic circles) prior to the Council of Europe Heads of Summit meeting in Reykjavik in 2023, as its agenda had conveyed a level of urgency and openness to change not seen in the previous 25 years – one that sought to establish a regional organisation ‘fit for purpose to meet current and future challenges as well as the expectations of future generations’. But regrettably, meaningful system change did not follow: once again, member states’ defensive conservatism won the day.
Nevertheless, many of the proposals that were mooted around that time could still be introduced. For example, the endemic problem of the failure of states (some in particular) to fully implement Strasbourg judgments was a priority for the High Level Reflection Group, led by Mary Robinson, whose 2022 report made a number of specific recommendations, including formalising the practice of calling ministers or other senior government officials of states whose judgments are not implemented on a systematic basis to attend meetings of the Committee of Ministers. Another idea, which didn’t get traction at the time, was to create a special representative on the implementation of the Court’s judgments. And what about biting the bullet and imposing graduated sanctions for serious, persistent non-compliance?
Perhaps then the most notable aspect of the Novaya Gazeta judgment was the separate opinion of Judge Pavli who took a step back and focused a wide lens on Russia’s record in Strasbourg. He questioned whether it was in fact necessary for the Court to develop entirely new tools in relation to democratically-challenged national systems:
‘..with the benefit of some hindsight and a large body of case-law behind us, can it be said that the Court sounded the alarm loudly enough, and early enough? And more importantly for the future, is it now prepared to do so in relation to other European political systems whose democratic protections might be eroding in ascertainable ways?’
Judge Pavli is entirely right to be asking those questions. Given the degradation of any semblance of democratic or human rights in Türkiye, for example, is the Council of Europe doing enough, and are member states willing to take measures to ensure that Türkiye complies with its unimplemented Strasbourg judgments, notwithstanding its increasing geopolitical regional importance?
Conclusion
As the debate rages about European states taking responsibility for the continent’s security, it must not be forgotten that true human security also encompasses respect for the rule of law, democracy and human rights. Council of Europe states must reconsider carefully how and when they should be purposefully sounding the alarm. This should include bolstering the European Court of Human Rights as a bastion of judicial independence for the continent, and genuinely championing a rules-based international order.