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Russian Federation: Constitutional Court Allows Country to Ignore ECHR Rulings

(May 18, 2016) On April 19, 2016, the Constitutional Court of the Russian Federation (RF) ruled for the first time that a decision of the European Court of Human Rights (ECHR) cannot be implemented in Russia because measures aimed at its implementation would contradict the Russian Constitution. (Press Release, RF Constitutional Court, Constitutional Court Announced Its Judgment in Case on the Possibility of Implementing the ECHR Ruling of July 4, 2013, in Anchugov and Gladkov v. Russia (Apr. 19, 2016), RF Constitutional Court website (in Russian).)

Background Information

The recent decision followed the Court’s July 2015 ruling that, in exceptional cases, Russia could deviate from its obligation to enforce an ECHR judgment if this was the only possible way to avoid a violation of the fundamental principles and norms of the Russian Constitution. The Constitutional Court noted that a special legal mechanism needed to be established under which the Constitutional Court would decide whether or not the enforcement of ECHR judgments was contradictory to the Constitution. (Resolution of the Constitutional Court of the Russian Federation No. 21-P of July 14, 2015, on the Matter of Verifying the Constitutionality of Provisions of Article 1 of the Federal Law on Ratification of the Convention on Human Rights and Fundamental Freedoms, ROSSIISKAIA GAZETA (RG) (official publication) (June 27, 2015) (in Russian).)

A federal law passed in December 2015 elevated the July Court ruling to the level of national legislation, allowing the Constitutional Court to decide whether principles declared by an international tribunal can or cannot be applied in Russia.  (Federal Law No.7-FKZ of December 14, 2015, on Amendments to the Federal Constitutional Law on the Constitutional Court of the Russian Federation, RG (Dec. 15, 2015) (in Russian).) As explained by one of the Constitutional Court Justices, this does not mean that Russia will not implement ECHR judgments. Rather, if Russian judges discover some inconsistencies between the Russian Constitution and an ECHR ruling during their review of cases reopened in accordance with the ECHR ruling, they will be required to request a constitutionality review from the Russian Constitutional Court. (Tamara Morshchakova, Constitutional Court Ruling on Implementation of ECHR Judgments, OPENRUSSIA.RU (July 15, 2015) (in Russian).)

Case Details

In the recently decided case, the Ministry of Justice of the Russian Federation submitted a request to the Court to declare the ECHR ruling impossible for implementation in Russia because in the opinion of the Russian government the European court’s conclusions contradict the country’s Constitution. The petitioners, two former felons, had argued that it was illegal to restrict their right to vote in general elections during their terms of imprisonment and disputed the legality of the Constitution’s article 32(3), which states that “citizens who are kept in places of imprisonment under a court sentence shall not have the right to elect and be elected.”  (Constitution of the Russian Federation, art. 15.4, RF Constitution official website (in Russian; click on “English” hyperlink in upper right corner of page for text in English).)

In July 2013, the ECHR recognized that this ban contradicts the European Convention on Human Rights and ordered Russia to secure electoral rights of prisoners through a new interpretation of the constitutional provision in question.  (Case of Anchugov and Gladkov v. Russia, App. No. 11157/04, Eur. Ct. H. R. (2013), HUDOC.)

The Constitutional Court has now ruled that it would be impossible to provide electoral rights to all prisoners. The Court said that correctional legislation can be modernized, however, in order to give voting rights to specific groups of convicts depending on the type of sentence they are serving.  According to the Court, the availability of electoral rights should be “variable, reasonably selected, and proportional” to the severity of the punishment.  It stated that legislators may amend existing legislation to introduce more alternative forms of punishment that would deprive a convict of freedom but would not entail exclusion from the political process.  Until such legislation is passed, the implementation of the ECHR ruling cannot occur in Russia, in the opinion of the Court.  (Constitutional Court Announced Its Judgment … , supra.)

General Enforcement of ECHR Rulings

The Russian Federation became the 39th Member State of the Council of Europe on February 28, 1996 (Russian Federation // 47 States, One Europe, Council of Europe website (last visited May 7, 2016)), and the European Convention on Human Rights was ratified by Russia in 1998.  (Federal Law No. 54-FZ of March 30, 1998, on Ratification of the Convention on Human Rights and Fundamental Freedoms, RG (Apr. 7, 1998) (in Russian).) According to the ratification Law, Russia recognized the jurisdiction of the ECHR over the interpretation and application of the Convention and its Protocols, in cases of alleged violations of the Convention by the RF.  (Id. art. 1(7).)

The Constitution of the RF provides for supreme juridical force and direct application of “universally-recognized norms of international law and international treaties and agreements of the Russian Federation,” which must be an integral part of Russia’s legal system.  If an international treaty or agreement of the RF provides for other rules than those envisaged by Russian law, the rules of the international agreement must apply.  (Constitution of the Russian Federation, art. 15(4).)

In addition to awarding compensatory payment to a person whose rights under the Convention and Protocols were violated by the state, the ECHR may impose on the respondent state a requirement to eliminate violations, avoid their occurrence in the future, and restore the applicant’s rights as they were before the violation (restitutio in integrum) by taking specific individual and general measures.  (European Convention on Human Rights (as of June 1, 2010, amended by Protocols Nos. 11 & 14, supplemented by Protocols Nos. 1, 4, 6, 7, 12, & 13), art. 41, Council of Europe website (last visited May 13, 2016).) The general measures are aimed at bringing the national legislation and administrative practices of the responding state in line with the requirements of the Convention and the legal standards of the Council of Europe. These measures may include improvement of the national legal system, adoption of new laws, judicial reform, translation and dissemination of ECHR documents, etc.  (MICHAIL TREUSHNIKOV, GRAZHDANSKII PROCESS [CIVIL PROCESS] 170 (Moscow 2005) (in Russian).)

Previously, the Constitutional Court played an important role in integrating European human rights law and Russian legislation. According to Russian Constitutional Court Chairman Valerii Zorkin, “[m]ore than fifty Constitutional Court decisions have been based on positions of the ECHR, with profound consequences for Russian law and the Russian legal system.”  (Anna Zakatnova & Viktor Vasenin, “We Do Not Live in a Deep Freeze”: On Sunday the Constitutional Court Will Be 20 Years Old, RG (Oct. 26, 2011) (in Russian).)  If a change in legislation is needed, the RF Constitutional Court either requires legislators to pass a new law or formally interprets Russian law in the light of the given ECHR decision. (Constitution of the Russian Federation, art. 125(4).)  For example, following ECHR judgments, the Constitutional Court of Russia required Russian legislators to amend the Civil Procedural Code with provisions allowing the reopening of civil cases based on newly discovered circumstances (Resolution of the Constitutional Court of the Russian Federation No. 21-P of July 14, 2015, …, supra) and ordered the reform of the appellate process.  (William E. Pomeranz, Uneasy Partners: Russia and the European Court of Human Rights, 19:3 HUMAN RIGHTS BRIEF 20 (Spring 2012).)

This practice may change following the April Court ruling.  (RF Constitutional Court Stopped the Implementation of the ECHR Ruling, NEWSRU.COM (Apr. 19, 2016) (in Russian).)