Wednesday, August 24, 2016


Russia

Russian Law On Rejecting Human Rights Courts Violates Constitution, Experts Say

The Council of Europe building in Strasbourg, France.
The Council of Europe building in Strasbourg, France.
By Carl Schreck

Critics of a new Russian law allowing it to reject decisions by international courts warn it could lead to Russia’s exit from the Council of Europe if it is used to skirt decisions by the European Court of Human Rights (ECHR), which has ruled against Moscow and ordered it to pay hefty damages in numerous cases.
 
But legal experts say there is another issue with the law, which President Vladimir Putin signed on December 14: It violates Russia’s own constitution.
 
“This law is amazing, because it doesn’t only violate the ECHR system principles, but also the [Russian] constitution,” Dimitry Kochenov, a Russian-born Dutch international law expert, told RFE/RL.
 
The Russian Constitution, in point 4 of Article 15, states: “If an international treaty of the Russian Federation stipulates other rules than those stipulated by [Russian] law, the rules of the international treaty shall apply."
 
But the new law, widely seen as a response to last year’s ECHR ruling ordering Moscow to pay nearly 2 billion euros ($2.2 billion) to shareholders of the former Russian oil major Yukos, gives Russia’s Constitutional Court the power to decide whether to enforce verdicts by interstate courts.
 
It says the Constitutional Court should be guided by the principle of "the supremacy and the supreme legal force of the Russian Constitution" when determining whether Russia should comply with judgments issued by such courts.
 
Kochenov, an EU constitutional law professor at the University of Groningen in the Netherlands, calls this language “absurd” because under Russia’s constitution, treaties signed by Russia -- such as the one governing the ECHR -- are the “supreme force in the land as well.”
 
“It’s unconstitutional, because it cites the defense of [Russia’s] constitution as an official objective, while at the same time what it reaches in terms of objective is precisely the violation of the constitution,” said Kochenov, currently a visiting research scholar at Princeton University.
 
‘Extremely Serious’
 
Russia ratified the European Convention of Human Rights in 1998, placing it under the jurisdiction of the ECHR, which many Russians see as their last chance of securing redress for abuses they have suffered at the hands of their government.
 
Ratification of the treaty is required of members of the Council of Europe, a 47-member body guided by the stated goal of promoting “human rights, democracy, and the rule of law.”
 
Thousands of Russians file cases with the Strasbourg court each year to seek compensation for a broad spectrum of alleged rights violations, including prison abuses, illegal surveillance, hazing in the military, and failure to sufficiently investigate deaths and disappearances.
 
Russia has chafed at many ECHR rulings ordering Moscow to pay damages to victims, typically relatively small sums -- for a government -- involving tens of thousands of euros.
 
But the legislative push to liberate Russia from its obligation to abide by international court decisions was launched in the wake of the Strasbourg court’s July 2014 ruling ordering Moscow to pay 1.9 billion euros in compensation for the dismantling and nationalization of Yukos, once led by Mikhail Khodorkovsky -- now a Kremlin opponent living in Europe.
 
While the new law does not single out the ECHR by name, it gives Russia’s Constitutional Court the power to “settle the issue of the possibility of executing a decision by an interstate body for the defense of human rights and freedoms.”
 
Addressing Constitutional Court judges in St. Petersburg on the same day he signed the law -- but a day before its enactment was announced -- Putin gave clear indication that the legislation was aimed at the Strasbourg court.
 
"The decision of Russian lawmakers about the Constitutional Court’s rights to make relevant decisions regarding the ECHR’s activities concerning Russia and Russian law is an extremely serious thing," he said.
 
Putin and other Russian officials have defended the legislation as consistent with other Council of Europe members’ decisions to ignore certain rulings by the Strasbourg court.
 
“When we randomly looked at practices in Western, European countries, it turned out that some ECHR rulings aren’t being enforced in Germany, in Italy, and very significantly in Britain,” pro-Kremlin federal lawmaker Aleksandr Tarnavsky said in an interview with RFE/RL’s Russian Service.
 
While other signatories to the European Convention on Human Rights have indeed failed to enforce rulings by the Strasbourg court, Russia is the first to empower its judiciary to formally refuse to do so, Kochenov told RFE/RL.
 
“Not a single other member of the human rights protection system has anything similar,” he said.
 
Bill Bowring, a professor of international human rights law at the University of London's Birkbeck College, said that new law contradicts not only the Russian Constitution, but also its 1998 law ratifying the European Convention on Human Rights and recent rulings by Russia’s Supreme Court and its Constitutional Court.
 
“I’m sure what they have in mind is the couple of billion euros that Russia has to pay as a result of losing in part the Yukos case,” said Bowring, who added that Russia currently “does implement almost all judgments” issued by the Strasbourg court.
 
Stay Or Go?
 
What, if any, consequences the new law will have on Russia’s status as a signatory to the European Convention on Human Rights remains unclear.
 
Veteran Russian rights activist Lyudmila Alekseyeva, in a radio interview this week, called Putin’s signing of the law “very sad” and said she fears it could “cost us our membership in the Council of Europe.”
 
Bowring, who has litigated on behalf of Russian plaintiffs before the Strasbourg court, said the potential fallout from the law is “all very hypothetical at the moment.”
 
The law allows Russia’s president and government to submit inquiries to the Constitutional Court on the possibility of enforcing verdicts by interstate courts like the ECHR.
 
“If such an application…is made to the Constitutional Court, they will have to decide what to do with it in the light of the existing law. And only then would the European court itself need to decide, you know, what is going on,” Bowring said.
 
Thorbjorn Jagland, secretary-general of the Council of Europe, issued a cautious statement after the December 15 announcement that Putin had signed the bill into law.
 
“It will be up to the Constitutional Court of Russia to ensure respect for the Convention if it is called upon to act under the new provisions. The Council of Europe will only be able to assess Russia’s compliance with its obligations when and if a specific case arises,” Jagland said.
 
Valery Zorkin, the head of the Russian Constitutional Court, suggested that the two sides were capable of working out differences with "dialogue."
 
"I don't see any problem there, I think that people are worrying for nothing," he told Putin on December 14.
 
Bowring says Russia “is showing no signs of wanting out” of the European Convention on Human Rights, “whereas in Britain there is quite a lively debate and quite a lot of people in the governing [Conservative] party who would like to get out.”
 
“It’s a voluntary thing, of course, and any country could denounce the treaty and leave,” he said. “But I think that would be a terrible thing for a country’s reputation. So, they wouldn’t want to do it, probably.” 

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