National Sovereignty or International Law? The Russian Constitution Has the Last Word

On January 15, 2020, President Putin, in his Address to the Federal Assembly of Russia, called for amending the Russian Constitution to establish its precedence over supranational bodies, meaning, primarily, the European Court of Human Rights (ECtHR). Putin later explained his proposal by saying that the ECtHR “sometimes issues blatantly illegal verdicts.” Consequently, Article 79 of the Constitution of the Russian Federation has been amended to read as follows: “Decisions by inter-state bodies adopted on the basis of the Russian Federation’s international treaties cannot be enforced within Russia if they are interpreted contrary to the Russian Constitution.” Interestingly, this was not a new idea: Russian legal experts who for many years have been suggesting such an amendment to the Constitution had referred to German precedent, in particular, to the position of the German Federal Constitutional Court (BVerfG) in the Görgülü case. Hotly debated for many years by the German legal community and media, the case raised the issue of the “limits of compliance” with respect to the rulings of a supranational judicial body charged with protecting human rights. ¹See Karen Klein, Der Fall Görgülü. Ein Sorgerechtsstreit schreibt Rechtsgeschichte (Röhrig Universitätsverlag, 2020).

The Political and Economic Background

Every undertaking of this magnitude has political, economic, and legal dimensions.

As for the political aspect, the Russian authorities had repeatedly expressed dissatisfaction with the country’s membership of the Council of Europe and the ECtHR’s practice of dealing with complaints by Russian nationals. The differences between Russia and the Council of Europe reached a climax in 2014, when the rights of the Russian delegation to the Parliamentary Assembly of the Council of Europe (PACE) were restricted. The question of Russia’s withdrawal from the organization was subsequently discussed by high-ranking Russian officials on several occasions. ²“Matienko zaiavila o zhelanii Rossii vyiti iz Soveta Evropy,” RIA Novosti, 20 September 2018; “Lavrov zaiavil o gotovnosti Rossii vyiti iz Soveta Evropy,” Vedomosti, 16 October 2018. Formally, the conflict was settled in 2019, but can it be considered completely settled? From time to time, the Russian side has voiced grave concerns that the ECtHR’s rulings are politicized, violate the country’s sovereignty, and fail to take national specifics into account. ³“V Gosdume nazvali politizirovannym reshenie ESPCh po delu ‘Kirovlesa,’” RIA Novosti, 23 February 2016; “Strasburgskii sud obvinili v podryve konstitutsionnogo stroia Rossii,” Vedomosti, 7 February 2017; Il’ia Muromskii, “V Gosdume nazvali politizirovannym reshenie ESPCh po delu ‘Ushakov protiv RF,’” RIA FAN, 18 June 2019; Denis Sukhov, “Volodin: Resheniia ESPCh zachastuiu nosiat politizirovannyi kharakter,” Komsomol’skaia Pravda, 14 April 2017. So, why should they be implemented?

“The ECtHR’s rulings are often politicised.”

Vyacheslav Volodin, chair, Russian State Duma

“We have never transferred such a part of our sovereignty, the sovereignty of Russia, that would allow any international or foreign court to make rulings altering our national legislation.”

Dmitry Medvedev, former Russian prime minister, and former Russian president

“An internal decision to withdraw from the Council of Europe has been ripening in Russia.”

Valentina Matviyenko, chair, Russian Federation Council

From an economic viewpoint, the Russian treasury does not always have sufficient funds, given the currency exchange rate, to compensate plaintiffs who have won their cases at the ECtHR. The most significant example is 2014, when Russia had to pay out almost 2 billion euros in compensation in a single case. So far, none of the annual state budgets has included an amount for payments under this ruling; in theory, the amount accounted for almost 1% of all planned budget expenditures, which means it has had a significant impact on the national economy. Therefore, many observers were not surprised when Russian lawmakers tried to fix a loophole in the Constitution permitting Russia not to recognise ECtHR rulings. But let us look at the problem from the legal standpoint.

