Russian Constitutional Court, Decision on merits (Postanovlenie) No. 21-P of 14 July 2015 [The Supremacy of the Constitution case]

[Extracts. Unofficial translation by Dr Maria Smirnova, The University of Manchester 

(Original text)

ECtHR – European Court of Human Rights

ECHR, the Convention – Convention on the Protection of Human Rights and Fundamental Freedoms

RCC – Russian Constitutional Court

Simplified citation of legislation, e.g. Article 413(2)(4) – for ‘the fourth part of paragraph 2 of Article 413’

For the sake of clarity and space the words ‘of the Russian Federation’ are omitted in the titles of legislative acts and official bodies.]

Russian Constitutional Court, Decision on merits (Postanovlenie) No. 21-P of 14 July 2015 [The Supremacy of the Constitution case]

‘On constitutionality of provisions of Article 1 of the Federal Law "On ratification of the Convention on Protection of Human Rights and Fundamental Freedoms and its Protocols", paragraphs 1 and 2 of Article 32 of the Federal Law "On International Treaties of the Russian Federation", the first and fourth parts of Article 11, paragraph 4 of the fourth paragraph of Article 392 of the Civil Procedure Code of the Russian Federation, parts 1 and 4 of Article 13, paragraph 4 of Part 3 of Article 311 of the Arbitration Procedure Code of the Russian Federation, parts 1 and 4 of Article 15, paragraph 4 of Part 1 of Article 350 of the Code of Administrative Procedure of the Russian Federation and paragraph 2 of the fourth paragraph of Article 413 of the Criminal Procedure Code of the Russian Federation in connection with the inquiry of a group of deputies of the State Duma’

…

The Constitutional Court of the Russian Federation hereby established the following.

1. [Current status of ECHR in the Russian legal system and the nature of the request] By virtue of the Federal Law of 30 March 1998 No 54-FZ "On ratification of the Convention on Protection of Human Rights and Fundamental Freedoms and its Protocols" the Russian Federation has ratified the Convention on the Protection of Human Rights and Fundamental Freedoms signed on 28 February 1996, and a number of Protocols thereto. Thus, in particular, as stated in Article 1 of the said Federal Law, the Russian Federation in accordance with Article 46 of the Convention recognizes ipso facto and without special agreement the jurisdiction of the ECtHR which is binding on the interpretation and application of the Convention and its Protocols in cases of alleged violation by the Russian Federation of the provisions of these treaties, in all cases when the alleged violation took place after its entry into force in respect to the Russian Federation.

According to Article 32 of the Federal Law of 15 July 1995 No 101- FZ "On International Treaties of the Russian Federation," the President of the Russian Federation and the Government of the Russian Federation shall take measures to ensure the implementation of international treaties of the Russian Federation (paragraph 1); federal executive bodies and authorized organizations, whose competence includes matters governed by the international treaties of the Russian Federation, shall ensure that the obligations of Russia as a party to such treaties are met and that the implementation of rights of Russia deriving from those treaties are executed, as well as monitor the implementation by the other parties of their obligations (paragraph 2).

In accordance with the Civil Procedure Code the court shall resolve civil cases on the basis of the Constitution, international treaties of the Russian Federation, federal laws and other normative legal acts of state authorities and normative legal acts of local self-government (Article 11); if an international treaty of the Russian Federation stipulates other rules than those stipulated by law, the court in the resolution of the civil case applies the international agreement (part four of Article 11); the concept of ‘new circumstances that can be regarded as a basis for review of judgments which have entered into force’ applies in particular to the establishment by ECtHR of violations of the Convention when the court's consideration of a particular case, in connection with the decision on which the applicant filed a claim to the ECtHR (Article 392(4)(4)).

Similar provisions on the use by the courts and arbitration courts of international treaties and on considering the violation by Russia of the provisions of the Convention established by the ECtHR as a basis for revision of the relevant judicial acts are enshrined in Article 13(1) and (4), Article 311(3)(4) of the Arbitration Procedure Code, Article 15(1) and (4), Article 350(1)(4) of the Administrative Litigation Code and Article 413(2)(4) of the Criminal Procedure Code.

According to the group of deputies of the State Duma that filed the claim to the Constitutional Court in accordance with Article 125(2)(a) of the Constitution, these legal provisions do not comply with the Constitution and its Articles 15(1), (2) and (4) and 79 because they in fact oblige Russia, its legislative, executive and judicial authorities to unconditionally execute rulings of ECtHR, even if they contradict the Constitution.

1.1. [The request is declared admissible]. According to Article 85 of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”, a request to the Constitutional Court to check the constitutionality of normative acts listed in Article 125(2)(a) is admissible if the applicant considers them unconstitutional and therefore not applicable.

Contested in the request are Article 15(1) and (4) and Article 350(1)(4) of the Administrative Litigation Code which enters into force on 15 September 2015, according to Article 1 of the Federal Law of March 8, 2015 No 22-FZ "On the introduction of the Administrative Litigation Code". However, these provisions are similar to other provisions of current procedural law, the constitutionality of which is also being questioned by the applicants.

Taking into account these circumstances and taking into account that a group of State Duma deputies appealed to the Constitutional Court in the manner of abstract normative control, ie, outside the context of a particular case, consideration of which has been completed in a court of general jurisdiction or an arbitration court, the request in this part can be found to meet the criteria of admissibility, as defined in Article 85 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation."

