In July, one of the most talked-about events in Russia was the Constitutional Court’s ruling that Russia may deviate from compliance with decisions of the European Court of Human Rights (ECtHR). However, as IMR legal expert Ekaterina Mishina notes, this decision should come as no surprise. Rather, it is the natural extension of a widely held attitude in political circles, according to which Russia can afford not to comply with judgments of the Strasbourg Court if it doesn’t like them.
The Constitutional Court’s July 14 ruling regarding Russia’s compliance with decisions of the European Court of Human Rights (ECtHR) agitated hearts and minds. Headlines read: “CC Allows Russia Not to Comply With ECtHR Decisions,” “Constitutional Court Ruled Optional Execution of ECtHR Judgments,” and so forth.
On July 16, the Parliamentary Assembly of the Council of Europe (PACE) responded. PACE President Anne Brasseur said that all countries that have signed the European Convention on Human Rights are obliged to comply with the decisions of the ECtHR. Brasseur expressed concern about the ruling of Russia’s Constitutional Court, according to which Russia could simply refuse to comply with the decisions of the Strasbourg Court if the ECtHR interprets the European Convention in a way that contravenes the Russian Constitution.
Passions ran so high over the decision, one might well think we hadn’t heard anything like it before. But we have, on many occasions, heard and read about this very position in articles and interviews of Constitutional Court Chairman Valery Zorkin, as well as in draft laws and resolutions of the court. Zorkin protects Russian sovereignty as zealously as a dog protects its bone, and he sees the unsavory Strasbourg Court as an encroacher upon that sovereignty.
The CC first began to suspect mischief on the part of the ECtHR on October 7, 2010, when the European Court ruled on the case of Russian serviceman Konstantin Markin, a divorced father of three who had been denied paternity leave. Markin started out by seeking recompense in Russia, eventually reaching the Constitutional Court. The result was decision № 187-O-O, made on January 15, 2009, which stated that Markin’s constitutional rights had not been violated.
The ECtHR Chamber disagreed with the conclusions of the CC, ruling that they contravened Articles 8 and 14 of the European Convention insofar as they constituted gender-based discrimination in the exercise of an individual’s right to private and family life. The ECtHR’s ruling offended Zorkin, and on October 29, 2010, Rossiyskaya Gazeta published his article “The Limits of Compliance.” In it, Zorkin characterized the ECtHR’s decision as a turning point in the relationship between the Constitutional Court and the ECtHR, saying, “For the first time the European Court has questioned a decision of the Constitutional Court of the Russian Federation in tough legal terms.” Moreover, Zorkin perceived this ruling as an infringement upon Russia’s sovereignty: “Based on Article 46 of the Convention, does the European Court have the right to recommend (and even command) that a respondent state make changes to its legislation, considering that the Court has repeatedly stressed in its own decisions that a respondent government has priority in selecting appropriate measures to address violations? Isn’t such an instruction a direct encroachment upon national sovereignty, clearly beyond the scope of the rights and powers provided for in the Convention, and in this regard clearly beyond the jurisdiction established by the Convention?” [Emphasis mine.]
These questions were intended to be answered only in the affirmative, as evidenced by the following quote from the same article:
“Every decision of the European Court is not only a legal but also a political act. When such decisions are made for the benefit of the rights and freedoms of citizens and the development of our country, Russia will always strictly comply with them. But when certain decisions of the Strasbourg Court seem questionable from the standpoint of the essence of the European Convention on Human Rights and, moreover, directly affect national sovereignty and the fundamental constitutional principles, Russia has the right to develop a defense mechanism against such decisions. It is through the prism of the Constitution that conflicts between the rulings of the CC and those of the ECtHR must be resolved. Whenever someone attempts to ‘direct’ the legal environment in the country, ignoring the historical, cultural, and social situation, such ‘directors’ must be corrected. Sometimes, in the strongest possible terms.”
In November 2010, speaking at the XIII International Forum on Constitutional Justice, Zorkin revisited the issue and declared that “Russia recognizes the binding decisions of the European Court of Human Rights, [and] its priority in the interpretation of the European Convention for the Protection of Human Rights and Fundamental Freedoms, provided that the sovereignty of the Russian Federation is protected.” In the same speech, he said that although Russia signed the European Convention, as well as a number of protocols, thus recognizing the jurisdiction of the ECtHR, and undertaking to be bound by its decisions, “if Russia wishes, it can withdraw from the jurisdiction of the ECtHR.”
At the same time, Constitutional Court judges announced the introduction of a “mechanism to protect national sovereignty” to enable Russian authorities to ignore decisions of the ECtHR that differ from the position of the CC. In response, Zorkin emphasized that he does not favor a direct conflict with the European Court: “I would not like the CC to come to a confrontation with the ECtHR, which would encourage those in Russia who try to use any pretext to shut the door to Europe.”
Constitutional Court Chairman Valery Zorkin protects Russian sovereignty as zealously as a dog protects its bone. And he sees the unsavory Strasbourg Court as an encroacher upon that sovereignty.