How It All Started

Helmut Philipp Aust, a professor of law at Freie Universität Berlin, says, “It seems that the planned amendments are symbolic and only reinforce what the Russian Constitutional Court has repeatedly stated: that the [Russian] Constitution can supersede international legal obligations. We can regard this in different ways. I am concerned that it could serve as a signal that international legal obligations will now be taken less seriously by Russia than before.” ⁴Personal interview with Univ.-Prof. Dr. Helmut Philipp Aust held at Freie Universität Berlin, 9 March 2020.

Indeed, the idea of establishing the Russian constitution’s precedence over international law is nothing new. The prerequisites for this step had been gelling in the country’s legal reality for several decades. The dialogue between the ECtHR and the Russian Constitutional Court, which at some point turned into a dispute, had generated discussions about the “limits of compliance” with international obligations as early as 2010. In 2015, the head of the Russian Federal Investigative Committee suggested abandoning international law’s precedence as explicitly stipulated in the Constitution. ⁵“Iskliuchitel’noe pravo. Aleksandr Bastrykin predlagaet iskliuchit’ iz Konstitutsii RF normy o prioritete mezhdunarodnogo prava,” Rossiiskaia gazeta, 23 July 2015.

The first serious clash between an ECtHR ruling and Russian federal law occurred in the so-called Markin case in 2013. The plaintiff lost the case in the Constitutional Court, but won in the ECtHR, causing a huge public outcry. ⁶For more about the Markin case, see “KS RF postavil svoi resheniia vyshe mezhdunarodnykh,” Rossiiskaia gazeta, 7 December 2013. The chair of the Constitutional Court wrote that ECtHR’s ruling was “beyond its competence, infringing on the state’s legislative rights, as well as its autonomy.” The case was reheard by the Constitutional Court, and this time the court indicated that while it would take into account the international judicial body’s position, if there were discrepancies, the Russian court would still have the last word. ⁷“Decision of the Constitutional Court of the Russian Federation No. 27-P, dated 6 December 2013, ‘On the matter of reviewing the constitutionality of provisions of Article 11 and Paragraphs 3 and 4 of Part 4 of Article 392 of the Civil Procedure Code of the Russian Federation in connection with a request from the Presidium of the Leningrad District Military Court,’” Rossiiskaia gazeta, 18 December 2013. Unless otherwise noted, this and all further references to Russian Constitutional Court rulings and Russian laws have been translated for the sake of readers, although the texts cited are in Russian.

Of course, this dispute did not go unnoticed. In 2014 and 2015, Russian legislators endowed the Constitutional Court with the authority to review the ECtHR’s rulings. ⁸Federal Constitutional Law No. 9-FKZ, dated 4 June 2014, “On amendments to the Federal Constitutional Law ‘On the Constitutional Court of the Russian Federation”; and 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.’” In 2015, the court itself ruled that, in certain cases, Russia could deviate from fulfilling its obligations to execute the decisions of supranational judicial bodies. ⁹“Decision of the Constitutional Court of the Russian Federation No. 21-P, dated 14 July 2015, ‘On the matter of reviewing the constitutionality of the provisions of Article 1 of the Federal Law “On ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms [i.e., the European Convention on Human Rights] and the protocols thereto”; Paragraphs 1 and 2 of Article 32 of the Federal Law “On the Russian Federation’s international treaties”; Parts 1 and 4 of Article 11, and Paragraph 4 of Part 4 of Article 392 of the Civil Procedures Code of the Russian Federation; Parts 1 and 4 of Article 13, and Paragraph 4 of Part 3 of Article 311 of the Arbitration Procedure Code of the Russian Federation; Parts 1 and 4 of Article 15, and Item 4 of Part 1 of Article 350 of Administrative Procedure Code of the Russian Federation; and Item 2 of Part 4 of Article 413 of the Criminal Procedure Code of the Russian Federation in connection with the request from a group of deputies in the State Duma,’” Rossiiskaia gazeta, 27 July 2015.