1.2. [The core question of the request: does existing regulation – that allegedly attaches unconditional mandatory nature to ECtHR judgments against Russia even in cases of conflict between an interpretation of the Convention by the ECtHR contained in such judgments and the Constitution – contradict the Constitution?] According to the legal position expressed by the Constitutional Court in the ruling of 2 July 2013 No 1055-O check of the constitutionality of a federal law on ratification of an international treaty including the procedure of adoption, as a general rule, can only be carried out before the international treaty enters into force (which usually does not coincide with the moment of completion of the adoption of the federal law on ratification of the international treaty); if ruled otherwise, the situation would not only be contrary to the generally recognized principle of international law pacta sunt servanda and would question the compliance of the Russian Federation with voluntarily assumed international obligations, including those deriving from the Vienna Convention on the Law of Treaties, but would also violate the provisions of Article 125 (2)(g) of the Constitution in connection with a clarification in Article 3(1)(d) of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation," which authorizes the Constitutional Court to adjudicate on the constitutionality of those international treaties of the Russian Federation that have not entered into force.

As follows from the materials of the present case, the applicants neither challenge the constitutionality of any of the provisions of the Convention as a multilateral international treaty of the Russian Federation, nor question the provisions of the Federal Law "On ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols" as a normative basis for inclusion of ECHR in the legal system of Russia according to Article 15(4) of the Constitution.

However, the named federal law is to be considered in indissoluble unity with other procedural norms challenged in the request as well as with the provisions of the Federal Law "On International Treaties of the Russian Federation" which all together form the legal basis for the execution of ECtHR rulings against Russia on the basis of the Convention in its interpretation by the ECtHR in a particular case.

Deputies of the State Duma associate the alleged uncertainty as to whether these laws contradict the Constitution with the unconditional mandatory nature of ECtHR judgments against Russia imposed by these provisions – in cases of collision between an interpretation of the Convention by the ECtHR contained in such judgments and the Constitution.

1.3. [The subject of the present case] Thus, based on the requirements of Articles 74, 84 and 85 of the Federal Constitutional Law "On Constitutional Court of the Russian Federation" and related Article 1 of the Federal Law "On Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols" [the contested norms] are subject to examination by the Constitutional Court in the present case to the extent that they regulate whether execution of an ECtHR judgment imposing obligations that are inconsistent with the Constitution is compulsory.

2. [ECHR was ratified with an aim to implement constitutional guarantees of the right to refer cases of human rights violations to international bodies.] According to the Constitution everyone has the right, in accordance with international treaties of the Russian Federation, to refer to international bodies for protection of human rights and freedoms provided that all available domestic remedies have been exhausted (Article 46(3)). In correlation with this provision of the Constitution, Article 15(4) establishes that international treaties of the Russian Federation are an integral part of its legal system, while Article 79 allows for participation of the Russian Federation in interstate associations and for transferal to such associations of part of her power in accordance with international treaties, if such transferal does not entail limitation of rights and freedoms of man and citizen and does not contradict the foundations of the constitutional system of the Russian Federation.

With an aim to implement the aforementioned constitutional provisions the Russian Federation has ratified the ECHR and thereby recognized it as a part of its legal system, while the jurisdiction of the ECtHR, by virtue of Article 46 of the Convention, ipso facto and without special agreement was recognized as binding in respect to interpretation and application of the Convention and its Protocols in cases of alleged violation of the Convention by the Russian Federation (in accordance with paragraph 1 of Article 46 of the Convention as amended by the Protocol of 13 May 2004 No 14 the High Contracting Parties undertake to abide by the final judgment of the Court, to which they are parties).

2.1. [Execution of ECtHR judgments is a necessary guarantee of the right to judicial protection of human rights] Within the meaning of Articles 1(1), 2, 15(2), 17(2), 18, 45(1), 46(1) and (2), 52, 53, 55 and 118 of the Constitution of the Russian Federation protection of human rights and freedoms including judicial protection, as a right guaranteed to everyone and a responsibility of the state, belonging to basic inalienable human rights and freedoms and at the same time acting as a guarantee of all other rights and freedoms, cannot be considered effective if a judicial act or an act of other authorized body issued to redress a violation is not executed. Based on this, as pointed out by the Constitutional Court, a final judgment of ECtHR adopted as a result of consideration of a complaint of a person who claims to be a victim of a violation by the Russian Federation of his rights recognized by the Convention and Protocols thereto, is to be executed in part that confirms the violation in respect of the person and awards just satisfaction, if necessary (RCC Decision No 27-P of 6 December 2013).

Accordingly, since a judgment of ECtHR implies adoption by the respondent state of specific measures for its execution, the person in respect to whom a violation of the Convention has been found, in any case, should be able to apply to the competent court of the Russian Federation with an application for judicial review of the judicial act which served the reason for the complaint to ECtHR, and to be sure that such application will be considered; in turn, the decision of the competent Russian court on the question of a possible revision of the relevant judicial act - taking into account the need for concrete individual measures to restore the violated rights of the applicant - should be based on a thorough and complete examination of his arguments and the circumstances of the case (RCC Decision No 4-P of 26 February 2010, and No 27-P of 6 December 2013).

As for the position of the ECtHR itself on the implementation of its judgments, ECtHR holds that specific means by which the national legal system will execute an obligation imposed on the respondent state in accordance with Article 46 of the Convention, as a general rule, shall be chosen by the respondent State itself, provided that these means will be compatible with the findings of the relevant decision of ECtHR; it is up to the national authorities, namely the judiciary, to resolve the issues of interpretation and application of domestic law; such discretion as to the manner of execution of the ECtHR judgments reflects the freedom of choice inherent to the obligation of States parties under article 1 of the Convention to ensure Convention rights and freedoms (Scozzari & Giunta v Italy judgment of 13 July 2000; Jahn and others v Germany judgment of 30 June 2005; Scordino v Italy judgment of 29 March 2006; Musayev v Russia judgment of 3 July 2008; Ruslan Umarov v Russia judgment of 3 July 2008 and others.)

