The Slivenko case at the European Court of Human Rights will show us how much Latvia will pay for the international human rights documents which it ratified without reservations in the euphoria of the 1990s.
What can Latvia learn from the Slivenko case?
The ruling of the European Court of Human Rights (ECHR) in the Sļivenko case proves once again that the approach which Latvia took in ratifying international human rights documents in the 1990s is going to cause problems in the future. The process began on 4 May 1990, when Latvia acceded to 51 documents in the area of human rights. Individual documents were then ratified in a great hurry, and they became legally binding to Latvia. In 1992, for example, five important international human rights conventions were ratified simultaneously. The governing view at that time was that accession to international human rights documents would bring us closer to western democracies in an ideological way, taking us further away from the threats of Communism and occupation in the future.
The hurried atmosphere kept the system from fully evaluating the consequences that may occur if there are no opt-outs when it comes to the articles of the convention, or if institutions which coordinate international obligations in the area of human rights are not set up. This applies to the review of individual complaints to those institutions which supervise the conventions (the Human Rights Committee, the ECHR), as well as to the filing of government reports about the introduction of the norms of the conventions. The filing of reports on some binding conventions has been delayed for more than seven years, and other initial reports have been of a poor level of quality. The accession process, alas, did not involve any consideration of the experience of other countries in opting out of certain aspects of the conventions.
In accordance with its decision on 23 January 2002, the ECHR is going to consider whether Latvia violated the rights of Tatjana and Karina Slivenko to privacy, whether it was done in a discriminatory fashion, and whether the fact that they were held in detention was arbitrary or unlawful. The Sļivenko complaint is supported by the Russian Federation, which is participating in the process as a third party. In accepting the case for review, the ECHR has reviewed important questions about its jurisdiction in this area.
The Latvian government presented two major arguments in relation to jurisdiction. First of all, the government said that in joining the European Convention of Human Rights and Basic Freedoms, it assumed that the treaty between Latvia and Russia that was concluded in 1994 was in line with the convention’s provisions as a necessary element in ensuring Latvia’s sovereignty and national security. Secondly, it argued that the treaty must be seen as a “quasi reservation” when it comes to Latvia’s obligations in relation to the convention. Sadly, the ruling does not discus this concept of a “quasi reservation”. No such opt-out is discussed in other human rights documents and conventions which speak to norms in the area of international treaties (see the definitions in the 1969 Vienna Convention on the Law of Treaties, for instance). It is hard, therefore, to conclude that this idea of a “quasi reservation” is legally correct.
In its ruling, the ECHR stated clearly that it does not agree with this argument (Paragraph 60), and it also explained what Latvia should have done during the adoption of the convention so as to allow the government to make the argument before the ECHR. The court reminded us that it is the only institution which can rule on jurisdiction in relation to the convention, its protocols, and all opt-outs and declarations that are made by signatories to the convention (Paragraph 57). The argument that the Latvian-Russian treaty should be seen as a “quasi opt-out”, therefore, is not legally correct. Secondly, the ECHR stated that Latvia’s discussion of the application of the 1994 Latvian-Russian treaty to military personnel and their families should have taken place during the ratification process (Paragraph 61). Opt-outs at the time of ratification are possible under the terms of the convention, as well as under the terms of international conventions on treaty law (in Article 19 of the aforementioned Vienna Convention, for example). Latvia declared no such opt-out when it ratified the convention in 1997, and so the ECHR has no limitations in reviewing issues which relate to the possibility of human rights violations in the context of the convention. Third, the ECHR pointed out that because the parties to the case have all interpreted the application of the treaty differently, Latvia has had a certain amount of freedom in applying the treaty. Article 9 of the treaty says that Latvia must take into account the principles of international law and the rights of individuals to whom the treaty applies. This means that the argument that the treaty is not in and of itself in contradiction to the convention must be rejected. The ECHR has thus explained that it is not considering the extent to which the treaty and the convention are in line with each other. Rather, it is looking at the possibility that human rights violations occurred in the application of the convention.
The ECHR’s decision to reject the complaint which was filed by former military official Nikolajs Slivenko is important. The ECHR ruled that its jurisdiction does not include the consideration of violations which took place before Latvia acceded to the convention (i.e., before 27 June 1997). The ECHR, in other words, is not reviewing the lawfulness of ways in which Latvia has sought to liquidate the consequences of the Soviet occupation, i.e., the extent to which the norms of the 1994 Latvian-Russian treaty are in line with the norms of the convention. Neither is there any reason to claim that this precedent will allow retired Russian military personnel to return to Latvia for life or to complain to the ECHR about this issue, as has sometimes been claimed in the mass media.
The final word has not yet been spoken in the Slivenko case, so we do not know how much the Latvian government will have to pay for the euphoria which governed the ratification of human rights documents in the 1990s.