Russian law on the priority of the RF Constitution over resolutions of intergovernmental human rights bodies | White & Case LLP International Law Firm, Global Law Practice
Russian law on the priority of the RF Constitution over resolutions of intergovernmental human rights bodies

Russian law on the priority of the RF Constitution over resolutions of intergovernmental human rights bodies

On 15 December 2015, Federal Constitutional Law No. 7-FKZ dated 14 December 2015 "On amendments to the Federal Constitutional Law 'On the Constitutional Court of the Russian Federation'" (the "Law") prepared pursuant to Resolution of the RF Constitutional Court No. 21-P dated 14 July 2015 ("Resolution No. 21-P") came into force.

Resolution No. 21-P suggested that the legislators should introduce a special legal procedure according to which the RF Constitutional Court can resolve the issue of whether it is possible or impossible, based on the principles of supremacy of the RF Constitution and prevalence of the RF Constitution over other laws, to enforce a judgment of the European Court of Human Rights (the "ECHR") with respect to a complaint against Russia. The Law that has come into force provides for somewhat wider powers of the RF Constitutional Court and gives it the right to decide whether it is possible or impossible to enforce a resolution of an intergovernmental body for the protection of human rights and freedoms ("intergovernmental body").

This overview will focus on issues relating to the adoption of the Law and its contents.

 

Key legal consequences of the Law

The fact that the Law has come into force does not mean that Russia no longer accepts intergovernmental bodies' jurisdiction and that its international legal obligations in relation to intergovernmental body's resolutions are terminated. It should be emphasised that Article 27 of the Vienna Convention on the Law of Treaties 1969 (became effective for the USSR on 29 May 1986) provides that a party to this convention may not rely on the provisions of its domestic laws to justify its failure to comply with a treaty.

However, under the Law, a situation may arise where, pursuant to the rules of international law, Russia will have an international legal obligation, but domestically all steps to discharge it will be prohibited.

 

Scope of the Law

The Law gives the RF Constitutional Court powers to examine whether intergovernmental body's resolutions comply with the RF Constitution. The term "intergovernmental body" may include not only the ECHR, but also international bodies acting on the basis of international public law rules regulating human rights and considering individual complaints whose jurisdiction has been accepted by Russia. They include, among others, such UN human rights organisations as the Human Rights Committee and the Committee against Torture.

Accordingly, the Law does not affect resolutions adopted by:

• international courts considering disputes that involve states if such courts are not specialised human rights courts, even if a specific dispute considered by them may involve such issues (for example, the UN International Court of Justice, the UN International Tribunal for the Law of the Sea, the Court of the Eurasian Economic Union), and

• international arbitrations because they are not intergovernmental bodies and are not regulated by universal international human rights treaties (for example, international investment arbitrations created pursuant to bilateral investment treaties, and international commercial arbitrations).

 

Limits within which intergovernmental body's resolutions may be examined

Pursuant to the Law, an intergovernmental body's resolution is examined to determine whether it may or may not be enforced in accordance with the RF Constitution. Accordingly, the RF Constitutional Court may not review this resolution on the merits. It may only determine to what extent the enforcement of such resolution does not contradict the principles of the constitutional system of the RF and the rules of the RF Constitution regulating human rights.

Moreover, pursuant to the RF Constitutional Court Law,[1] the supreme constitutional court's powers do not include the establishment and review of facts. It only resolves the matters of law.

However, it appears that the enacted Law implies that, in the course of the examination of an intergovernmental body's resolution, the RF Constitutional Court takes into account not only the outcome of the examined resolution, but also the circumstances leading to that resolution and the interpretation by an intergovernmental body of the international treaty provisions that are allegedly in conflict with the RF Constitution.

 

Procedure of examination of intergovernmental body's resolutions

The procedure of the initiation of proceedings in the case involving the examination of the possibility of enforcement of an intergovernmental body's resolution involves a request submitted to the RF Constitutional Court by a competent federal executive authority[2]. This authority is the Ministry of Justice of Russia because its objectives include protecting human rights as a whole and protecting Russia's interests in the ECHR in particular[3]. It may send a request at its own initiative or based on the reports of other federal state authorities whose powers include the enforcement of an intergovernmental body's resolution.