According to article 35 of the Convention, the ECtHR holds a claim admissible only in case of exhaustion of all domestic remedies. Thus, protection of the rights and freedoms defined in Section I of the Convention is executed by ECtHR on the basis of the principle of subsidiarity, which, as has been pointed out by the Court itself, implies an obligation of States that ratified the Convention to ensure protection of Convention rights to everyone, primarily in their own domestic legal order and in relation to the bodies of the national judicial system (Mostacciuolo v Italy judgment of 29 March 2006 (No 2) and Sahnovsky v Russia judgment of 2 November 2010).

By virtue of Articles 46(1) and (3), 120(1), 125 and 126 of the Constitution such role of ECtHR is essentially complementary to the national mechanism of judicial protection of human rights, such role of the Court in the Russian Federation is determined by the need to guarantee judicial protection in the first place by all Russian courts, including the Supreme Court (which is the highest judicial body in civil law cases, economic disputes, criminal and administrative law cases, it also protects the rights and freedoms of citizens, inter alia through consideration of cassation and supervision complaints on judicial acts that have entered into force), and the Constitutional Court (which is the highest judicial body of constitutional control and examines cases of citizens' complaints on violation of constitutional rights and freedoms by legislation applied by national courts in a particular case).

2.2. [Although ECtHR judgments are considered an integral part of the Russian legal system, the Constitution has a priority. However, any derogation from the obligation to execute ECtHR judgments must remain an exception] Since the Convention, being an international treaty of the Russian Federation, is an integral part of its legal system, the state is obliged to execute those ECtHR judgments issued under provisions of the Convention that have been issued on the basis of complaints against Russia in relation to parties to the case and within a specific subject matter of the dispute. Thus, realization of both individual and general measures envisaged by an ECtHR ruling must be carried out in accordance with Article 15(4) of the Constitution and on the basis of recognition of such decision as a part of the Russian legal system.

However, the Constitution in its Articles 4(1), 15(1) and 79 enshrines the sovereignty of Russia, the supremacy and the highest legal force of the Constitution and impossibility of implementation in the legal system of international treaties participation in which may result in either restrictions on rights and freedoms of man and citizen or in violation of constitutional provisions by encroachment on the foundations of the constitutional system of the Russian Federation. Thus, neither the Convention as an international treaty of the Russian Federation, nor ECtHR judgments based on the Convention and containing an assessment of national legislation or indicating the need to change any of its provisions have a capacity to cancel the priority of the Constitution in the Russian legal system. Therefore, these judgments are subject to implementation within the framework of this system only conditional to recognition of the highest legal force of the Constitution.

Russia, as a democratic state ruled by law and a member of the international community where universally recognized principles and norms of international law are in force, concludes international agreements and participates in international associations delegating certain powers to the latter (the Preamble, Articles 1(1), 15(4), 17(1), 79 of the Constitution). This, however, does not mean repudiation by Russia of its sovereignty [1] related to the basics of the constitutional order and implying supremacy, independence and autonomy of the government and comprehensiveness of legislative, executive and judicial power of the state over all of its territory and its independence in international relations, and [2] being a necessary qualitative characteristic of the Russian Federation defining its constitutional and legal status (RCC Decision No 10-P of 7 June 2000).

Based on the above, in a situation when the actual content of an ECtHR judgment – including the Court’s instruction to the respondent State based on the provisions of the Convention interpreted by the Court in the framework of a particular case – unlawfully from constitutional and legal point of view allude to principles and norms of the Constitution, Russia may, as a matter of exception, depart from the her obligations when such derogation is the only way to avoid the violation of fundamental principles and norms of the Constitution.

3. [Applicability of the Vienna Convention on the Law of Treaties and dynamic interpretation of the ECHR that gradually changes its meaning so that its interpretation may at some point become contradictory to the Constitution, although the original norm of the treaty is not] In resolving the constitutional and legal conflicts that may arise in connection with the interpretation of ECHR as an international treaty of the Russian Federation, it is necessary to take into account the Vienna Convention on the Law of Treaties, to which Russia is a party.

Enshrined in its Article 26 is the fundamental principle of international law pacta sunt servanda (every treaty in force is binding upon the parties and must be performed by them in good faith), the Vienna Convention also establishes general rules of interpretation of treaties, whereby any treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purposes (article 1, paragraph 31).

Thus, an international agreement is binding upon its parties in the meaning that may be clarified by application of the aforementioned rule of interpretation. From this point of view, if ECtHR in the process of considering a case interprets certain provisions of the Convention in other than its normal meaning or contrary to the object and purposes of the Convention, the State in respect of which the judgment is issued has the right to refuse to follow it as exceeding the obligations voluntarily assumed by the State by virtue of ratification of the Convention. Accordingly, such judgment of the Court cannot be considered binding if, as a result of interpretation of specific provisions of the Convention on which such judgment is based, carried out in violation of the general rules of treaty interpretation, the meaning of the said provision is in variation with peremptory norms of general international law (jus cogens), which invariably include the principle of sovereign equality and respect for the rights inherent in sovereignty, as well as the principle of non-interference in the internal affairs of States.

In addition, as indicated in paragraph 1 of Article 46 of the Vienna Convention, the state has the right to block the action against it of certain provisions of an international treaty with a reference to the fact that the consent to be bound by this treaty was expressed by the state in breach of a provision of domestic law regarding competence to conclude treaties and if the violation was manifest and concerned domestic norms of particular importance. In the Russian Federation such norms would include, in the first place, the provisions of Chapters 1 and 2 of the Constitution which cannot be altered by constitutional amendment, but only through adoption of a new Constitution (Article 135 of the Constitution).

