Russian Constitutional Court Affirms Russian Constitution’s Supremacy over ECtHR Decisions

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On 1 July 2015 a group of Russian MPs requested the Russian Constitutional Court (RCC) to check the constitutionality of the Federal Law ‘On ratification of ECHR’, the Federal Law ‘On international treaties’, and a number of procedural norms. According to the applicants,

‘participation in international cooperation should not lead to a breach of human rights or contradict the fundamental principles of the constitutional system. In their view, the contested rules oblige the courts and other state bodies to implement unconditionally ECtHR decisions, even if they contradicted the Russian Constitution. As a result … the person who applies the law is put in an impossible situation, because such a conflict might be insoluble.’

Although the RCC held that the contested norms do not conflict with the Constitution, thus leaving the de jure legal status of the Convention intact, this ruling and its high publicity in Russian media clearly signifies a change in the political attitude towards the implementation of decisions of the European Court.

Position of the Constitutional Court

The Court confirmed that the contested norms do not contradict the Constitution. Thus, the Convention remains part of Russian legal system, according to Article 15 (part 4) of the Constitution. However, the Court reasoned that

‘the participation of the Russian Federation in any international treaty does not mean giving up national sovereignty. Neither the ECHR, nor the legal positions of the ECtHR based on it, can cancel the priority of the Constitution. Their practical implementation in the Russian legal system is only possible through recognition of the supremacy of the Constitution’s legal force.’

There is no revolution in admitting that ‘both the Constitution and the European Convention are based on shared basic values’ and that ‘in the vast majority of cases no conflict between the two documents can appear at all.’ There have hardly been any conflicts since 1998, when Russia ratified the Convention. However, when it comes to interpretation, apparently the position can differ. According to the Constitutional Court, ‘in such a situation, by virtue of the supremacy of the Basic Law, Russia will be forced to abstain from the literal implementation of the decision of the Strasbourg Court.’

Interestingly enough, the Court refers to the practice of supreme courts of European countries (Germany, Italy, Austria, and the United Kingdom), which also ‘adhere to the principle of the priority of norms of national constitutions in the execution of the ECtHR judgments.’ Presumably, by mentioning the UK in this list of examples, the Court in fact refers to the loosely interpreted practice of issuing a declaration of incompatibility of a statute with the UK’s human rights obligations under s.4 of the Human Rights Act 1998.

Making a political statement, the RCC underlines that

‘in the resolution of such conflicts it is necessary not to seek self-isolation, but proceed from the necessity of dialogue and constructive engagement. Only in this way can a truly harmonious relationship between the legal systems in Europe be built, based on mutual respect rather than submission.’

Significantly, the decision discusses procedural means to ensuring the supremacy of the Constitution in the implementation of decisions of the ECtHR. The Court retains this prerogative for itself through two existing types of constitutional proceedings:

1) review of the constitutionality of legislation in which the ECtHR has found flaws: any lower instance court re-considering a case on the basis of a decision of the European Court shall submit the relevant inquiry to the Constitutional Court (Article 125 (part 4) of the Constitution);

2) interpretation of the Constitution at the request of the President or the Government of the Russian Federation when the authorities consider a particular ECtHR ruling is impossible to enforce without violating the Constitution (Article 125 (part 5) of the Constitution). If the Constitutional Court of the Russian Federation comes to a conclusion that the Strasbourg decision is incompatible with the Constitution, it is not to be implemented.

This second procedural instrument – the incompatibility ruling – is new for the Russian legal system, which contains no legal framework for it. Therefore, the Constitutional Court suggested that the federal legislature may want to create for the RCC ‘a special legal mechanism to ensure the supremacy of the Constitution in the implementation of ECtHR judgments.’

Position of the President

During the hearing at the Constitutional Court on 1 July 2015, the President’s representative in RCC Mikhail Krotov, objected to the initial request by MPs. It should be noted that having the President’s representative at an RCC hearing, though it may seem contrary to the principle of separation of powers, is a normal practice in Russia. Since 1996, on the basis of a Presidential decree, the representative is empowered to participate not only in hearings on determining the (un)constitutionality of Presidential decrees, but also ‘in any other hearing by the invitation or consent of the Constitutional Court’.

Krotov stated,

‘without denying the existence of systemic problems in the delimitation of the competence of the European Court of Human Rights and the basis for its interaction with national constitutional courts, we believe that any grounds for declaring disputed … norms inconsistent with the Constitution of the Russian Federation are absent.’

However, he added, not all ECtHR rulings are to be implemented:

‘The binding nature of judgments of the European Court of Human Rights is not in doubt, however the boundary of their legal force is limited. The decisions of the European Court are not abstract, they are taken on specific cases, state the specific violations of the Convention in respect of specific individuals’.

He further continued that those ECtHR decisions that indicate ‘flaws of domestic legislation, cannot be unconditionally implemented’.

The Constitutional Court in its final ruling mirrored this position of the President’s representative.

Connection with the Yukos case

It is believed by some analysts that this case was initiated by the Duma in connection with the ECtHR ruling in the Yukos case, which ordered Russia to pay 1.9 billion euro compensation to shareholders of the oil company. Some of them – according to the Russian government – had benefitted from the tax fraud committed by the company.

Although, predictably enough, the RCC denies any connection of the 14 July Ruling with the Yukos case, it may be assumed that the desire to counter ‘unwanted’ and allegedly politically motivated decisions of the ECtHR has prompted the creation of a new legal framework within the national legal system. Alternatively, the move to remind Russians and the outside world of the supremacy of the Russian Constitution may be inspired by the current political climate and extensive exchange of sanctions between the EU and Russia. Unfortunately, such a response to sanctions could lead to (in)voluntary serious consequences for the justiciability of human rights in Russia.

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Nick says

August 5, 2015

Dear Maria,

Can you please explain your conclusion "Unfortunately, such a response to sanctions could lead to (in)voluntary serious consequences for the justiciability of human rights in Russia."?

Do you think that the ECtHR can be trusted? Russia is hated in Europe. Why would European judges be free of public opinion pressure when writing their verdicts?

For example, in 1959, a US judge, Leon M. Bazile, echoing Johann Friedrich Blumenbach's 18th-century interpretation of race, proclaimed that "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.". However, some time later the public opinion changed and interracial marriages were allowed.

Similarly, the role of public opinion is evident in the recent US Supreme Court decision, Obergefell v Hodges. The decision states:
"Extensive public and private dialogue followed, along with shifts in public attitudes.", "This development was followed by a quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes toward greater
tolerance.", "Over the last few years, public opinion on marriage has shifted rapidly" (the latter quote is from the Justice Roberts' dissent).

Hence, and I think this is not a news, courts decide cases based in part on public opinion. The public opinion in Europe towards other peoples is well-known. This public opinion has recently allowed attacking and killing of very many people in Serbia, Iraq, and Libya, without observance of international law. This public opinion has recently allowed assisting putschists in Ukraine and recognizing their unconstitutional "government" and thus violating basic rights of many millions of Ukrainians. This public opinion allows keeping Russophones in Estonia and Latvia without some basic rights, including voting rights. Why would European judges behave differently towards Russians than Leon M. Bazile behaved towards blacks?