by Dr Anton Burkov, PhD (Cantab), LLM (Essex)
With the help of the Constitutional Court, Russia started the
reform of the ECHR by amending its civil procedure legislation
In the previous column of 26 February 2010 about the Russian legal system, we discussed the Russian Federation’s ratification of Protocol 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) and probable consequences of the ratification for the Russian legal system in the first place. We expressed the hope that Protocol 14 will mark the beginning, not only of the long awaited reform of the European Court of Human Rights, but also of a campaign aiming to improve the work of Russian courts and therefore provide fewer reasons for applications by individuals to the European Court of Human Rights. In fact, the first positive changes quickly took place.
On 26 February 2010, the Constitutional Court of the Russian Federation delivered its judgement N 4-P, which stated that the parliament has the obligation to introduce “a mechanism of execution of final judgements of the European Court of Human Rights which would allow to secure adequate redress for violations of rights determined by the European Court of Human Rights.”
In theory, the Constitution of the Russian Federation states the priority of norms of international law over national law. Nevertheless, until today, the opportunity to institute reconsideration of a national case due to a judgement of the European Court of Human Rights has only existed in regards to criminal and commercial cases. The Civil Procedure Code omitted this issue. Under the mentioned judgement of the Constitutional Court of the Russian Federation however, the legislator now has the obligation to amend the Civil Procedure Code so that it includes a mechanism of reconsideration of those cases, therefore giving a purpose to judgements by the European Court of Human Rights against Russia.
The Constitutional Court of the Russian Federation differs from other courts by its regular practice of implementation of the Convention in its judgements. The Constitutional Court of the Russian Federation is also unique due to the fact that it delivers very important judgements in accordance with the political will of the government. Let’s have a quick look at the history of the case-law of the Constitutional Court of the Russian Federation and the international relationship between the Council of Europe and the Russian Federation.
The Russian Constitutional Court has been contributing a great deal to the development of the principle of direct applicability of norms of international law. The first judgement delivered by the Constitutional Court of the Russian Federation in regards to the domestic application of international law was judgement No. 2-P of 4 February 1992. It stated inter alia that “[c]ourts are also obliged to evaluate a statute subject to application from the standpoint of its conformity to the principles and norms of international law.”
It might not be a coincidence that this judgement was delivered three months before the Government of the Russian Federation, in its letter of 6 May 1992 to the Secretary General of the Council of Europe, expressed the wish to be invited to become a member of the Council of Europe.
Afterwards, following the promulgation of the 1993 Constitution, the post-1993 Constitutional Court delivered a number of significant judgements giving an innovative interpretation to the new Constitution, particularly to its Article 46(3) on the right to appeal to international tribunals. In the judgement No. 4-P of 2 February 1996, the Constitutional Court recognized that decisions of international tribunals may trigger the reconsideration of cases decided in violation of norms of international law, which closely resembles the legal position expressed by the Constitutional Court in its latest judgement of 26 February 2010.
Once again, it might not be a coincidence that this legal principle was promulgated by the Constitutional Court just 26 days before the Russian Federation joined the Council of Europe.
Then, during the period following the accession of the Russian Federation to the Council of Europe on 28 February 1996 and before the ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms on 5 May 1998, the Constitutional Court of the Russian Federation was the first one to implement norms of the Convention. Over this period of time, there were three Constitutional Court’s judgements containing references to the Convention.
As far as the implementation of the Convention is concerned, by August 2004, there had been 54 judgements quoting the Convention out of 166 since Russia’s accession to the Council of Europe and out of 116 since the Convention came into force for the Russian Federation on 5 May 1998. During the same period, only 12 out of the mentioned 54 judgements of the Constitutional Court of the Russian Federation contained references to the case-law of the European Court of Human Rights. The other 42 judgements only referred to norms of the Convention, which can hardly be called “implementation” of the Convention given that: “States give effect to the Convention in their legal order, in the light of the case-law of the European Court of Human Rights” (Recommendation of the Committee of Ministers of the Council of Europe Rec(2004)5).
Since 2004, there has been some changes in the practice of implementation of the Convention by the Constitutional Court of the Russian Federation. For example, from August 2004 to January 2008, the Constitutional Court referred to the Convention more often than before 2004. At the same time the quality of implementation of the Convention improved.
We must not forget that Russia is not Moscow and the Constitutional Court of the Russian Federation is not the Russian Judicial System. Thereby, the question is whether courts of general jurisdiction will follow the positive practice of the Constitutional Court of the Russian Federation? For example, something kept the Supreme Court of the Russian Federation from shaping the practice of lower courts of general jurisdiction in such a way that, despite the lack of relevant provision in the Civil Procedure Code, all the cases, which became subject of consideration by the European Court of Human Rights, could be reconsidered by national courts.
In reality, the Supreme Court does not apply the Convention in any degree of regularity or competence. This is in spite of the fact that the Supreme Court provided lower courts with a special Regulation of 10 October 2003 on the application of international law. Likewise, the Supreme Court’s jurisprudence did not change significantly after the adoption of the 2003 Regulation. Although, the Supreme Court started to invoke the ECHR’s case-law after 2003, it does so very rarely, with many faults and selectivity. Often the Supreme Court ignores Convention’s issues raised by applicants or gives no substantial grounds for rejecting applicants’ references to the Convention. We’ve witnessed a situation where a national supreme court, having issued a special regulation that orders all lower courts to apply the Convention by taking into account ECHR’s case-law, does not follow the provisions of its own document in its own jurisprudence. (more details on implementation of the Convention by the Constitutional Court and the Supreme Court refer to A. Burkov “Convention for the Protection of Human Rights in Russian Courts». Moscow: Wolters Kluwer, 2010, http://sutyajnik.ru/bal/wolters).
Nevertheless, it appears that there are grounds to believe in change. In the first issue of its official 2010 bulletin, the Supreme Court of the Russian Federation published a judgement of the Presidium of the Supreme Court of the Russian Federation which demonstrates the application, by a Russian Supreme Court, of the Convention. This specific judgement of the highest instance of the Russian Federation stipulates that a violation of the Convention is an admissible ground for reopening of a criminal case.
In conclusion, it is of high importance to remember that we can lower a significant number of applications before the ECHR by accurately using the principles of the Convention for the Protection of Human Rights and Fundamental Freedoms in the light of the case-law of the European Court of Human Rights. This means the consideration through the prism of the Convention of the merits of every case pending before a court of first instance. Therefore, it is crucial that the Constitutional Court of the Russian Federation shows a good example in the conduct of such practice. The other components of the Russian judicial system shall then follow this positive example.
Weekly Column EU-Russia Centre
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