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Genri Reznik: "The Constitution has been repealed at first reading" (Novaya gazeta)

3 December 2015 

By Genri Reznik 

Source: Moscow Helsinki Group [original source: Novaya gazeta

The State Duma has adopted in first reading amendments to the law regulating the Constitutional Court of the Russian Federation. It is proposed to give the Constitutional Court powers to decide whether the Russian state is obliged to implement the decisions of international courts. Were the bill to become law, if, for example, the European Court of Human Rights issues a judgment that the Russian authorities consider to be ‘not in accordance with the Constitution’, they can appeal to the Constitutional Court and obtain a ruling that it should not be implemented. This contradicts the Russian Constitution: Article 15 (Section 4) establishes the priority of international treaties of the Russian Federation over Russian laws. But the amendments will allow the Russian authorities not to implement judgments of the European Court of Human Rights they do not like. For example, not to pay Yukos shareholders 1.87bn euros in compensation for violation of the right to legal defence and fair trial. The amendments have been introduced to the Duma by Council of the Federation senator Andrei Klishas and State Duma deputies Vladimir Pligin, Mikhail Emelyanov, Vasily Likhachev, Aleksei Didenko and Valery Ivanov. 

Genri Reznik, a much respected lawyer who won a case against Russia at the European Court of Human Rights in 2013, first deputy-president of the Moscow Bar Association, and member of the Moscow Helsinki Group, talks about why the idea of evaluating the judgments of international courts at the Constitutional Court of the Russian Federation is absurd: 

“The bill is completely absurd: it turns out that the Constitutional Court must take decisions on concrete cases, in other words it must go beyond the boundaries of its competence. After all, the European Court of Human Rights issues judgments on specific concrete cases, and says that a state violated human rights, and not that some law or other is imperfect. But the Constitutional Court considers the question of the correspondence of laws and decisions of the government to the Constitution, and not the application of a law in a specific case. I can’t imagine how the Constitutional Court would go about finding every judgment of the European Court of Human Rights that meets the displeasure of the current authorities to be unconstitutional. The Constitutional Court would in practice be dragged into an area with which it has nothing to do. 

“This law would not be in compliance with Articles 15 and 17 of the Constitution. There is not a single recognized principle of international law that has not been embedded in the Constitution: its meaning fully coincides with international legal acts. If a contradiction is found between an international treaty and national laws, the norms of the international treaty are applied. After all the treaty is agreed by mutual consent: if you do not want to implement it, then there is a procedure for vacating a treaty, and this is provided for by the Vienna Convention. We shan’t be vacating the treaty, but we don’t want to implement it. It’s surreal. 

“Collisions between national legislation and the position of the European Court do happen, and not only in Russia, and it can be that they are not easy to resolve. Most frequently the states dissatisfied with the judgments of the European Court have been the United Kingdom, France, Belgium, and Austria. For example, in the UK, as in our country, prisoners are not allowed to vote in elections. A few years ago the European Court of Human Rights found that this is a violation of human rights. But the British have yet to change their legislation, and Cameron has even called the judgment of the European Court of Human Rights an example of 'judicial imperialism'. 

“But judgments of the European Court of Human Rights on inhuman conditions of detention in Russian pre-trial detention facilities (Belov v RussiaGasanov v RussiaMysin v Russia, 2014) have had an impact on the authorities, who asked themselves whether they were not in fact putting too many people behind bars. And the law began to change in relation to whether suspects should be held on remand while they are under investigation. A ban on business people being held on remand as a matter of course was issued, and the number of legal grounds for which it is possible to place someone on remand during an investigation was reduced. True, human rights defenders tell us of cases where someone has been remanded in custody in violation of the norms, but on the whole prosecutors have begun to ask courts more rarely for defendants to be remanded in custody. 

“There was a situation when the European Court ruled that the Russian law allowing only female military personnel leave to look after a baby was in violation of the principle of equality (Konstantin Markin v Russia, 2012). In the upshot, our government agreed that the European Court was right. 

“It is perfectly possible that the amendments to the law governing the Constitutional Court will be adopted. We shall see the consequences when the Constitutional Court begins to find that judgments of the European Court of Human Rights should not be implemented, and perhaps we shall live to see the day when they rule that the European Convention of Fundamental Rights and Freedoms, along with other international acts, are unconstitutional. In the current jingoistic frenzy politics rides roughshod over the law.”