Boris Vishnevsky: Legal Self-Isolation

29 October 2020

Boris Vishnevsky, a deputy in the St. Petersburg Legislative Assembly, laureate of the Moscow Helsinki Group prize

Source: Moscow Helsinki Group [original source: Novaya Gazeta]

Why the new draft legislation on Russian law’s precedence over international law makes no sense

At President Vladimir Putin’s suggestion, the State Duma has stepped up the pace at which it is adding provisions to Russian law allowing for the nonimplementation of decisions by international courts and other intergovernmental bodies “that in their interpretation contradict the Constitution of the Russian Federation.” By doing this, it is realizing one of Putin’s most fundamental constitutional innovations in the Basic Law, made in July, an innovation that is leading Russia into “legal self-isolation.” At the same time, the fact that the European Convention on Human Rights ratified by Russia obligates Russia to implement all decisions of the European Court of Human Rights, and not only those it likes, is being ignored. As is the fact that according to the Russian Constitution itself, the Putin innovation is legally null and void.

All in all (this is being done in several installments), Putin has proposed introducing changes in the Civil, Tax, and Family Codes and more than a hundred laws, starting with the law on security and ending with laws on consumer rights protection and psychiatric assistance.

Some have already been passed on third reading, some on first, but given the Duma’s current makeup, there is not the slightest doubt as to their ultimate approval.

This demonstrates yet again that even among the deputies there are still individual literate jurists obligated to understand the legal monstrousness of what is going on. As the old joke goes, they have their own opinion, which they choose not to share.

The same paragraph is inserted in all the above-mentioned laws: “Decisions by international organs approved on the basis of provisions in international agreements with the Russian Federation that in their interpretation contradict the Russian Constitution shall not be subject to implementation in the Russian Federation. Such a contradiction may be established by a procedure determined by federal constitutional law.”

The procedure in question is the following. At the president’s request, the Constitutional Court may deem that decisions of bodies such as the ECtHR, the UN International Court of Justice, the International Criminal Court, the International Tribunal for the Law of the Sea, and others do not have to be implemented if they contain discrepancies with the Constitution.

Understandably, the Constitutional Court, which has long since failed to contradict the president in any way, in considering the question of implementing decisions of, say, the ECtHR or international arbitration that Putin will not like, does not have the slightest trouble interpreting these decisions as contradicting the Constitution. Whether it is a matter of Crimea or the Yukos confiscation, dishonest elections or political repressions.

Actually, only for this reason (so as not to implement decisions the Kremlin doesn’t like) did this provision appear, first in the law on the Constitutional Court and now in the Constitution as well.

True, back in January (when this “constitutional innovation” first appeared), all even slightly literate constitutionalists and politicians clutched their heads at its legal absurdity.

Article 15 of the Constitution explicitly states that “the generally recognized principles and standards of international law and the international agreements of the Russian Federation constitute a component part of its legal system. If an international agreement of the Russian Federation establishes rules other than those provided for by law, the rules of the international agreement shall apply.”

This article refers to the constitutional order’s foundations (which are “unalterable” by the Federal Assembly) and cannot be reconsidered without the passage of a new Constitution – and a preliminary convocation of a Constitutional Assembly. Naturally, the “Putin” amendments did not touch on this.

So, you see, the possibility of not implementing (or selectively implementing) decisions of international courts directly contradicts this article.

One of these international agreements is the European Convention on Human Rights, which was ratified by Russia.

Article 46, point 1, of this convention states that “the High Contracting Parties – that is, the member-countries of the Council of Europe–undertake to abide by the final judgment of the Court in any case to which they are parties.”

They are required to carry out without qualifications and without references to any allegedly discovered “interpretations of decisions” that contradict national constitutions. 

Yes, of course, even before, the Russian state did everything it could to block ECtHR decisions it didn’t like, or simply did not implement them. Nonetheless (and unable to bring itself to leave the Council of Europe), it could not bring itself to say directly that the state itself would decide whether or not to implement these decisions.

But this is not yet everything, because the Constitution has one more, also “unalterable,” article concerning the foundations of the constitutional order, specifically, Article 16.

Point 2 states that “no other provisions of the present Constitution may contradict the foundations of the constitutional order of the Russian Federation.”

None whatsoever. Including the “Putin innovation” that does contradict these foundations, as has already been said.

This means it is legally entirely null and void.

As are all the legislative changes stemming from it and hastily being passed right now.

When Russia has a democratic, rule-of-law state and an independent Constitutional Court, all these amendments (plus many others) will be immediately rescinded without the slightest legal problems.

And this will definitely come to pass.

Translated by Marian Schwartz

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