Russia v. European Court of Human Rights: fight for sovereignty
In December 2015, Russia adopted a law that gave the Constitutional Court of Russia a right to decide if a decision of the European Court of Human Rights is in conformity with the Russian Constitution and, thus, a right to forbid the enforcement of European Court of Human Rights decisions in Russia.
Most probably the main reason for the enforcement of the law is the decision made by the European Court of Human Rights in the Yukos case, where the Court ruled that Russia has an obligation to pay 1,8 billion euros as compensation to the Yukos shareholders.
The Constitutional Court
The Constitutional Court of the Russian Federation is composed of 18 judges, the main task of whom is to control the constitutionality of legal acts. Unlike Russia or e.g. Latvia and Lithuania, Estonia does not have an independent constitutional court. In Estonia, the Constitutional Review Chamber of the Supreme Court reviews the constitutionality of acts.
Details of the Change
Already in June 2015, the Constitutional Court of Russia made a similar decision as now stated in the law. The Constitutional Court of Russia ruled that in certain exceptional cases Russia has a right to deny its obligations when it is the only possibility to avoid violation of the ground principles and norms of the Russian Constitution. The only explanation the Constitutional Court gave was that even if Russia participates in the activities of the international organisations, yet it does not mean that Russia has given up its sovereignty.
The law passed in December envisages the new sphere of competence that got a lot of international attention, mainly in the section 104.3 of the law that stipulates the right of the Constitutional Court to control whether Russia can enforce decisions of international human rights organisations.
Article 46 of the European Convention on Human Rights sets an obligation to the Contracting Parties to undertake to abide by the final judgment of the Court in any case to which they are parties. So far, the Constitutional Court of Russia has not used its new competence, so one cannot say with full confidence that there is a violation of international law. There is a position under international law that there is no violation of international law as long as the law has not been enforced i.e. in the present case, when the Constitutional Court would forbid an enforcement of a concrete European Court of Justice decision in Russia. Thus, one could say that just passing a law does not automatically mean a violation of international law.
At the same time, the new law is questionable in the light of the Russian domestic law i.e. the Russian Constitution, article 15(4). The latter states that if an international treaty or agreement of the Russian Federation fixes other rules than those envisaged by law, the rules of the international agreement shall be applied. This raises a question how it is possible that a simple domestic law gives a state body a right to decide that international agreement should not be followed, when the Constitution clearly states that an international agreement shall be applied when there is a contradiction with a law.
Importance of the Change
There has been a big discussion about the new law passed in Russia and many have said how problematic it is for the human rights in general. Protest and comforting the European Court of Human Rights is not new. E.g. many UK politicians and lawyers have criticised the decisions of European Court of Human Rights. Moreover, the UK has not ruled out leaving European Convention on Human Right. However, none of the members of the Council of Europe have accepted a similar law, which would clearly infringe the European Convention on Human Rights if enforced. The latter makes the Russian law so buzzworthy. All in all, the time will tell the true international meaning of the law.