Constitutional Court to Decide on Enforceability of ECtHR Judgments in Russia

On 14 December 2015, the Russian President signed a federal law endowing the Russian Constitutional Court with new authorities. According to the new law, the Russian Constitutional Court will have jurisdiction to deny enforcement of international human rights judgments incompatible with the Constitution of the Russian Federation.

Upon the request of certain authorised governmental bodies, the Constitutional Court will decide whether ECtHR judgments are compatible with constitutional provisions of the Fundamentals of the Constitutional System and on human rights.

The drafters used the term “judgments of international judicial bodies responsible for human rights protection”, but de facto the law refers primarily to European Court of Human Rights (“ECtHR”) judgments. Previously, the Constitutional Court confirmed that both the Convention and ECtHR judgments constitute an integral part of the Russian legal system insofar as they involve the interpretation of the rights and freedoms stipulated in the Convention.

There are two new procedures provided under the law. The Constitutional Court is now authorised to consider the possibility of executing a human rights judgment and to give an interpretation of the Russian Constitution. The first procedure starts upon the request of the Ministry of Justice as the governmental body representing Russia in the ECtHR. The second procedure commences upon request of the President or the Government of the Russian Federation.

Under the first procedure the Constitutional Court may rule without an oral hearing where it can resolve the issue on the basis of its previous legal reasoning, and a party’s rights remain unimpaired if no hearing is conducted.

As a result, the Constitutional Court will decide on the (im)possibility of executing the ECtHR judgment, in whole or in part. Both procedures might lead to failure to take action to enforce the ECtHR judgment.

The Reasons to Adopt the Law

This law implements the findings of the Constitutional Court in its Ruling dated 14 July 2015. There the Constitutional Court noted that the ECtHR’s legal position could be implemented only subject to the supremacy of the Russian Constitution. For this reason, in exceptional cases Russia may refrain from enforcement of an ECtHR judgment as an emergency measure if it would otherwise violate fundamental principles and rules of the Russian Constitution.

The Ruling referred to the similar practice of the following European countries: Austria, Great Britain, Germany and Italy. The Constitutional Court closely followed the position of the Federal Constitutional Court of Germany in the Görgülü case. The German court ruled: no contradiction with the aim of commitment to international law if the legislature, exceptionally, does not comply with the law of international treaties, provided this is the only way in which a violation of fundamental principles of the constitution can be averted.

However, in the Görgülü case the applicant’s interests were opposed to the interests of third persons (of a child and the foster parents’ rights). Therefore, the German Constitutional Court invoked the sovereignty argument in order to justify the enforcement of private persons’ rights rather than the state’s interests.

The Russian Constitutional Court also mentioned cases where the legal positions of the ECtHR and the Constitutional Court differed, such as Anchugov and Gladkov v. Russia concerning the denial of prisoners’ voting rights. In another instance, the notorious Konstantin Markin v. Russia case (2010) led to the conflict of two jurisdictions concerning parental leave for national servicemen and the notion of discrimination. The Presiding Judge of the Constitutional Court insisted that the ECtHR has to take into account the difference of cultural traditions among Member States to the Convention.

In another recent case, the ECtHR did not agree with the Constitutional Court concerning the right to free legal assistance in administrative proceedings. The Constitutional Court ruled that free legal assistance was not necessary in a case where the degree of real intrusion to the constitutional rights is not comparable to the impact of criminal proceedings, as the applicant had been under arrest for only three hours. Conversely, the ECtHR in Mikhaylova v. Russia arrived at the conclusion that the gravity of administrative detention as a possible sanction was sufficient to conclude that the applicant should have had legal assistance free of charge.

However, the underlying reasons for adopting the new law rest not only in the legal context. President Vladimir Putin argued that some of the ECtHR judgments have political, rather than legal, motivations, and alluded to the Ilascu and Others v. Moldova and Russia case.

Arguably, Russia is likely to label the following cases pending at the ECtHR as “politically motivated”:

1. Two pending inter-state cases by Georgia (in the first case, where the ECtHR considered an administrative practice amounting to collective expulsion of aliens, the just satisfaction issue is pending before the ECtHR, and the second case was declared admissible); and

2. Three pending inter-state cases by Ukraine and more than 20 individual applications in relation to the Ukrainian crisis (the first inter-state claim concerns the events in the Crimea and subsequent developments in eastern Ukraine, and the second case concerns the alleged abduction of three groups of children in eastern Ukraine. The latest inter-state application was lodged by Ukraine on 27 August 2015).

The Ministry of Justice has already noted that the Constitutional Court’s Ruling will be taken into account when executing Anchugov and Gladkov v. Russia and OAO Neftyanaya Kompaniya YUKOS  v. Russia.

Analysis

The issue of whether international law prevails over the Russian Constitution has, since a long time, been a matter of academic debate. Under article 15(4) of the Russian Constitution, if an international treaty of the Russian Federation diverges with the law, the rules of the international treaty shall be applied.

However, as follows from the above position of Russian legislature and the Constitutional Court, the term “law” here does not include the Constitution. In other words, if an international treaty provision on human rights, as interpreted by the ECtHR, contradicts the Russian Constitution, as interpreted by the Constitutional Court, then the latter prevails.

Yet, arguably, article 15(4), taking into account also article 17(1), implies that international legal rules can expand and deepen the scope of protection granted by the Russian Constitution. Otherwise, adherence to international human rights standards would become meaningless.

Moreover, while states opposing the execution of certain ECtHR judgments due to constitutional constraints are in a minority among Council of Europe members, the procedures, introduced by the new law, do not have analogues even in these countries.

By ratifying the Convention, Russia ipso facto accepted the jurisdiction of the ECtHR. The ECtHR relies on the principle of subsidiarity, developed in the Court’s case law and found in Protocol No. 15 to the Convention. Under this principle, Member States are free in choosing the means to comply with ECtHR judgments (usually this involves general and individual measures), except for in cases of just satisfaction.

Among other individual measures, article 41 of the Convention provides that the Court shall award just satisfaction only if domestic law does not allow complete reparation to be made, and even then only “if necessary”. Payment of money to an injured person as such can hardly result in any inconsistency with the Constitution. Nonetheless, under the new law this is only up to the Constitutional Court to decide.

Conclusion

According to the amendments, the “final say” in the possible argument of two courts will rest with the Constitutional Court.

Bearing in mind that the Convention is “a living instrument which… must be interpreted in the light of present-day conditions”, the ECtHR develops the Convention text by applying standards currently accepted in the Member States, not those prevalent when the Convention was adopted. Therefore, the execution of ECtHR judgments implies that the Respondent is in line with the European standards of human rights’ protection.

Implications of the new law will largely depend on how the Constitutional Court uses its “right to object” under the new procedures. Hopefully, the Court will avoid politicising legal cases and uphold European standards of human rights protection.

Anastasia Rogozina

DAAD scholarship holder, Kiel, Germany