Russia, within the meaning of Articles 15(1) and (4), 79 and 125(6) of the Constitution, is not entitled to enter into international agreements that are at variance with the Constitution. Rules of an international treaty, if they violate the constitutional provisions that have undoubtedly very important value for the Russian Federation, cannot and should not be applied in its legal system based on the supremacy of the Constitution of the Russian Federation. Therefore, it is the responsibility of public authorities in implementing international agreements that presume correlation of Russian legislation with its obligations under international treaties, to recognize, observe and protect rights and freedoms of man and citizen as they are defined by the Constitution, and to avoid violations of the constitutional order.

This does not however exclude the possibility of a situation when an international treaty at the moment of accession to it was consistent with the Constitution both in its literal sense, and in the meaning attributed to it by application of the interstate body authorized by the international treaty, however, subsequently, by means of interpretation only (especially considering the high enough level of abstraction of  norms, inherent, in particular to the Convention) was substantively fleshed out in a way that came into conflict with the Constitution, primarily relating to its provisions on the rights and freedoms of man and citizen and on the basics of the constitutional system including national sovereignty and the supreme legal force of the Constitution.

In turn, the unconditional implementation by Russia of decisions of such an interstate body made on the basis of an international treaty interpreted in a way that does not agree with the Constitution, could lead to a violation of its provisions, which in this case (considering the presumption of awareness of the authorities specially empowered by an international treaty to consider issues relating to the protection of the rights and freedoms of citizens of the contents of current Constitutions of the states - participants to the international agreement) is certainly clear and objectively evident to any subject of international law, acting in this matter in good faith and in accordance with the usual practice (paragraph 2 of Article 46 of the Vienna Convention on the Law of Treaties).

However, since the expression by the Russian Federation of agreement to be bound by an international treaty in violation of a provision of the Constitution can be revealed only after the authorized intergovernmental body issues a decision based on a specific interpretation of the rules of the treaty in the sense leading to its inconsistency with the relevant provision of the Constitution, in such cases, the question is not about the validity or invalidity for Russia of the international treaty as a whole, but only about the impossibility of compliance with the commitment to apply its standards in the interpretation given to it by the authorized intergovernmental body in connection with a particular case.

In the context of the above provisions of the Vienna Convention on the Law of Treaties this means that the decision of an interstate authorized body including a ECtHR judgment cannot be fulfilled by the Russian Federation in part of the imposed individual and general measures if the interpretation of the provisions of the international treaty on which the decision is based violates the relevant provisions of the Constitution.

4. [Although the Constitution and the Convention share the same basic values, Russia is bound by the obligation to ensure the supremacy of the Constitution and therefore in the event of any conflict to give priority to the requirements of the Constitution and not literally follow the ECtHR decision if its implementation is contrary to the constitutional values. Examples from other European countries] Russia has acceded to ECHR seeking to ensure the implementation of additional safeguards to the fundamental provision on human rights and freedoms as having the supreme value in a democratic state based on the rule of law, as enshrined in Article 2 of the Constitution. Due to the fact that Russia's participation in the Convention which the ECtHR aims to ensure compliance with is conditioned on the objective of proper implementation of this constitutional provision, the harmonization of Russian law with the conventional law as it is interpreted and applied by ECtHR in the process of consideration of specific cases is admissible only in so far as it does not cause conflicts with the Constitution.

Being bound to comply with the requirements of an international treaty that has entered into force, such as ECHR, the Russian Federation, nevertheless, is obliged to provide, within her legal system, the supremacy of the Constitution. This obligation requires, in the event of any conflicts in this area – despite the fact that the Constitution and the Convention are based on the same basic values ​​of human rights and freedoms of man and citizen – to give priority to the requirements of the Constitution and thereby not literally follow the ECtHR decision if its implementation is contrary to the constitutional values.

Accordingly, the Constitutional Court cannot support an interpretation of the Convention given by ECtHR if the Constitution (including its interpretation by the Constitutional Court) as a legal act which has the highest legal force in the Russian legal system provides better protection of the rights and freedoms of man and citizen, including in their balance with the rights and freedoms of other persons (Article 17(3) of the Constitution) compared to the corresponding provisions of the Convention in their interpretation by ECtHR.

There are examples of retreat from ECtHR rulings interpreting and applying the Convention in the practice of European countries, although also in exceptional cases and justified by good reasons. These examples include cases of identification of collisions between the Convention and national constitutions which, as a rule, not as much cover the content (substance) of certain rights and freedoms of individual as such (set out in the Convention in the most abstract way) as they have to do with concretization thereof through ECtHR interpretation, comprising, in turn, of assessment of domestic implementation and interpretation of these rights as well as the rights comparable with conventional rights in their content and enshrined in constitutions of member states.

The most revealing in this respect is the practice of the Federal Constitutional Court of the Federal Republic of Germany based on the legal position regarding the "limited legal powers of the European Court of Human Rights" developed in its decisions of 11 October 1985, of 14 October 2004 and of 13 July 2010. In particular, in consideration of the question about execution of the ECtHR judgment in Görgülü v Germany of 26 February 2004 it communicated the principle of priority of the national constitution before the decisions of the ECtHR for the purposes of the national law enforcement as follows:

- in the domestic legal order the Convention has the status of a federal law, and along with the practice of the ECtHR is no more than a reference point for interpretation in determining the content and scope of fundamental rights and principles of the Basic Law of Germany and only under the condition that this does not lead to restriction or curtailment of fundamental rights protected by the Basic Law of the Federal Republic of Germany;

- ECtHR decisions are not always binding on German courts, but should not be completely ignored;

- national justice should properly take these decisions into account and carefully adapt them to domestic law.