Generally, we cannot say that Russia has actively used this mechanism or that the Russian Constitutional Court has constantly deemed the ECtHR’s rulings unenforceable due to inconsistencies with the Constitution. During the entire time this has been a possibility, only two decisions were made on the impossibility or partial impossibility of implementing ECtHR rulings in Russia—in the Yukos case ¹⁰“Decision of the Constitutional Court of the Russian Federation No. 1-P, dated 19 January 2017, ‘On the matter of resolving the issue of the possibility of enforcing, in accordance with the Constitution of the Russian Federation, the decision of the European Court of Human Rights of 31 July 2014 in the case of JSC Yukos Oil Company v. Russia in connection with the request of the Ministry of Justice of the Russian Federation,” Rossiiskaia gazeta, 3 February 2017. and the case of Anchugov and Gladkov, ¹¹“Decision of the Constitutional Court of the Russian Federation No. 12-P, dated 19 April 2016, ‘On the matter of resolving the issue of the possibility of enforcing, in accordance with the Constitution of the Russian Federation, the decision of the European Court of Human Rights of 4 July 2013 in the case of Anchugov and Gladkov v. Russia in connection with the request of the Ministry of Justice of the Russian Federation,” Rossiiskaia gazeta, 5 March 2016. moreover, the latter was nevertheless executed by the Russian government in 2019. At the same time, German legal precedents are of interest, since they were cited by the Russian Constitutional Court in its substantiation of the cases in which Russia could fail to enforce ECtHR rulings. ¹²“Decision of the Constitutional Court of the Russian Federation No. 21-P, dated 14 July 2015.” See Footnote 8 for full citation. Let us take a closer look at these precedents.

Did Karlsruhe Clip Strasbourg’s Wings? How the Görgülü Case Was Cited in Russia

In the early 2000s, the legal community was stirred up by the Görgülü case, which would became a kind of benchmark for many courts around the world. Mr. Görgülü, a Turkish national and the father of a child born to a German national, found out about the child’s existence only after it had been placed in a foster family after the mother gave it up for adoption. The plaintiff initially failed to uphold his right to raise his son. Having failed in the German courts, including the BVerfG, Görgülü appealed to the ECtHR, which ruled that the father’s opinion should be considered when determining the fate of children. Further, since the German courts, contrary to the decision of the ECtHR, again refused to recognize the plaintiff’s right to communicate with his son, Mr. Görgülü again appealed to the BVerfG. The court issued a decision, ¹³BVerfG, 2. Senat, Beschluss V. 14.10.2004 – 148/04; see “Headnotes to the Order of the Second Senate of 14 October 2004 – 2 BvR 1481/04” for the text of the decision in English. which Russian legal experts would go on to cite, e.g., “What does the German Federal Constitutional Court do? The court says, we will consider the decision of the European Court, but we will act in accordance with our own constitution.” ¹⁴Transcript of a round table devoted to the 20th anniversary of establishment of the Constitutional Court of the Russian Federation (Moscow, Russian Academy of Justice, 15 December 2010), Part I, Zhurnal konstitutsionnogo pravosudiia 1 (19) (2011); Part II, Zhurnal konstitutsionnogo pravosudiia 2 (20) 2011 (in Russian).

German lawyers, knowing that many countries, including Russia, have taken this decision as a model, have urged that it be treated with great caution.

Professor Aust says, “In Görgülü, the BVerfG did hint at limitations to the openness of the Basic Law (the Constitution) vis-à-vis the Convention [on Human Rights]. At the same time, the BVerfG has never enforced these restrictions. A number of rulings have been made, starting with Görgülü and ending with a ban on strikes for civil servants, that were aimed at provoking conflict with the ECtHR, but the BVerfG has always stressed the need to respect international legal obligations and take the Convention into account. I am not a big fan of this practice on the part of the BVerfG because not only Russia, but also other countries have used this ruling as a template, in which, according to them, the German Constitutional Court said that it was not necessary to comply with the Convention. But this is not entirely true: the BVerfG gave us no reason to think that national sovereignty had the last word. Perhaps, when you see how this judicial practice can be interpreted by other governments without taking the context into account, you should not highlight those aspects of rulings.” ¹⁵Personal interview with Univ.-Prof. Dr. Helmut Philipp Aust held at Freie Universität Berlin on 9 March 2020.

