The Russian Constitutional Court on the ECHR (and UK parallels?)

pic… just a few lines to note that a judgment from the Russian Constitutional Court (RCC) last week – on which see this very informative post by Maria Smirnova here – has stirred some interest, and prompted the President of the Parliamentary Assembly of the Council of Europe to issue a Press Release expressing her concerns (see here). I’d be fascinated to know more about the judgment, and what it reveals about the situation in Russia generally regarding the ECHR, and the outlook of the RCC. If I understand matters correctly:

  • the judgment stands for the proposition that, as a matter of Russian Constitutional law, Strasbourg judgments in which Russia has been found to violate the Convention do not need to be implemented if doing so breaches the Russian Constitution (but the ‘right to object’ should only be exercised in exceptional cases)
  • in order to determine such a question the RCC has now clarified the procedural means by which cases may reach it.

I understand that, from one angle, the ruling itself can be interpreted in a positive way, in the sense that the RCC indicates that it will strive to find a harmonious interpretation of the national constitution and ECHR law, and look to enter into a ‘constructive dialogue’ with Strasbourg on these matters (the position adopted by other apex courts).

Then again, commentators are also suggesting that the ruling is to be seen in the context of a refusal to implement the Strasbourg judgment in ‘Yukos’ v Russia (see this Report in the Moscow Times, and comments by Smirnova above). Presumably, the system and principles envisaged by the recent RCC ruling apply to any ruling against Russia that may conflict with the national constitution (see the last para below).

Russian law and Convention obligations (international law)

For the avoidance of doubt, the position as set out above (the first of the two bullet points) amounts to the position under Russian law as interpreted by the RCC. The position under international law – relevant in that a Strasbourg judgment against Russia will give rise to international legal obligation to implement it – is quite clear: a State may not plead its domestic law (whether that is the Constitution or otherwise) as a basis to refuse implementation of its international legal obligations (Article 27 of the Vienna Convention on the Law of Treaties: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. …”).

That is the position at international law. It was the case at the time the Convention was drafted and ratified by its first subscribing States (over 60 years ago). It has also been the established position in the context of the Convention since the earliest case law of the 1960s (cases such as DeBecker v Belgium and the famous ‘Belgian Linguistics’ cases, on which see E Bates, The Evolution of the European Convention on Human Rights (OUP 2010) chapter 6). Russia ratified the ECHR in 1998.

None of this is to say, of course, that a potential conflict between a provision of a national constitution and a Strasbourg judgment is not controversial, potentially at least – and problematic for Strasbourg’s authority.

UK parallels?

With the last point in mind there may be some broad parallels with the matter described above and the situation in the UK. Here questions have been raised over the authority of the Court, and in turn these tend to provoke debate amongst some as to whether its judgments should always be implemented regardless of consequence or national perspective (despite the clear international legal obligation to do so).

As to the questioning of the Court’s authority, a former senior member of the judiciary has gone so far as to question the ‘constitutional legitimacy’ of the Strasbourg Court (Lord Hoffmann, 2009), whilst other former senior members of the judiciary have raised concerns about Strasbourg’s intrusion (as they see it) into fields that should be (they say) a matter for national sovereignty (Lord Judge and Laws LJ). Then again, there are also plenty of other senior judicial voices expressing measured support for the Court (see here).

As to potential non-implementation, it is well known that in some quarters (particularly of the Conservative Party) there is growing resistance to the idea that Strasbourg judgments should be implemented without further question. The Conservative Party ‘October Human Rights Document’ (and so, it would seem, not official Conservative Party policy) suggested that a reform should be secured such that Strasbourg judgments should be treated as ‘advisory’ only (a proposal that it is almost 100% certain that the Council of Europe would never accept).

ImageVaultHandler_aspxOf great relevance too is the UK’s failure to implement the Hirst (prisoner voting) case. The reasons are complex, but boil down to political resistance to doing so, buoyed, no doubt, by the Prime Minister’s past insistence that the matter is for Parliament to decide, not Strasbourg. This matter seems to have gone very quiet in recent months. It is well over a year and half now since a Parliamentary Committee reported on this issue, concluding that there were sound reasons for amending the law. Examining how the implementation of the Strasbourg judgment could be reconciled with Parliamentary sovereignty, the Committee offered the view:

  1. .. the principle of parliamentary sovereignty is not an argument against giving effect to the judgment of the European Court of Human Rights.

  2. Parliament remains sovereign, but that sovereignty resides in Parliament’s power to withdraw from the Convention system; while we are part of that system we incur obligations that cannot be the subject of cherry picking.

  3. A refusal to implement the Court’s judgment would not only undermine the international standing of the UK; it would also give succour to those states in the Council of Europe who have a poor record of protecting human rights and who may draw on such an action as setting a precedent that they may wish to follow.

Citing these paragraphs, Lord Phillips, the former President of the UK Supreme Court (and a member of the Parliamentary Committee in question) commented:

That [paragraph 113 above] surely is the point. We did not sign up to the Human Rights Convention because of concern about our own respect for human rights. We did so because of concern about the behaviour of others.

Lord Phillips was not uncritical of the Court. Nonetheless he concluded by saying:

… when the countries of the Council of Europe are looked at as a whole, the influence of the Strasbourg Court has been beneficial. I have given examples [see his lecture] where Strasbourg has rightly found this Country wanting. I could give many more in relation to other members of the Council of Europe. Europe needs the Convention and Europe needs the Court. I have no hesitation in expressing my conclusion that Strasbourg is a powerful force for good.

pic2With reference to paragraph 113 as extracted above, we observe that one of the arguments for UK implementation of Hirst is to set an example for other States. Concerns are being expressed about the implementation of Strasbourg judgments on the part of several States, with Russia being a notable example (see this recent Report from the Parliamentary Assembly of the Council of Europe and see also here).

Finally, it is worth adding that Russia has also been found in breach of the Convention (Anchugov and Gladkov v. Russia) in a very similar case to Hirst, that is with respect to Russian law which provides that ‘citizens detained in a detention facility pursuant to a sentence imposed by a court shall not have the right to vote or to stand for election’ (in short, as with the UK, there is an automatic ban on prisoners voting if they are being detained on the basis of a conviction). Recalling the RCC judgment noted at the outset of this post, it is significant to note that the relevant Russia law is enshrined in – wait for it – Article 32(3) (chapter 2) of the Russian Constitution (in which connection see various paras of the Strasbourg judgment, especially paras 31, 48-52 and 111).

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