by Markiyan Bem 

After the exclusion of the Russian Federation from the Council of Europe and the termination of its participation in the European Convention on Human Rights, a practical problem arose: how to enforce the decisions of the European Court of Human Rights (hereinafter – EctHR) in cases that had already reached the stage of awarding satisfaction and were based on applications filed against the Russian Federation before September 16, 2022. The existing enforcement mechanisms under Article 46 of the Convention - oversight by the Committee of Ministers, non-compliance procedures, and political pressure - have proven insufficient in the case of a state offender that systematically and openly disregards its obligations.

At the same time, more than $200 billion in Russian state assets remain iimobilized in the jurisdictions of Council of Europe Member States.

Several expert studies and parliamentary resolutions have already proposed using these assets to finance an international compensation mechanism. In parallel, the possibility of using these funds to ensure the payment of just satisfaction awarded under ECtHR judgments against Russia is also being considered.

In this regard, experts suggest that decisions to allocate a portion of the frozen funds toward the payment of just satisfaction awards be made by courts in national jurisdictions. To this end, they have analyzed the relevant legislative frameworks in Belgium, France, and the United Kingdom - countries where the largest amounts of Russian sovereign assets are frozen.

In parallel, discussions are underway to establish a mechanism at the interstate level for using Russian sovereign assets to pay just satisfaction awarded under ECtHR judgments.

Before analyzing this issue, it is important to consider the inherent limitations of the ECtHR. First and foremost, the ECtHR is not, by its nature, a compensatory mechanism. Its primary function is to identify serious and systemic deficiencies within national legal systems that result in violations of the Convention, with the aim of rectifying these issues and harmonizing human rights protection standards across different jurisdictions to a common “Convention-based” level. While the award of just satisfaction is an essential and integral part of the Court’s activity - intended to address the individual consequences of a violation - it is clearly not its principal objective.

For these reasons, it is essential to conduct a detailed analysis - potentially with the involvement of the Court itself - of the feasibility of using the ECtHR as a compensatory mechanism. Secondly, there are significant jurisdictional limitations: the Court may only consider applications concerning violations committed by Russia prior to 16 September 2022. This temporal scope encompasses just six and a half months of the full-scale invasion.

On the other hand, the jurisdiction of the ECtHR also extends to events related to the Ukrainian-Russian conflict during the period from 2014 to 2022, prior to the full-scale invasion. At the same time, while there appears to be a growing consensus on the use of frozen sovereign assets to compensate for damage caused by the full-scale invasion, no such consensus has yet emerged regarding their use to address harm resulting from the earlier phase of the conflict between 2014 and 2022.

Returning to the question of using sovereign assets to pay just satisfaction under ECtHR judgments against Russia, it should be emphasized that, in our view, leaving this matter solely to the discretion of national legislation is highly unpredictable. Such a decision - while fully respecting judicial independence - would likely be heavily influenced by the political will of the respective state. Moreover, if successful, it could set a risky and uncontrolled precedent: other states might adopt similar practices in unrelated cases, seizing the assets of other violators while bypassing the procedures established under the Convention. To avoid legal fragmentation, minimize encroachment on sovereign rights, and uphold the authority of the ECtHR, a coordinated decision within the framework of the Council of Europe is essential.

In particular, to implement such a mechanism - namely, the confiscation of Russian assets with a goal of enforcing ECtHR judgments - it would be advisable to consider amending Article 46 of the European Convention on Human Rights, which governs the execution of Court decisions. Such an amendment should provide that the mechanism may be activated only in cases of “serious and continuing” non-compliance; where the judgments in question establish “widespread and systematic violations of the Convention and its Protocols”; and where the relevant decision is adopted by a qualified majority of the Member States within the framework of the Committee of Ministers of the Council of Europe. The amendment should also introduce procedural safeguards and ensure coordination with other justice and victim compensation mechanisms - such as, in the case of Ukraine, an international compensation mechanism.

It may be proposed to supplement Article 46 of the Convention with the following paragraphs 6 and 7:

"6. In the event of a serious and persistent failure by a High Contracting Party to comply with a final judgment of the Court establishing widespread and systematic violations of the provisions of the Convention and its Protocols, the Committee of Ministers, acting by a two-thirds majority of the total number of representatives entitled to sit on the Committee, may authorize:

a) the freezing and confiscation of state assets of that Party located within the territories of other High Contracting Parties, to the extent necessary to ensure compliance with the final judgment of the Court;

b) the transfer of the confiscated amounts to the Trust Fund for the Execution of Judgments of the Court, established in accordance with Article 2 of this Protocol;

c) the use of the Fund exclusively for the payment of just satisfaction awarded by the Court, and for covering the costs necessary to ensure the full execution of the judgments concerned.

7. In taking decisions pursuant to paragraph 6, the Committee of Ministers shall ensure compliance with the principles of proportionality, legality, and the availability of judicial review, and shall coordinate its actions with other international reparation mechanisms."

Another option would be for the Committee of Ministers of the Council of Europe to adopt a relevant Recommendation. Following such a decision, Member States could enact or amend domestic legislation to allow for the confiscation of Russian sovereign assets. This model would combine national legal measures with an international framework, helping to prevent fragmented or unilateral actions while ensuring procedural safeguards. In particular, it could limit the Russian Federation’s right of challenge to procedural compliance only, without permitting a substantive contestation of the confiscation itself.

The second stage would involve the establishment of a special Trust Fund within the Council of Europe. This fund would serve to accumulate confiscated Russian assets and disburse just satisfaction awarded by the ECtHR to individual applicants. Such a model effectively reconciles the protection of individual rights with broader collective needs, including post-war reconstruction.

To ensure transparency and legitimacy, the Recommendation should provide for annual public reporting, independent auditing, and parliamentary oversight. It should also require states to coordinate disbursements with the Register of Damage for Ukraine and the future Compensation Commission, in order to avoid duplication of payments and to preserve the priority of ECtHR judgments that have already entered into force.

Importantly, the mechanism should include a review clause: after a defined period - such as three years- its operation would be reassessed. If Russia continues to evade its obligations, the mechanism could be extended or reinforced; conversely, if compliance begins, the scope of measures could be recalibrated accordingly.

This approach - implemented through a Recommendation of the Committee of Ministers - offers a balanced legal and political framework for transforming frozen Russian assets into a credible instrument for enforcing ECtHR judgments. At the same time, it would preserve the integrity of the European Convention system.

The proposed changes would establish a procedurally sound, collective, and proportionate method for confiscating Russian assets, while ensuring the effective enforcement of ECtHR judgments. This, in turn, would reinforce the authority of the Court, provide tangible redress to victims, and align with the broader framework of holding the Russian Federation internationally accountable.

The material was prepared with the support of the International Renaissance Foundation as part of the project “Compensation4UA / Compensation for War Damages to Ukraine. Phase V: Interim Reparations for Victims of Russian Aggression against Ukraine – Exploring Approaches, Needs and Solutions".