Holding on to Legalism

DOI10.1177/0964663914530420
Published date01 September 2014
Date01 September 2014
Article
Holding on to Legalism:
The Politics of Russian
Litigation on Torture
and Discrimination
Before the European
Court of Human Rights
Freek van der Vet
University of Helsinki, Finland
Abstract
Russian nongovernmental organizations (NGOs) increasingly pursue domestic change by
litigating before the European Court of Human Rights (ECtHR). The Russian government
aims to decrease the amount of these applications and curtail the activities of these
NGOs. In Russia, where legalism is often performed but sparsely delivered, NGOs
engage into advocacy to supplement their international litigation. Advocating for
domestic policy changes has, however, become potentially dangerous for NGOs under
new curtailing legislation. Through interviews with Russian human rights practitioners,
this article analyzes how two NGOs – the Anti-Discrimination Centre Memorial and the
Committee against Torture – work in between their belief that law can effect into change
and the necessity to supplement their litigation with other strategies. In particular, it ana-
lyzes the interactions between the state and the NGOs by examining, first, how NGOs
mobilize claims before the Court as leverage in disputes, and second, how a restrictive
environment affects the NGOs’ litigation.
Keywords
Civil society, European Convention on Human Rights, legal mobilization, nongovern-
mental organizations, public interest litigation, Russian Federation
Corresponding author:
Freek van der Vet, Aleksanteri Institute, Finnish Center for Russian and East European Studies, University of
Helsinki, PO Box 42 (Unioninkatu 33), Helsinki FI-00014, Finland.
Email: freek.vandervet@helsinki.fi
Social & Legal Studies
2014, Vol. 23(3) 361–381
ªThe Author(s) 2014
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0964663914530420
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Introduction
In 1998, two events deeply transformed human rights defense in the Russian Federation.
First, by becoming a member state of the Council of Europe (CoE), Russia ratified the
(hereafter: the Convention). Second, Protocol 11 to the Convention came into force,
institutionalizing the right to individual petition, enabling all citizens of the 47 CoE
member states to lodge direct complaints with the European Court of Human Rights
(ECtHR or ‘the Court’) when they allege that their state violated their Convention rights.
Both developments expanded the already burgeoning caseload pending before the Court
as citizens from Russia and the recently integrated East European states started to liti-
gate.
1
In fact, Russians litigate with such fervor that, by January 2013, in all 28,600
of their applications are pending before the ECtHR (ECtHR, 2013: 8).
2
Russian lawyers working for nongovernmental organizations (NGOs) were quick on
the take to use this international mechanism to mobilize legal pressure in their domestic
campaigns. These NGOs engage into public interest litigation, a type of legal action aim-
ing ‘to precipitate social change through court-ordered decrees that reform legal rules,
enforce existing laws, and articulate public norms’ (Chayes, 1976). Only recently have
academics begun to pay attention to the strategies behind NGO litigation projects before
the ECtHR (Cichowski, 2011; Haddad, 2012; Hodson, 2011, 2013; McIntosh Sundstrom,
2012; Van der Vet, 2012, 2013).
3
In fact, Russian NGOs are amid the most active rep-
resentatives; a majority of decisions with NGO involvement cluster in cases where Rus-
sia acts as a defendant (37%between 2000 and 2009) (Mayer, 2010: 925).
4
This article expands this body of literature on NGO litigation before the ECtHR
by scrutinizing how litigation shapes relations between the state and NGOs. Public
interest lawyers are ambiguous actors as they mediate between the legal and polit-
ical: they practice law as a means to promote the public good, affect policy, or seek
remedies for a group of disadvantaged individuals (Sarat and Scheingold, 2005).
Activists and lawyers devoted to the idea of legalism believe that social change can
be effected through the enforcement of legal rights rather than through political bar-
gaining. Legalism is the strong conviction that law, society, and politics operate sep-
arately: law is a counterweight to politics. Legalistic thinking in human rights holds
that rights are a universal set of values on justice and human dignity embedded in
law (McEvoy, 2008: 21). Kennedy (2002: 116), in this regard, criticized that ‘human
rights promises more than it can deliver’ as it offers ‘a legal vocabulary for achiev-
ing justice outside the clash of political interest’, ignoring that law is a site of polit-
ical conflict itself (Koskenniemi, 2001).
This study therefore seeks to expand our knowledge on the practice of human rights in
Russia and how practitioners use legalism in cooperation or confrontation with the state.
Legalism is particularly strong in Russian legal education and research even though a
common argument is that law in Russia is without value as it can easily be manipulated
by politicians (see Muravyeva, 2013, for a critique). This duality between politics and
rights has become increasingly problematic after the State Duma passed law No. 121-
FZ – the infamous ‘foreign agent law’ – to constrain the ‘political activity’ of human
rights defenders who receive foreign funding. In such an environment, it is crucial for
362 Social & Legal Studies 23(3)

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