affiliated to the International Association of Constitutional Law
Although the ‘freedom from Strasbourg’ debate in the UK has taken a new turn after the elections in view of the Cameron’s plan to ‘curtail the role of the European Court of Human Rights’ (ECtHR) (p. 58 of the Conservative Party Manifesto 2015), the sovereignty of Parliament remains ‘carefully protected’ in the UK. In Russia, however, until very recently application of the European jurisprudence was much less contested, if at all. Since accession in 1998 the European Convention of Human Rights was given a very high standing with more than 3,000 citations in average per year by higher and regional courts. Moreover, direct reference to ECtHR case law in domestic court rulings was common and federal legislation was often adopted in response to calls for general measures by the Strasbourg Court. As a result, the Russian legal system became consistently and strategically more receptive to international law in general and to the European Convention on Human Rights (ECHR) treaty regime in particular.
This situation changed on 1 July 2015 when a group of Russian MPs requested the Russian Constitutional Court (RCC) to check the constitutionality of the 1998 Federal Law ‘On Ratification of ECHR’, the 1995 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 contradict 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 may signify a change in the general political attitude towards the implementation of decisions of the Strasbourg Court in the future. This is partly caused by the publicity that this case has attracted in the Russian media, although the supremacy of the Constitution has been recognised earlier by RCC justices (Tiunov) and the legal doctrine (Lukashuk, Vitruk).
The position of the Constitutional Court
The RCC confirmed that the contested norms do not contradict the Constitution. Thus, the Convention remains part of the 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 the shared basic values’ and that ‘in the vast majority of cases no conflict between the two documents can appear at all.’ There have hardly ever 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 highest courts of different 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.’ Obviously relevant to this are the following decisions: the German Federal Constitutional Court held that ‘in national law the European Convention on Human Rights is subordinate to the Basic Law’ (judgment of 4 May 2011), while the Italian Constitutional Court confirmed that the provisions of the ECHR are ‘a step under the Constitution, and therefore, preliminary in the process of judicial review of legislation, is an inquiry about their consistency with the Italian Constitution’ (Decisions ns. 348, 349/2007).
Making a targeted 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 ensure the supremacy of the Constitution in the implementation of decisions of the ECtHR. The Court reserves 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.
We may presume that the latter procedural instrument is inspired by some principles in English public law: namely, by provisions in s. 4 of the Human Rights Act 1998 which enable judges to declare that a statute is incompatible with the UK’s human rights obligations under ECHR. However, this is completely new for the Russian legal system, which contains no such legal framework. In consequence, the Constitutional Court suggested that the federal legislator may want to create for the RCC ‘a special legal mechanism to ensure the supremacy of the Constitution in the implementation of ECtHR judgments.’
The position of the President
During the hearing on 1 July 2015, the President’s representative at the RCC Mikhail Krotov, objected to the initial request by MPs. It should be noted that having the President’s representative at an RCC hearing 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’. The degree of participation varies from advocacy to oral or written submission of expert opinion.
In the 1 July hearing 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 is in line with this position.
Connection with the Yukos case
Some analysts believe that this case was initiated by the Duma in connection with the ECtHR ruling in Yukos (2014), which ordered Russia to pay 1.9 Billion Euros in compensation to shareholders of the Yukos oil company. Some of them – according to the Russian government – had benefitted from the tax fraud committed by the company.
Although the RCC denies any connection between the 14 July 2015 ruling and 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.
This is an expanded and revised version of a blog entry published on EJIL: Talk! on 15 July 2015.
Maria Smirnova, LLM, PhD, is a Research Associate in Russian Constitutional Law at the University of Manchester School of Law, project on Sociology of the Transnational Constitution, funded by the European Research Council (Advanced Grant: 323656-STC)
(Suggested citation: M. Smirnova, ‘Russian Constitutional Court Affirms Russian Constitution’s Supremacy over ECtHR Decisions’ UK Const. L. Blog (17 Jul 2015) (available at https://ukconstitutionallaw.org/))