Seeds of wrath against the Strasbourg Court fell on fertile soil, and the tempting idea of selective compliance with ECtHR decisions, under the guise of protecting Russia’s national sovereignty, captured the imagination of many high-ranking officials. Politicians and constitutional law experts joined in the debate in support of Zorkin. In 2011, the first of two infamous bills introduced by Senator Alexander Torshin passed in a first reading. The bill stipulated that Russia is free to ignore its obligations under the European Convention until the CC agrees with the decisions of the ECtHR. The second bill proposed creating a counterpart of the Strasbourg Court that would serve the Commonwealth of Independent States countries to reduce the flow of complaints from Russian citizens to the ECtHR. These bills were never passed, but they could be revived at any time.
In late 2013, the question of mandatory compliance with ECtHR decisions came to the fore again, in the run-up to the CC ruling on a second case involving Russian serviceman Konstantin Markin. The long-awaited decision was announced on December 6, 2013, and was cause for bewilderment, since Markin was left with his problems unsolved and was informed that in his case, remedial measures had not been exhausted. It also provided some sense of relief, since the CC evaded a direct confrontation with the Strasbourg Court, as well as a sense of admiration for the CC’s acrobatics of legal hairsplitting, since the decision was formulated in such a way as to suit almost everyone.
The CC has made it clear who will have the final word on the issue of compliance with Strasbourg Court decisions:
“The decisions by the European Court of Human Rights are the basis for revision of a civil case due to changing circumstances. Under the proceedings in such a case, the court can determine that enforcement of a decision by the ECtHR is not possible within the framework of existing Russian legislation. Insofar as the European Convention on Human Rights recognizes essentially the same values as the Constitution of the Russian Federation, this conclusion makes it necessary to review the constitutionality of a provision affected by an ECtHR decision. Such issues can only be resolved by the Constitutional Court of the Russian Federation.”
In July 2014, a number of amendments were made to the Federal Constitutional Law on the Constitutional Court, including the following:
“...in reviewing a case in connection with the adoption by an intergovernmental body protecting human rights and freedoms of a resolution that states a violation of human rights and freedoms in the Russian Federation, ...having arrived at the conclusion that the applicability of the relevant law can be determined only after it is confirmed that it conforms to the Constitution of the Russian Federation, a court shall request that the Constitutional Court of the Russian Federation review the constitutionality of this law.”
This provision is an attempt to create a domestic legal mechanism for non-compliance with ECtHR decisions—one that is technically based on the courts’ requests with respect to specific acts of the Strasbourg Court, but is effectively driven by considerations of political expediency and the personal inclinations of Russian judges, who are easily convinced to initiate such requests.
On July 1, 2015, 93 members of Russia’s parliament submitted to the CC a request to review the constitutionality of provisions of a number of legislative acts governing enforcement of ECtHR judgments in Russia. The Constitutional Court’s decision, announced on July 14, embodied the concept of the supremacy of the Constitution and the continuation of the legislative changes of 2014.
Here is a summary of the CC’s position as portrayed in the official press release: Russia’s participation in an international treaty does not imply relinquishment of national sovereignty; thus, neither the European Convention, nor ECtHR legal positions based on the Convention, can override the supremacy of the Russian Constitution. Their practical implementation in the Russian legal system is possible only on the condition that the Russian Basic Law is recognized as the supreme legal force. The Constitution of the Russian Federation and the European Convention are based on common core values, and conflicts usually do not occur, but may occur if the ECtHR interprets the Convention in a way that contravenes the Constitution. In such a situation, Russia, by virtue of the supremacy of the Basic Law, will be compelled to withdraw from literal compliance with a decision by the Strasbourg Court.
The resolution stipulates that the supremacy of the Constitution can be ensured only by the Constitutional Court, using one of two procedures:
- Reviewing the constitutionality of legislation in which the ECtHR has found flaws. The relevant inquiry must be submitted by a court of general jurisdiction or an arbitration court, which must perform a procedure to review the case on the basis of the ECtHR decision.
- Interpreting the Constitution at the request of Russia’s president or government, once the authorities have determined that a particular ruling by the ECtHR in relation to Russia cannot be enforced without contradicting the Basic Law.
The resolution also authorizes lawmakers to establish, on behalf of the Constitutional Court, a special legal mechanism to ensure the supremacy of the Constitution in enforcement of ECtHR decisions.
So the sensation failed to materialize—a legal position was formulated that was merely a logical incarnation of a very popular point of view, according to which the final decision on the enforcement of ECtHR rulings shall rest with the Constitutional Court, the guarantor of the supremacy of the Constitution and the guardian of Russia’s national sovereignty. The political will to create a mechanism that allows Russia not to comply with Strasbourg Court decisions it doesn’t like was heeded and enshrined in a judicial act—one that is final and not subject to appeal. How exactly the procedures provided for in the decision will function remains to be seen.