Aust underscores that in Germany (as of March 2020) there had been no cases of non-enforcement of ECtHR decisions that in their interpretation contradicted Germany’s Basic Law. Moreover, in other cases where the relationship between national and international law was at issue, the BVerfG also clearly emphasized the paramount importance of human rights treaties.

How was the Görgülü case resolved? Although the BVerfG emphasized the principle of state sovereignty in theory, it pointed out that the task of national courts was to carefully implement the decisions of the ECHR in the relevant area of law, not to ignore them. In fact, the German Constitutional Court resolved the disputed case in keeping with the ECtHR’s position. The case was reviewed, and the ECtHR’s decision was implemented, as the Committee of Ministers of the Council of Europe noted in 2009. The Bundestag, analysing the legal consequences of this case, explained that if Germany was a party to proceedings in which a violation of the Convention was found, then under international law it was obliged to correct the violation. This obligation applied to all holders of sovereign power, including legislative power. ¹⁶Ausarbeitung WD 3-3000-162/16. Bedeutung der Europäischen Konvention für Menschenrechte und der Entscheidungen des Europäischen Gerichtshofs für Menschenrechte für die deutsche Gesetzgebung, 22.06.2016.

Statistics show that Germany is practically a model when it comes to implementing ECtHR decisions. This is confirmed by the fact that the number of complaints filed at the ECtHR against Germany and, especially, the complaints accepted by the court for review, is quite small: so, whereas 12,782 complaints were filed against Russia in 2019, 584 complaints were filed against Germany. Only 0.07 complaints per every 10,000 people were filed in Germany, compared to 0.05 in the UK, and 0.89 in Russia. During 2019, eight decisions were made on complaints filed by applicants from Germany, and none of them found that the country had violated the European Convention on Human Rights. In comparison, 198 decisions were made on complaints filed by applicants from Russia, and at least one violation of the Convention by Russia was found in 186 cases. ¹⁷Annual Report 2019 of the European Court of Human Rights, Council of Europe, p. 133 In contrast to Russia, a small number of decisions are issued against Germany, revealing longstanding structural problems, which also indicates that the country has better mechanisms for implementing the international court’s decisions in compliance with the national legal system.

What Final Conclusions Can We Make in This Regard?

In the wake of the Russian Constitution’s amendment, can we say that Russia will cease enforcing ECtHR decisions and will exit, for example, the PACE? Probably not. The mechanism allowing Russia to deviate from its obligations in implementing the international court’s decisions has existed since 2015, but so far only two rulings on the impossibility or partial impossibility of implementing the European court’s decisions have been issued within its framework; moreover, one of these ECtHR decisions was eventually executed. Despite the depressing statistics, we cannot generally speak of Russia’s fundamental unwillingness to accept the European system of protecting human rights. In at least a quarter of its decisions, the Russia Constitutional Court has cited the European Convention on Human Rights and the decisions of the ECtHR. Thus, with reference to Russia’s international obligations, the use of the death penalty was declared unacceptable. Since 2010, a law has been in force that allows Russians to receive compensation in court for unreasonably lengthy legal proceedings. (The law was adopted after numerous complaints to Strasbourg about red tape in the administration of justice.) Significant amendments to the criminal procedure code and other regulations have also been adopted to implement the Strasbourg court’s decisions.

At the same time, the existence of a mechanism allowing Russia to refuse enforcing ECtHR decisions and references to the Görgülü case as justification for this refusal raise questions. Although the German and Russian legal systems have much in common, this does not mean that the decisions made by the national constitutional court of one country can be translated to the legal practice of the other country without taking into account all the circumstances. The German legal community argues that Russia, while citing German precedent, has taken advantage of a mechanism that has not actually been employed in Germany.

Generally speaking, it is worth mentioning that by signing the Convention, a state party voluntarily imposes on itself the obligation to comply with the Treaty and ensure the highest standard of protection of the rights of its citizens, and this standard should be international. Otherwise, the Convention could lose its meaning, and the ECtHR would make its rulings in particular cases at the behest of national courts.

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