RS Main The Constitution of the Russian Federation or the European Court of Human Rights?

The Constitution of the Russian Federation or the European Court of Human Rights?

August 2011

A decision from the Constitutional Court of the Russian Federation is going to be required to bring the Russian law into compliance with the international law.

In Russia, an effort has been undertaken to secure, on its territory, preference for the nation's Constitution over international agreements. It has been proposed to give the same preference to individual provisions of Russian legislative acts that have been recognised by the Constitutional Court of the Russian Federation as complying with the Fundamental Law. A bill to this end was introduced to the State Duma on June 16 of this year by Aleksandr Torshin, acting speaker of the Federation Council.

The Russian Constitution declares that commonly recognised principles and norms of international law and international agreements signed by Russia are a constituent part of the country's legal system (Art. 15). It says that "If an international agreement of Russia stipulates other rules than those stipulated by the law, the rules of the international agreement shall apply."

Recently, Chairman of the Constitutional Court of the Russian Federation Valery Zorkin began to insist that preference for international agreements only extends to Russian laws. The Constitution cannot be subordinated to them. Accordingly, provisions of Russian regulations and legislative acts, which have been recognised by the Constitutional Court of the Russian Federation as complying with the Fundamental Law of the nation, cannot be disregarded. The same thing applies to human and civil rights and freedoms. In the Constitution, they are recognised and guaranteed "in accordance with commonly recognised principles and norms of international law", but without fail "in accordance with this Constitution" (Art. 17). President Dmitry Medvedev supported Zorkin's position in January of this year, declaring, "Still, we never handed over so much of Russia's sovereignty as to allow any international court or foreign court to render decisions that would change our national law."

Recently, Chairman of the Constitutional Court of the Russian Federation Valery Zorkin began to insist that preference for international agreements only extends to Russian laws. The Constitution cannot be subordinated to them

The amendments introduced by Senator Torshin would only allow this to happen with a decision from the Constitutional Court. A Russian law or legislative act may only be reviewed after the Constitutional Court of the Russian Federation has assessed its compliance with the Constitution. Changing the law is not required if the Constitutional Court decides that provisions, which displease the ECHR, are constitutional. Prevailing against Russia in a lawsuit, a case would receive from the Russian budget only what monetary compensation had been allocated in it for the ECHR.

At the same time, Torshin suggests that the means of domestic legal defence are exhausted and that a plaintiff can appeal to the ECHR "if, on the motion of an interested person, there is a valid judicial act of the Supreme Court or the Supreme Arbitration Court of the Russian Federation and the proceedings have been concluded."

The bill was endorsed by the State Duma Committee on Constitutional Legislation. It was assumed that the members of the State Duma would take first reading of it during the spring session of Parliament. However, discussion of the bill was postponed at the last minute.

Ekaterina Ryzhova, General Counsel for the ICLC, is convinced that Torshin's initiative is unlikely to be approved. "It effectively permits ignoring a decision made by the ECHR, if the Constitutional Court of the Russian Federation determines that Russian laws censured by Strasbourg do not contradict the Constitution," said the lawyer. “In order to make universally recognised principles and norms of international law, as well as Russia's international agreements, not applicable within the territory of the Russian Federation, it would be necessary to change the Constitution itself, which states that if an international agreement stipulates other rules than those stipulated by the law, then the rules of the international agreement shall apply (Art. 15, Item 4 of the Constitution)".

In order to make universally recognised principles and norms of international law, as well as Russia's international agreements, not applicable within the territory of the Russian Federation, it would be necessary to change the Constitution itself…

Adoption of Torshin's bill could affect the interests of foreign businesses operating in Russia. "Since 2010, there has been a real surge in the number of lawsuits by business owners and legal entities over acts by Russian bureaucrats and law enforcement agencies, which have infringed upon their economic rights," says Aleksandr Skovorodko, a lawyer for the non-governmental organization Open Law. The proportion of these appeals that this company is preparing for out of the total number directed at the ECHR has jumped from 3-4% to 10-15%. According to Skovorodko, business owners complain most often about illegal judicial decisions; non-fulfilment of judicial decisions; violations of property rights; acts by monitoring agencies; and regulations and laws that interfere with business operations. "Society is changing, and so is the attitude toward bribes. If the attitude used to be 'you scratch my back, and I'll scratch yours', then business owners are gradually moving away from this. They understand that if you pay once, you'll have to keep paying forever. They're betting on legal protection rather than the corrupt element. Business owners are beginning to stand up for their rights. If they succeed in this, then they'll be left alone," explained Mr. Skovorodko. "And business owners are winning, more and more as time passes. And much more often than the press writes about it," said the lawyer.

Andrei Susarov,
Tax columnist for the Moscow news
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