However, as suggested by the Federal Constitutional Court of Germany, an agreement with ECtHR can be reached through avoiding conflicts between national and international law at the initial stage of the proceedings in the national court. Such conflicts should, in principle, be kept to a minimum since both courts use the same methodology (judgment of 14 October 2004 in the case 2BvR 1481/04 (BVerfGE 111, 307). A similar position was expressed by the German Court earlier in relation to judgments of the European Court of Justice (judgment of 29 May 1974 in the case 2 BvL 52/71(BVerfGE 37, 271) [«Solange-I»]).

A similar approach is used by the Constitutional Court of Italy when it disagreed with the conclusions of ECtHR concerning the cross-border pension payments which were formulated in Maggio and others v Italy, judgment of 31 May 2011. In particular, in the ruling of 19 November 2012 on the case No 264/2012, the Court pointed out that respect for international obligations cannot be a reason for reducing the level of protection already existing in the domestic legal order, but, on the contrary, can and should be an effective tool for expanding such protection; as a consequence, any contradiction between the protection afforded by the Convention and the constitutional protection of fundamental rights must be resolved in favor of maximizing the guarantees and provided that the appropriate balance is reached with respect to other interests protected by the Constitution, i.e., with other constitutional provisions guaranteeing fundamental rights which could be affected by expansion of a particular guarantee. The priority of constitutional norms is also referred to in the judgment of the Constitutional Court of the Italian Republic on 22 October 2014 No 238/2014 in connection with the decision of the International Court of Justice in the case concerning jurisdictional immunities of states (Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment, ICJ Reports 2012): a decision of an international judicial body in case of conflict with the basic constitutional principles of Italian law makes any of its perception impossible in the context of Article 10 of the Constitution of the Italian Republic which normally provides automatic reception of international law into the national system.

The Constitutional Court of the Republic of Austria, recognizing the significance of the Convention and ECtHR judgments based thereon, also came to the conclusion about the impossibility of applying the Convention's provisions as interpreted by ECtHR if such interpretation is contrary to the norms of the national constitutional law (judgment of 14 October 1987 case No B267/86).

The Supreme Court of the United Kingdom of Great Britain and Northern Ireland in its decision of 16 October 2013 ([2013] UKSC 63) pointed out the unacceptability for the British legal system of conclusions and interpretation of the Convention by ECtHR in Hirst v the United Kingdom (No 2) judgment of 6 October 2005 regarding the problem of voting rights of prisoners. According to the Supreme Court’s legal position the ECtHR judgments, in principle, are not to be seen as requiring unconditional application: as a general rule they are only "taken into account"; application of these judgments is considered possible only if they are not contrary to the fundamental substantive and procedural norms of national law.

In all of the cases cited above a conventional-constitutional conflict is understood not as a contradiction between the Convention as such and a national constitution but rather as a collision between an ECtHR interpretation of the Convention's provisions in a particular case and the relevant provisions of the national constitution, including their interpretation by the constitutional court (or other higher courts vested with similar powers). Assessing domestic legislation’s compliance with a national constitution these national courts in making such decisions proceed from the idea of accepting the one interpretation that offers better protection to human and civil rights in the legal system of the State, with due regard to guarding the balance between constitutionally protected values ​​and international legal regulation of personal status and considering the interests of not only those who directly applied for protection, but also all those whose rights and freedoms may be affected.

Although the interpretative practice of ECtHR on a particular issue accumulated over a relatively long period of time may change, the Court’s judgments, as it would appear, should provide a higher – in comparison to the national regulation – level of protection of rights and freedoms of man and citizen. However, the ambiguity of such assumption is manifested in Konstantin Markin v. Russia, a case that became a matter of contestation in 2010 between the interpretations of the Constitutional Court of the Russian Federation and ECtHR on the question of the presence or absence of gender discrimination as a result of deprivation of male soldiers of the opportunity to receive the same three-year leave for child care purposes as provided to women soldiers.

In this case, as in other cases involving the issue of positive discrimination, a violation of Article 14 "Prohibition of discrimination" of the Convention related, as suggested by ECtHR, to the provision of certain benefits only based on objective criteria, not determined by individual characteristics of a person, such as the person’s gender. Moreover, in the understanding of the ECtHR, discrimination (in the present case, therefore, a violation of Article 14 of the Convention) is absent in the case of "negative equality", i.e. in case of failure of the legislature to guarantee the right to child-care leave to all persons falling under the category of military personnel, which, however, would mean reducing the level of protection existing in Russia today, taking into account the particular (related to maternity) social role of women in society of a rather large category of female soldiers. In the opinion of the Constitutional Court non-discrimination is only possible with respect to equality of entities belonging to the same category, in this case to the category of female soldiers, i.e. if guaranteeing the disputed right to all military personnel is impossible due to the specifics of military service and the need to ensure the country's defense and state security its provision of all women in the military with regard to the balance of constitutional values ​​is acceptable.

A typical example of the most obvious diversion from the provisions of the Constitution is the ECtHR judgment of 4 July 2013 Anchugov and Gladkov v. Russia, whereby the provisions of the Russian legislation containing limitation of the right to vote of persons convicted by a court judgment were found in violation of Article 3 on the "right to free elections" of Protocol No 1 to the Convention, which is directly contrary to Article 32(3) of the Constitution, according to which citizens kept in places of imprisonment upon conviction have no right to elect and be elected. Consent of the Russian Federation to execute such an order would violate its articles 15(1), 32(3) and 79 of the Constitution, or – by virtue of its Article 135 – will require adoption of a new Constitution, despite the fact that accession to the Convention and the participation in it of Russia as a democratic state, in which human, his rights and freedoms are considered the supreme value, is conditioned upon the adoption of and compliance with the current Constitution.

