Korobov and others v. Estonia, 28 March 2013, ECtHR read judgment
At one level, this is a story of Estonian police over-reaction to major disturbances on the streets of Tallinn, which will be found reproduced in various incidents throughout ECHR countries at various times of civil strife. But a good deal of history and politics lies behind it, and Russia’s intervention in Strasbourg, in support of the applicants’ claims under Article 3 (excessive force) and 5(1) (unlawful detention) against Estonia is of some interest.
The Bronze Soldier, originally named “Monument to the Liberators of Tallinn” was unveiled there on 22 September 1947, on the third anniversary of that “liberation” in 1944. Not all – including ethnic Estonians – saw it as a liberation. The Germans had retreated before the Red Army arrived, and on 18 September 1944 the Provisional Estonian government had declared independence – short-lived as Estonia was rapidly incorporated into the Eastern bloc courtesy of the Red Army. So “takeover” might be a term closer to Estonians’ hearts.
47 years later, Estonia re-achieved its independence from Russia. But what to do about the Bronze Soldier and the Red Army graves beneath it – a continued reminder of much-resented Russian imperialism? Things came to a head in 2007. The Estonian Parliament had enacted the Protection of War Graves Act; part of the “protective measures” proposed enabled the relocation of war graves currently in “unsuitable” sites. In April 2007, a large tent was put over the monument in preparation for the exhumation, and a police cordon formed. Over the nights of 26 to 28 April, thousands of people gathered, mainly Russian speakers, who protested at the exhumation. Things got out of hand, with stones being thrown, vandalism, and over 1,160 arrests made.
Our six applicants were arrested, they said violently, and were detained and some brutalised in detention. Ensuing attempts by the applicant to institute prosecution against the police failed. Hence their applications to Strasbourg.
In the event, after consideration of the evidence, breach of Article 3 through the use of excessive force was established by one applicant. Four applicants established breaches of the procedural obligation implicit in Article 3, because Estonia had failed to carry out an effective and independent investigation of their allegations of ill-treatment. They received €11,000 for this, and a further €3,000 for the one substantive Article 3 breach. The unlawful detention claims under Article 5(1) were dismissed for failing to exhaust domestic remedies: see this post on the rule.
The interest in the case is in what Russia was doing in Strasbourg. Two of the applicants were Russian nationals, and under Article 36(1) of the ECHR a contracting state has the right to submit written comments and take part in a hearing if one or more nationals are applicants. So it had an unqualified right to be there.
There are, I suppose, two reasons why Russia might have wanted to be there. The first was to use Strasbourg as a vehicle for tilting at Estonia. One can see the possibility of this from its submissions as recorded by the Court
The Russian Government submitted that before the events of April 2007 they had repeatedly called on the Estonian authorities not to relocate the Bronze Soldier monument, but to no avail. They referred in this context to Article 34 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, and argued that there had been no “overriding public necessity” to relocate the monument.
In connection with the applicants’ complaints under Article 3 of the Convention, the Russian Government considered that disproportionate force had been used by the Estonian law-enforcement agencies. They also referred to the findings of the CPT [a European Committee for the Prevention of Torture], which in their opinion revealed clear signs of violations of the guarantees enshrined in Articles 3 and 5 of the Convention, and considered that the applicants’ allegations did not seem unreal or unsubstantiated in this context.
And on the merits
The Russian Government…. considered that there had been no grounds for arresting the applicants, as they had not participated in the disorder, protests or gatherings, and had simply happened to be in the vicinity of the relevant areas. No state of emergency had been declared or other restrictions introduced, and being out in the streets had not been prohibited during the April 2007 events.
The second possibility is that Russia was there out of a dispassionate interest in the consistent enforcement of pan-European human rights, including the right to freedom of assembly, lack of excess force by the police or security services, and a wish to emphasise the importance of transparent investigations into violent incidents. If so, then I dare say we should all rejoice in their presence in Strasbourg.
Sign up to free human rights updates by email, Facebook, Twitter or RSS
- How do you “exhaust local remedies” for the purposes of applying to Strasbourg?
- Can a judgment in default of defence be in breach of Article 6?
- A bluffer’s guide to human rights courts