On December 4 the State Duma of the Russian Federation adopted the law giving the Constitutional Court the right to declare impossible execution in Russia of judgments of international courts.
According to the draft law, the Constitutional Court may enable the Russian authorities to refuse execution of judgments not only of the European Court of Human Rights, but also any interstate body for the protection of human rights and freedoms. These include the Human Rights Committee, the Committee against Torture, the Committee on the Rights of Persons with Disabilities and others.
It means that a new law will enable the Russian authorities to ignore judgments and assessment of international agencies rendered in favor of not only companies, but also of citizens complaining about violations of their rights in Russia.
Three parliamentarians of the State Duma voted against adoption of the draft law on the priority of judgments of the Constitutional Court of Russia over judgments of the international agencies. One of them, the deputy Dmitry Gudkov, explained that the new law pursues a single objective – to evade the execution of judgments of the European Court and the International Court of Arbitration in the “YUKOS case”, according to which the Russian Federation is obliged to pay the shareholders of the company the amount totaling to more than USD 50 bln.
In contrast to the opinion of the minority, Aleksandr Tarnavskiy, one of the initiators of inquiry of deputies of the State Duma to the Constitutional Court for clarification of how to apply the judgments of the European Court in the territory of Russia, explained: “The Constitution and the judgments of the Constitutional Court contain the main legal regulations of Russia. The deputies do not believe that the ECtHR has the right to demand their change”.
In the context of this conceptual conflict it should be recalled that international legal instruments, such as The Universal Declaration of Human Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter, the Convention), which legal force in Russia weaken nowadays, were thought to ensure collective responsibility for observance of human rights and freedoms.
The newly introduced system was aimed to ensure protection and observance of human rights and freedoms, and receive a fair compensation for their violations, even when a person does not receive protection in his state.
However, even such noble legal systems have gaps. The fact is that the Court of Justice or the Council of Europe has no means of coercion of treaty countries to execution of judgments of the ECtHR.
Supervision over execution of judgments of the Strasbourg Court is entrusted with the Committee of Ministers of the Council of Europe, which prefers the methods of political dialogue, and only the country’s outright refusal to execute the judgment of the ECtHR may be grounds for suspension of its membership in the Council of Europe.
However, such effects can occur as a result of a long-term diplomatic dialogue, which finally came to a deadlock.
Thus, Article 46 of the Convention envisages that if a High Contracting Party refuses to abide by a final judgment in a case, it may refer to the Court the question whether that Party has failed to fulfill its obligations. According to paragraph 5 of Article 46 of the Convention, if the Court finds a violation, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken.
Although the Convention envisages some consequences for the respondent state, its provisions still do not provide for the imposition on the state of any sanctions for non-execution of judgments of the European Court.
Such sanctions are envisaged by the Statute of the Council of Europe: any member of the Council may be temporarily deprived of the right of representation, and the Committee of Ministers may ask him to withdraw from the Council.
In addition, in accordance with Article 9 of the Statute, the Committee of Ministers may suspend the right of representation on the Committee and on the Consultative Assembly of a member which has failed to fulfill its financial obligation during such period as the obligation remains unfulfilled.
In practice, to date there has not been a single case of refusal of the respondent state to execute the judgment of the European Court of Justice.
If a Contracting Party could not execute the judgment of the Court, the competent authorities of the relevant State informed the Committee of Ministers that such violations will occur until the completion of the internal legislative reform.
The most predictable course of events seems when the Constitutional Court of the Russian Federation will interpret the judgments of the ECtHR with respect to their conformity with the Russian legislation, while not stating directly that Russia will not fulfill them.
In turn, the Council of Europe having no direct levers of influence, but observing the balance of interests, will communicate with the Government of the Russian Federation, which is not likely to result in exclusion of the latter from the Council of Europe, or temporary suspension of its right of representation.
What consequences can be expected?
The state of Ukraine initiated several international proceedings against Russia connected, in particular with the events in the Crimea and the Donbass. The European Court has already begun work on some judicial recourse of Ukraine, and some of them are drawn up.
As part of judicial recourse Ukraine intends to demand large monetary compensation for damage caused to it and its nationals.
Summing up the above facts, unfortunately, we can say that following consideration of the complaints Ukraine is likely to content with a “dry” statement of numerous violations.
Whereas all judgments in cases of Ukraine against Russia will certainly be reviewed in the Constitutional Court of the Russian Federation, the Ukrainian government has every chance of not getting financial compensation that may be awarded by the European Court.