Proceedings in the case may not require a hearing.[4] An intergovernmental body is a party to constitutional proceedings and must be notified about them. At the same time, the Law says nothing about the procedural status of the person in whose favour the intergovernmental body's resolution was adopted. Article 53 of the RF Constitutional Court Law does not include it in the list of parties to constitutional proceedings. Given that the resolution of the RF Constitutional Court will directly affect its rights and interests relating to the enforcement of the intergovernmental body's resolution in Russia, it appears that its participation in the case must be procured.

If, following the review, the RF Constitutional Court resolves that it is impossible to enforce the intergovernmental body's resolution, it will be prohibited to take any actions (adopt any acts) within the country if such actions (acts) are aimed at the enforcement of the intergovernmental body's relevant resolution. As stated above, this does not release Russia from its international legal obligations.

 

Expansion of the RF Constitutional Court's powers

It should be noted that the procedure of examination of the ECHR judgments was initially developed by the RF Constitutional Court in Resolution No. 21-P, which gives competent government authorities the right to request the RF Constitutional Court to resolve whether it is possible to enforce the ECHR judgment.

Even previously, the RF Constitutional Court Law did not rule out the possibility for the RF Constitutional Court to assess whether Russian legislation was constitutional – in situations when an intergovernmental body stated in its resolution that such rules violated human rights[5].

The new Law additionally gives the RF President and the RF Government the right to request the RF Constitutional Court to interpret the provisions of the RF Constitution in situations when an intergovernmental body stated in its resolution that such provisions do not comply with the rules of an international treaty[6]. As part of such interpretation, the RF Constitutional Court may also conclude that the RF Constitution prevails over the intergovernmental body's resolution. This procedure may be used if an intergovernmental body's resolution is enforced without any courts being involved.

The issue as to whether courts enforcing an intergovernmental body's resolution may request the RF Constitutional Court to resolve a potential conflict between the provisions of the RF Constitution and the intergovernmental body's resolution is not dealt with by the Law. Nevertheless, Resolution No. 21-P may be interpreted to mean that they, as government authorities having jurisdiction over the enforcement of intergovernmental body's resolutions, have such powers. Otherwise, it would appear that the procedure of examination of intergovernmental body's resolutions where the court files the relevant report with the competent federal executive body which, in turn, files a request with the RF Constitutional Court would violate the principle of independence of the judiciary.

This interpretation is also confirmed by the fact that Resolution No. 21-P requires courts to request the RF Constitutional Court to examine the constitutionality of a Russian law or certain provisions thereof if they consider cases following petitions to revise judicial acts due to the ECHR adopting a judgment stating that a Russian law or certain provisions thereof violate human rights.[7]

Therefore, before the Law was adopted, the procedure of examination of the ECHR judgments within the country was set out in Resolution No. 21-P. The Law only formalised this procedure on a federal constitutional law level. For this reason, the legality of this procedure should be assessed in the context of Resolution No. 21-P.[8]

It should be noted that in accordance with the position of the RF Constitutional Court, this procedure must be used in exceptional cases when the enforcement of the ECHR judgments will affect other persons' rights because the RF Constitution provides for a greater level of protection for them.

Resolution No. 21-P gives examples of such special cases: the Markin case[9] and the Anchugov-Gladkov case.[10] In addition, it assesses the approaches of constitutional courts in European jurisdictions where such courts did not agree to enforce the ECHR resolutions.[11]

It should be noted that the RF Constitutional Court did consider in the past the issue of how provisions of the RF Constitution correlate with provisions of an international treaty as interpreted in other intergovernmental associations' resolutions. It stated then that Russia's membership in such intergovernmental associations should not result in the violation of the key principles of the constitutional system and human rights.[12]

 

Conclusion

The enacted Law formalises the procedure of examination by the RF Constitutional Court of the possibility of enforcement of intergovernmental bodies' resolutions in Russia that has taken shape over the past years. As the RF Constitutional Court stated, it "only rarely believes it possible to use its "right to object" in order to make its contribution (as colleagues from Austria, the United Kingdom, Germany and Italy) to ensure the balanced approach of the European Court of Human Rights."[13]

 

