Leonid Nikitinsky: Native Superiorities

9 December 2020

By Leonid Nikitinsky

Source: Moscow Helsinki Group [original source: Новая газета]

Russian courts have begun to test the supremacy of Russian law over international law on parents and children

In case anyone has forgotten, Article 15 of the Constitution of the Russian Federation defines the Russian Constitution as the supreme juridical force: if any laws, normative acts or decisions made by the authorities contradict the Constitution, then the Constitution takes precedence.  At one time, Russian judges even handed down decisions in defence of citizens’ rights with direct reference to the Constitution.

On 8 December, the judge of Moscow’s Golovinsky district court, Natalya Bulycheva, was probably the first judge to directly apply the recent amendment to Article 79 of the Constitution, which states that ‘Decisions of interstate bodies adopted on the basis of the provisions of international treaties of the Russian Federation which, as they are interpreted, contradict the Constitution of the Russian Federation, shall not be enforced in the Russian Federation.’

This story began back in January 2014, when, citing her abuse of drugs, the Golovinsky court stripped Elena I. of her parental rights over her three children aged fifteen, two and three.  Elena appealed to the Andrei Rylkov Foundation, which provides assistance to drug addicts.  With the support of lawyer Timur Madatov, who works with the Foundation, she appealed to the Supreme Court of the Russian Federation against the deprival of her parental rights.  The Russian courts ignored her arguments that she loves and cares for her children, and that her use of drugs, which she had ceased, had not in any way affected their education and welfare.

The children were transferred to the care of another family, and although Elena I. was forbidden to communicate with them, their grandmother regularly visited them, while Elena herself kept in touch with the foster parents who, according to Elena, were ready to return the children (now aged eight and nine) to her family, on the grounds that they would be better off there.

On 25 February 2020, the European Court of Human Rights ruled that the Russian courts and authorities had violated Elena I.’s rights under Article 8 of the European Convention, on the inviolability of private and family life.  The courts and child protection agencies had not taken account of Elena’s arguments, and the use of drugs may not, of itself alone, be a reason for the deprivation of parental rights — especially as regards someone who has rid themselves of drug addiction.  The Russian Federation appealed against this (routine) decision to the Grand Chamber of the ECtHR, which upheld the decision on 12 October.  Elena immediately appealed to the Golovinsky court to annul its decision of January 2014.

Judge Bulycheva, having asked Elena I. a number of questions—including whether she had received the compensation assigned to her (20,000 Euros), and also why she had not visited her children (whom she was forbidden to see) — announced on 8 December her decision that the ECtHR “criticises Russian law” and that its decision cannot be enforced in Russia.

Elena was informed she could receive the reasons for the judicial decision in writing from the court’s chancellery ‘as soon as the judgment is ready.’

Meanwhile, the unchanged (and unchangeable, unless a new Constitution is adopted) Article 15 of the Russian Constitution contains another interesting provision (Part 4): ‘The generally recognised principles and norms of international law and international treaties of the Russian Federation form an integral part of its legal system.  If an international treaty of the Russian Federation establishes rules other than those provided for by law, then the rules of the international treaty are applied.’

Again, that is in case anyone has forgotten…

Appeals against the decision of the Golovinsky court and its refusal to execute the decision of the ECtHR will be made in parallel, both to the Russian court of appeal and to the Committee of Ministers of the Council of Europe.

Translated by Elizabeth Teague

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