5. [The contested provisions were adopted to guarantee execution of the Convention in Russia] The provisions of Article 1 of the Federal Law ‘On Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols’, Article 32(1) and (2) of the Federal Law ‘On International Treaties of the Russian Federation’, Article 11(1) and (4), Article 392(4)(4) of the Civil Procedure Code, Article 311(3)(4) of the Arbitration Procedure Code, Article 350(1)(4) of the Administrative Litigation Code and Article 413(2)(4) of the Criminal Procedure Code were adopted in order to provide concretization to Articles 15(4), 17(1), 46(3) and 79 of the Constitution.

In the context of constitutionally protected values, these laws in their normative unity, serving as an important legal guarantee of the implementation of the Convention in the legal system of the Russian Federation, are at the same time designed to ensure a consistent procedural order of execution of ECtHR judgments against Russia based on the interpretation and application of the provisions of the Convention.

5.1. [Examples of conflicts between ECtHR interpretation of the Convention and the Constitution interpreted by the RCC] Issues arising in connection with execution of ECtHR judgments have already been the subject of consideration by the Constitutional Court.

In its Decision on merits No 4-P of 26 February 2010 [Doroshka, Kot and Fedotova] the Constitutional Court reached the following conclusions: the presence in the legal system of the state of a procedure allowing to review court decisions that have entered into force and in connection with which violations of the Convention were found, serves as a measure the necessity of which stems from Article 46 of the Convention in conjunction with Articles 19, 46 and 118 of the Constitution. Therefore, such procedure requires legislative regulation of the mechanism for execution of final judgments of ECtHR that would allow for adequate restoration of rights violation of which was found by ECtHR. Accordingly, the federal legislator is obliged to ensure the possibility to revise court decisions entered into force in cases where ECtHR found violations of the Convention in a particular case considered by a court of general jurisdiction in connection with which the applicant appealed to ECtHR.

In its Decision on merits No. 27-P of 6 December 2013 [follow-up to Markin v Russia] the Constitutional Court held that Article 392(4)(4) of the Civil Procedure Code in conjunction with Article 11(1) and (4) do not contradict the Constitution. By identifying the constitutional and legal meaning of these regulations in the existing legal order the Court relied on its own conclusions indicated in the earlier Decision No 4-P of 26 February 2010 as well as on the following legal position:

- in the process of revision of a court decision that has entered into force as provided for in Article 392(4)(4) of the Civil Procedure Code the court of general jurisdiction is obliged to obey only the Constitution and federal legislation (Article 120(1) of the Constitution) and to resolve civil cases based on the Constitution, international treaties of the Russian Federation and the legislation of the Russian Federation (Article 11 of the Code of Civil Procedure). In doing so the court may come to a conclusion that an ECtHR judgment is impossible to execute without abandoning the application of those provisions of Russian legislation that were previously held by the Constitutional Court as not violating constitutional rights of the applicant in this particular case. In such situation the court is facing a question of whether those regulations that caused violation of the relevant provisions of the Convention in their interpretation by ECtHR are constitutional at all.

- identification of unconstitutional norms and their exclusion from the existing law is only possible through the combined effect of the interaction of courts of different types of jurisdiction taking into account the differentiation of their competence, involving, on the one hand, the execution of a court of general jurisdiction of the right to raise the question of the constitutionality of the relevant norms before the Constitutional Court, and on the other hand, the duty of the Constitutional Court to finally resolve this issue. In this regard, Article 392(4)(4) of the Civil Procedure Code in conjunction with its Article 11(1) and (4) cannot be regarded as preventing the court of general jurisdiction in charge of the review proceedings of court decision that entered into force, upon request by the person in respect to whom ECtHR has found a breach of the Convention due to the use of contested provisions of Russian legislation, from suspending the proceedings and referring to the Constitutional Court with a request to check compliance of these provisions with the Constitution. Failure in any such case of the court of general jurisdiction to request clarification from the Constitutional Court and resolving the case in the procedure envisaged by Article 392(4)(4) without such clarification would mean that the practice of courts of general jurisdiction allows for various assessment of the constitutionality of the same regulations. Such disparity would be inconsistent with the Constitution, including its Articles 3, 4, 15 and 76 because it would question the supremacy of the Constitution having the highest legal force in the Russian legal system in relation to any legal act applied on the territory of the Russian Federation.

These legal positions of the Constitutional Court formulated with regard to revision in view of the newly discovered circumstances of court rulings that have entered into force in civil proceedings are universal and therefore fully applicable to other types of proceedings.

5.2. [Domestic mechanism defining the role of RCC in resolving legal collisions arising from reconsideration of court rulings in view of ECtHR judgments whereby Russian legislation was held in violation of the Convention] In order to implement the RCC Decision No 27-P of 6 December 2013, the Federal Constitutional Law No. 9-FKZ of 4 June 2014 was adopted to amend Article 101 of the Federal Constitutional Law ‘On the Constitutional Court of the Russian Federation’. This article was supplemented by the second part according to which, should any court that reconsiders (in cases stipulated by the procedural legislation) a judgment following the adoption by an interstate body for the protection of human rights and freedoms of a decision finding a violation by the Russian Federation of human rights and freedoms through the application of a law or certain provisions thereof come to the conclusion that the possibility of the application of that law can be resolved only after confirmation of its consistence with the Constitution, the court should make a request to the Constitutional Court on the constitutionality of this law.

