June 24, 2011
Though the Russian Federation had been attempting to block procedural reforms of the European Court of Human Rights (ECtHR) for nearly four years, Protocol No. 14 to the European Convention on Human Rights (ECHR) entered into force on 1 June 2010. Russia is very dissatisfied with the Strasbourg Court: currently as many as 42,100 complaints, constituting twenty-eight percent of all applications, are directed against the country; Moscow is losing many prominent cases, such as those related to the tragic events in Chechnya; and, in relation to the judgments which became final only in 2010, has to pay EUR 7.4 million to successful applicants. Even more frustrating cases are likely to conclude in the near future, such as the case of OAO Neftyanaya kompaniya YUKOS v. Russia (Application no. 14902/04), in which the requested material damages are as high as USD 98 billion (!).
Unable to derail the reform of the Court internationally, Russia has recently announced a new legislative initiative to undermine the Strasbourg verdicts domestically. The State Duma, the lower chamber of Russian Parliament, will consider at an emergency session a draft law giving the Russian Constitutional Court “a right to block” the enforcement of ECtHR judgments rendered against Russia. The bill was introduced by Aleksandr Torshin, member of the higher chamber of Russian Parliament.
The bill requires that ECtHR judgments should undergo review by the Constitutional Court for their compliance with the Russian Constitution. More precisely, if the Constitutional Court finds constitutional a domestic provision that was the legal basis for a contested judgment, there will exist no obligation to amend that provision or to revise the case at court proceedings. In such a situation, the only remaining obligation will be payment of the sums awarded by the Strasbourg Court.
The bill was spurred by the controversy surrounding the case of Konstantin Markin v. Russia (Application no. 30078/06), currently pending before the Grand Chamber. The case alleges sex discrimination resulting from Russian legislation limiting parental leave of military servicepersons only to female military personnel. The Strasbourg Court held as a chamber (judgment of 7 October 2010, with only the Russian judge dissenting) that different treatment amounted to a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to family life). Moreover, under Article 46, the Court ordered the Russian government to take measures to amend the relevant national legislation and put an end to discrimination against male military personnel.
At the domestic level, the Markin case also involved the Russian Constitutional Court, which dismissed Markin’s constitutional complaint, stating that granting an entitlement to parental leave to male military personnel would have a negative effect on the operational effectiveness of the national armed forces.
Following the chamber judgment in the Markin case, President of the Constitutional Court Valeriy Zorkin said that it was time the Russian authorities “delineated the limits of concessions” towards the Strasbourg Court and proclaimed “the supremacy of national jurisdiction”.
Zorkin’s statement was supported by Russian President Dmitry Medvedev, who stated that Russia had never transferred such part of its sovereignty to any international court or foreign national court that would have given such a court a right to render judgments amending Russian legislation. At the same time, Medvedev said that Russia did not intend to leave the Council of Europe and did not “resign from cooperation” with the Strasbourg Court, though it found “some judgments” politically motivated.
Paradoxically, Russia’s tough stance may find support in Europe’s oldest democracy, England. In February 2010, the House of Commons, British Parliament’s lower chamber, voted overwhelmingly against a national legislation amendment that would have given at least some groups of prisoners the right to vote. However, such an amendment was required by the ECtHR Grand Chamber judgment in the case of Hirst v. the United Kingdom (No. 2) (judg. of 6 October 2005, Application no. 74025/01).
The Russian (and British) defiance is a new test for the ECtHR and the Council of Europe. As the two latter institutions have already successfully opposed previous “testing attempts”, one may hope they will do the same again.
dr Ireneusz C. Kamiński
Expert of the Helsinki Foundation for Human Rights
Author : Europe of Human Rights