[1] Parts 3 and 4 of Federal Constitutional Law No. 1-FKZ dated 21 July 1994 "On the Constitutional Court of the Russian Federation" (the "RF Constitutional Court Law").
[2] The Law defines this authority as follows: "federal executive authority that has powers to protect the Russian Federation's interests in the proceedings carried out by an intergovernmental body for the protection of human rights and freedoms with respect to complaints submitted against the Russian Federation pursuant to an international treaty to which the Russian Federation is a party" (Article 104.1 of the RF Constitutional Court Law).
[3] Sub-paragraphs 3 and 4 of Paragraph 3 of the Resolution on the Ministry of Justice of the Russian Federation approved by the Decree of the RF President No. 1313 dated 13 October 2004 "Matters of the Ministry of Justice of the Russian Federation".
[4] Part 1 of Article 47.1 of the RF Constitutional Court Law.
[5] Part 1 of Article 85 of the RF Constitutional Court Law.
[6] Article 105 of the RF Constitutional Court Law.
[7] The procedure according to which arbitrazh (commercial) courts and courts of general jurisdiction submit requests to the RF Constitutional Court is set out in Part 2 of Article 101 of the RF Constitutional Court Law introduced as part of the implementation of Resolution No. 27-P of the RF Constitutional Court dated 6 December 2013 in connection with the Markin case – see footnote 9 below.
[8] For example, Resolution No. 21-P addresses the issue of whether the procedure of examination of the ECHR judgments is in line with Part 4 of Article 15 of the RF Constitution (rules of international law prevailing over domestic laws), Part 3 of Article 46 of the RF Constitution (citizens' rights to apply to an intergovernmental body), and Article 79 of the RF Constitution (Russia's membership in intergovernmental associations and delegation by Russia of some of its powers to such associations).
[9] In the case of Konstantin Markin v. Russia (ECHR judgment dated 22 March 2012 with respect to complaint No. 30078/06), the ECHR established that the refusal to grant a three-year paternal leave to a male member of the military service has the characteristics of gender discrimination. In the RF Constitutional Court's opinion, the disputed right cannot be granted to all military service personnel due to the particularities of military service and the need to ensure the defence capacity and safety of the state.
[10] In the case of Anchugov and Gladkov v. Russia (ECHR judgment dated 4 July 2013 with respect to complaints No. 11157/04 and 15162/05), the ECHR established that the provision of the Constitution prohibiting prisoners to vote at elections violates the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the "Convention"). In the RF Constitutional Court's opinion, if Russia agreed to enforce this judgment, this would mean that it would violate the provisions of the RF Constitution or would be required to adopt a new RF Constitution, whereas Russia acceded to the Convention and became a party to it by the adoption of, compliance with and the operation of the RF Constitution.
[11] Görgülü v. Germany (Resolution of the Federal Constitutional Court of the Federal Republic of Germany dated 14 October 2004 in the case 2BvR 1481/04 (BVerfGE 111, 307) in respect of the ECHR judgment in Görgülü v. Germany (ECHR judgment dated 26 February 2004 with respect to complaint No. 74969/01)); Maggio and others v. Italy (Resolution of the Constitutional Court of the Italian Republic dated 19 November 2012 in the case No. 264/2012 in respect of the ECHR judgment in Maggio and others v. Italy (ECHR judgment dated 31 May 2011 with respect to complaints No. 46286/09, 52851/08, 53727/08, 54486/08, 56001/08)); Hirst v. the United Kingdom (Resolution of the Supreme Court of the United Kingdom of Great Britain and Northern Ireland dated 16 October 2013 ([2013] UKSC 63) in respect of the ECHR judgment in Hirst v. the United Kingdom (ECHR judgment dated 6 October 2005 with respect to complaint No. 74025/01)); and the Resolution of the Constitutional Court of the Republic of Austria dated 14 October 1987 in case No. B267/86.
[12] Resolution of the RF Constitutional Court No. 417-? dated 3 March 2015 which stated that it is impossible to apply retrospectively the fact that a non-resident subsequently ceased to be a member of a company and to use it as a ground to terminate a preferential customs regime, even though this ground was established by the Court of the Eurasian Economic Union.
[13] Paragraph 6 of Resolution No. 21-P.

 

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