The aforementioned legal provision in systemic unity with Article 392(4)(4) of the Civil Procedure Code, Article 311(3)(4) of the Arbitration Procedure Code, Article 350(1)(27) of the Administrative Litigation Code and Article 413(4)(2) of the Criminal Procedure Code creates thus a legal framework for ensuring the supremacy and the highest legal force of the Constitution in resolving possible conflicts between an interpretation of the Convention contained in a ECtHR judgment and the Constitution. At the same time these legal provisions – in their constitutional and legal meaning in the context of the legal positions of the Constitutional Court expressed in the present judgment – in any case require the court of general jurisdiction or the arbitration court reconsidering a ruling that has entered into force to suspend the proceedings and address the Constitutional Court with a request aimed at verification of their compliance with the Constitution. Such a request is made upon initiative of the applicant whose complaint to ECtHR resulted in declaring certain provisions of Russian legislation applied in this person’s case violating the Convention.

5.3. [In case of impossibility to execute an ECtHR judgment without compromising constitutional provisions the RCC can give an interpretation of such constitutional provisions in the context of arising contradictions and in view of Russia's international obligations] If a ECtHR judgment issued in response to a complaint against Russia and based on such an interpretation of the provisions of the Convention that leads to a contradiction with the Constitution such a judgment cannot be executed, within the meaning of Articles 4(2), 15(1) and (4), 16(2) and 79 of the Constitution. Accordingly, if Russian authorities responsible for ensuring application of the Convention as an international treaty of the Russian Federation conclude that such a contradiction occurs, and that the actions and decisions that are required for execution of such judgment may lead to a breach of the provisions of the Russian Constitution the need to clarify the actual meaning of these constitutional provisions in the context of arising contradictions and Russia's international obligations becomes evident.

This issue, as follows from Article 118(2) and 125 of the Constitution in conjunction with Articles 15(1) and (4) and 79, by its legal nature must be resolved through constitutional proceedings. In the meaning of the current legal regulation it is possible through interpretation of the relevant provisions of the Constitution by the Constitutional Court at the official request of authorized bodies in order to eliminate the uncertainty in understanding of these provisions with regard to the possibility of execution of ECtHR judgments and the adoption of individual and general measures aimed at ensuring compliance with the Convention (Article 125(5) of the Constitution, Chapter XIV of the Federal Constitutional Law ‘On the Constitutional Court of the Russian Federation’).

Moreover, as an instrument of ensuring the supremacy and the highest legal force of the Constitution such an interpretation can be applied also in cases when implementation of an ECtHR judgment (both regarding individual and general measures) imposed in response to a complaint against Russia is carried out (actually or potentially) without the involvement of courts.

6. [Reforming the European human rights system through execution of the ‘right to object’] Issues relating to the European system of human rights protection and the role of the European Court of Human Rights as its monitoring mechanism are actively discussed at the highest international level. Participants of such discussions, including those at the conferences that took place in Interlaken (2010), Izmir (2011) and Brighton (2012), have expressed conflicting opinions: from statements about the inadmissibility of any attacks on the letter and spirit of the Convention and the powers of the Court to the sharp criticism of these institutions as entities that are out of date and have lost their legal and social legitimacy, especially considering that many topical and acute problems initially, at the moment of drafting of the Convention and establishment of the European Court of Human Rights, were not included in the scope of their competence at all.

Among the most notable results of these discussions are proposals of the Brighton conference to [1] include a reference to ‘the principle of subsidiarity’ (principe de subsidiarité) and ‘margin of appreciation’ (marge d'appréciation) in the preamble of the Convention and [2] introduction by the Committee of Ministers of the Council of Europe of the relevant amendments to the Protocol No 15 to the Convention opened for signature on 24 June 2013 – to be considered by the member states. In view of these amendments, one of the possible constructive mechanisms to overcome differences and to prevent legal conflicts between sovereign states – members of the Council of Europe could be the willingness to cooperate based upon understanding and acceptance by one party of certain reservations that are only relevant in the framework of common basic principles about certain issues on which the other party is not ready to concede.

However, the interaction of European and constitutional legal orders is impossible in conditions of subordination, because only dialogue between different legal systems is the basis of a proper balance. The ECtHR is expected to adhere to this approach in its activities as an interstate subsidiary judicial authority. The effectiveness of conventional norms in a domestic legal order is largely dependent on respect by the Court of national constitutional identities of the States - Parties to the Convention. Special attention of supra-national bodies to the basic elements of such constitutional identity, which form the domestic rules on fundamental rights as well as norms on the foundations of the constitutional system that serve as guarantees to those rights, may well reduce the risk of conflict between the national and supranational law, which, in turn, will largely determine - while preserving the constitutional sovereignty of states – the efficiency of the entire European system of protection of rights and freedoms of man and citizen, and further harmonization of the European legal space in this area.

Resolution of such conflicts in the Russian Federation is delegated - by virtue of the Constitution - to the Constitutional Court, which considers it possible to use the ‘right to object’ only in the most exceptional cases for the sake of making a contribution (following the colleagues from Austria, United Kingdom, Germany and Italy) to the balanced formation of the European Court of Human Rights. However, such contribution is not made for the sake of self-isolation from those of the Court’s decisions that reflect the consensus elaborated by States - parties to the Convention, on the contrary, on the basis of the need for constructive interaction and mutually respectful dialogue with the Court. In this context, both the RCC Decision No. 27-P of 6 December 2013 and the present decision should be seen as an attempt to avoid serious complications in relations between Russia and the Council of Europe as well as the European Court of Human Rights in a situation when an ECtHR ruling involves making changes in the Russian legislation that have a potential to violate constitutionally recognised rights and freedoms of man and citizen and on a larger scale than the one against which the European Court of Human Rights has objected.

