RS Main "Formally, the Constitution of the Russian Federation is above all. But the spirit of its tenets is in complete harmony with every current international agreement"

"Formally, the Constitution of the Russian Federation is above all. But the spirit of its tenets is in complete harmony with every current international agreement"

August 2011

Mikhail Krasnov,
head of the department
of Constitutional
and Municipal Law
in the National
Research University
‘Higher School of Economics’

In an interview with Russian Survey, Mikhail KRASNOV–one of most well-known constitutionalists in the country and head of the department of Constitutional and Municipal Law in the National Research University "Higher School of Economics" – did not deny that the business environment may be impacted by legislating the supremacy of opinions from the Constitutional Court of the Russian Federation about the compliance or non-compliance of internal legislation with the norms of international agreements that have been signed by the nation.

- Does our Constitution really speak of the supremacy of international agreements over Russian laws alone, but not over the Constitution?

- A sly position. Formally, for us the Constitution of the Russian Federation is above all. But the spirit of its tenets, at least the part that governs the foundations of the constitutional system, and the rights and freedoms of citizens, is in compete harmony with every current international agreement–the Universal Declaration of Human Rights, the European Convention on Human Rights, and other documents which have been signed and ratified by Russia. That's why in 1993 the creators of the Constitution quietly added a provision which states that commonly recognised norms of international law and Russia's international agreements are part of our legal system. This was done without any fear that it would infringe on our sovereignty. The very Constitution was created absolutely identically to these principles. What's more, this completely agrees with the foundations of our Constitution, that a person, his rights and freedom, are what matters most. Government must exist for the sake of these things.

- But, as you know, different lawyers try cases in the Constitutional Court of the Russian Federation and the European Court of Human Rights. Might they not have differing opinions about some issue or another?

- The European Court of Human Rights (ECHR) renders decisions based on the European Convention for the Protection of Rights and Fundamental Freedoms, which Russia has ratified and which the Russian Constitution considers part of our legal system. The bottom line is that the Constitution cannot conflict with the principles of rights and freedoms. And when people say, "Let's reconsider the decisions made by the ECHR", I don't think it's right. If each country has its own interpretation of human rights, those rights will be eroded.

On the other hand, certain decisions by the ECHR may erode our understanding of human rights. For example, the European Court could make decisions regarding homosexuals, same-sex marriage, and euthanasia. That would be outside the spirit of our Constitution.

There is a problem here. But I think Torshin's initiative isn't about trying to defend against such extremely controversial decisions. Rather it's tied to a desire to affirm our independence. We know for ourselves what we have that's good and bad. Well, if that's the case, then we need to leave the European Convention and European organisations.

- Could that happen?

- I'm confident that it won't. We mustn't forget that this isn't just about shame or prestige for the state, but about having the rights of our citizens be more protected against abuse of government power. What's to hide? The abuse of power is huge–by the police and the bureaucrats. Closing the road to the ECHR diminishes opportunities to protect and preserve the rights of Russian citizens.

- Can somebody appeal to the Constitutional Court of the Russian Federation to examine the compatibility of individual norms from international agreements that Russia has signed with the Constitution?

- No, neither the Constitution nor the law "On the Constitutional Court" provides for that. The matter can be considered only before the agreements have been ratified.

- Might Torshin's initiative affect international agreements related to business?

- Absolutely, it could. And that might cause irreparable harm to our country's reputation and the investment climate. And bring direct damages.

- And might it apply to the interaction between companies?

- No. That is regulated by civil law, not public law.

This interview was conducted by Andrei Susarov,
Tax columnist for the Moscow news
Exclusively for Russian Survey RS