Russian Court has precedence over international
The Federation’s Constitutional Court given the right to ignore decisions taken by international institutions
Vladimir Putin has signed off a law which allows Russia’s Constitutional Court to ignore decisions taken by international human rights and freedoms bodies if they contravene Federation laws. A statement published on the Russian President’s website says that the Court is now able to make a judgement as to whether implementing certain decisions taken by inter-governmental human rights and freedom agencies are consistent with the principles of primary and supreme legal powers enshrined in the Russian Constitution.
The law has been prepared in the light of the adoption of a Constitutional Order dated 14 July 2015. On that day, the Court ruled that, in exceptional cases, decisions taken by the European Court of Human Rights (ECHR) would not be implemented if they ran counter to the principles and norms of the Russian Constitution (the Court itself would make a determination as to whether any EHCR decision would be in breach of Russian law). According to Ella Pamfilova, Russia’s Human Rights Commissioner, the July Order reflects practices common in the Supreme Courts operating in European countries.
The new law enables a challenge to be made as to the enforceability of decisions taken by an inter-governmental human rights agency. However, the text does not include a precise definition as to what exactly is meant by an inter-governmental agency rights, said Tamara Morshchakova, a member of the Presidential Council for the Development of Civil Society and Human Rights (HRC) in an interview with “Kommersant”.
Morshchakova explained that implementation of global agreements and widely recognised principles of international rights and freedoms is the duty of all State agencies and courts, not just the Constitutional Court. “The ordinary courts will not be free, I think, to fulfil these agreements and principles unless they are given the necessary authority by the Constitutional Court”, she added. Overall, Morshchakova believes that this legislation significantly reduces the negotiating powers of Russian and international institutions.
Implementation of this law could be bad news for Russian citizens, said Natalya Evdokimova, an HRC member in an interview with Nation-news.ru. When Russia joined the Council of Europe, it agreed that the EHCR would be regarded as the supreme authority. The EHCR is very often the last port of call for Russian citizens when taking action to defend their rights. But now the Constitutional Court can decide against implementing decisions taken in Strasbourg. “In my view, this constitutes a breach of international law, as well as a violation of human rights. The upshot of all this is that a citizen who receives a favourable decision from the European Court is unable to defend his or her rights if Russia refuses to be bound by an EHCR ruling.”
By approving this law, Russia has broken commitments made when it joined the Council of Europe (CoE), said Lyudmila Alexeyeva, Chair of the Moscow-Helsinki Group and HRC member in an interview with Radio Moscow. She believes that the CoE now has the formal right to exclude Russia. “Our Constitutional Court has repeatedly and shamefully considered unconstitutional laws to be constitutional. Given their outrage at the decisions taken by our incompetent courts which are limiting rights for justice, hundreds and thousands of our citizens are appealing to the EHCR and winning”, said Alexeyeva.
All countries joining the Council of Europe are obliged to comply with definitive rulings from the EHCR, said Thornbjørn Jagland, CoE’s Secretary-General. “Russia’s Constitutional Court will need to ensure their compliance with the Convention (on Human Rights) when it has to implement new provisions. The CoE can only make a judgement on Russia’s implementation of its commitments as and when it is presented with a specific case. Apparently, a number of CoE Member States have looked at the compatibility of Strasbourg Court rulings with their own State constitutions. So far, countries have always managed to find solutions that are consistent with the provisions of the Convention. This too should be possible in Russia”, he said.
From a formal legal perspective, there is nothing illogical about the adopted law – our Constitution gives it priority over international agreements, says the lawyer Andrey Maksimov, an expert who sits on the Public Initiatives Committee. “But what does this all mean in practical terms? It means that international legal mechanisms that protect citizens’ rights can always be blocked by a particular country – in this case, the Russian Federation”, he said. In Maksimov’s view, the principal body in front of which a “barrier” has been erected is that of the European Court.
“The Russian authorities’ reasoning that the EHCR can make rulings that run counter to the Russian Constitution is both absurd and deliberately misleading. It is a blatant distortion of the reality in modern day Russia where these same authorities are guilty of often ignoring and violating human and constitutional rights, while the courts regularly demonstrate an inability to deliver justice”, says Denis Krivosheev, Deputy Director of the Regional Programme of Amnesty International (Europe and Central Asia).
At a meeting with Vladimir Putin, Valery Zorkin, Chair of the Constitutional Court, stated that the Court wanted to resolve potential difficulties with the EHCR through dialogue. “We’re not living in a vacuum cut off from everyone else. We work extremely closely with our colleagues abroad. The Court is a member of a world body of constitutional courts which have been operating for several years, as well as collaborating with the European Association of Constitutional Courts and its Asian equivalent. In Europe, the institution we cooperate with most is the Strasbourg Court”, he added.
Author: Georgy Ivanushkin