If the Constitution does not allow accepting a particular ECtHR ruling, the Constitutional Court is obliged to reflect that disagreement in its decision. At the same time, while recognizing the fundamental importance of the European system of protection of the rights and freedoms of man and citizen of which the ECtHR is an integral part, the Constitutional Court is ready to seek a legitimate compromise in order to maintain the system, however the RCC reserves the right to determine the degree of its readiness, because the boundaries of such a compromise shall be outlined by the Constitution.

Consistent implementation by the Constitutional Court of the Convention, as well as of ECtHR judgments in the Russian legal system may serve as an evidence of this approach based on the Constitution. Moreover, the Constitutional Court recognizes the importance of ECtHR’s efforts to identify weaknesses in national legal regulation and to propose ways of addressing them. However, the presence of issues with deviation from the principle of subsidiarity in the practice of the European Court of Human Rights creates, according to the Constitutional Court, the risk of situations in which the focus on rather abstract provisions of the Convention could lead to ignoring the will of the constitutional legislator in an interstate legal structure which does not intend to endow such structure with a respective element of the state sovereignty.

Based on the foregoing and guided by Articles 71, 72, 74, 75, 78, 79 and 87 of the Federal Constitutional Law ‘On the Constitutional Court of the Russian Federation’, the Constitutional Court of the Russian Federation

held:

1. To recognize that the related provisions of Article 1 of the Federal Law ‘On ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols’, Article 32(1) and (2) of the Federal Law ‘On International Treaties of the Russian Federation’, Article 11(1) and (4), Article 392(4)(4) of the Civil Procedure Code, Article 13(1) and (4), Article 311(3)(4) of the Arbitration Procedure Code, Article 15(1) and (4), Article 350(1)(4) of the Administrative Litigation Code and Article 413(4)(2) of the Criminal Procedure Code do not contradict the Constitution, as long as on the basis of these provisions in their constitutional and legal meaning in the current system of legal regulation:

- application of the Convention is ensured as a multilateral international treaty of the Russian Federation an integral part of its legal system, and enforcement of ECtHR judgments based on the Convention is guaranteed in the Court’s capacity as an interstate subsidiary judicial authority for resolving individual cases in cases when all constitutionally established domestic remedies have been exhausted;

- in any case when courts of general jurisdiction and arbitration courts in re-consideration according to established procedural legislation of cases in connection with an ECtHR ruling which found a violation be the Russian Federation of human rights and freedoms through the application of a law or certain of its provisions come to the conclusion that the possibility of applying the relevant law can only be determined after ascertaining its conformity with the Constitution shall file a request with the Constitutional Court to review the constitutionality of the law in question. In any case, the court of general jurisdiction or the arbitrage court re-considering a court decision that entered into force shall be obliged, upon request of the applicant, to suspend proceedings and to address the Constitutional Court with a request for verification of compliance with the Constitution of those provisions of the legislation that were applied in the case that served a reason for the applicant’s complaint to the ECtHR as a result of which a violation of ECHR was found.

- should state authorities responsible for ensuring the implementation by the Russian Federation of international treaties to which Russia is a party come to the conclusion that it is impossible to fulfil an ECtHR judgment against Russia due to the fact that in the part that obliges the Russian Federation to adopt individual or general measures the judgment is based on the provisions of the Convention in the interpretation conflicting with the Constitution, such authorities are entitled to appeal to the Constitutional Court with a request to resolve the issue of the possibility of execution of such judgment and implementation of measures of individual and general nature aimed at ensuring the implementation of the Convention. If the Constitutional Court comes to the conclusion that the ECtHR judgment – as based on the Convention in an interpretation which is contrary to the Constitution – cannot be executed, such a judgment in this part is not enforceable. Should the President of the Russian Federation, the Government of the Russian Federation – as long as they are obliged to ensure the implementation of international treaties to which Russia is a party – come to the conclusion that it is impossible to fulfil an ECtHR judgment issued as a result of consideration of a claim against Russia due to the fact that in terms of obliging the Russian Federation to adopt measures of individual and general nature such judgment is based on the provisions of the Convention in the interpretation leading to their conflict with the Constitution, the President and the Government are entitled to address the Constitutional Court with a request for interpretation of the relevant provisions of the Constitution in order to eliminate the uncertainty in understanding of these provisions in the context of the revealed contradiction and Russia's international obligations in relation to the possibility of execution of ECtHR judgments and the adoption of individual and general measures aimed at ensuring the implementation of the Convention.

This does not exclude the authority of the federal legislator – on the basis of the requirements of the Constitution and taking into account the legal positions of the Constitutional Court expressed in the present ruling – to create a special legal mechanism for resolving questions whether it is possible based on the presumption of the supremacy and the highest legal force of the Constitution to execute an ECtHR judgment issued in response to a complaint against Russia, including in the part of general measures. Such legal mechanism should not violate the legal nature of the Constitutional Court and its function as the highest judicial body of constitutional control.

2. The present ruling is final and not subject to appeal. It shall enter into force immediately after the proclamation, shall have direct application and shall not require confirmation by other bodies and officials.

3. The present ruling is subject to immediate publication in ‘Rossiyskaya Gazeta’, ‘Sobranie zakonodatel'stva Rossiyskoy Federatsi’ and on the official Internet portal of legal information (www.pravo.gov.ru). This ruling shall also be published in the ‘Bulletin of the Constitutional Court of the Russian Federation’.

The Constitutional Court of the Russian Federation

No 21-P