–Ilya Nuzov, Geneva Academy of International Humanitarian Law and Human Rights
Last month on April 19, 2016, Russia’s Constitutional Court ruled that enforcement of the 2013 Anchugov & Gladkov v. Russia judgment of the European Court on Human Rights (ECtHR) is ‘impossible’, because it is contrary to the Russian Constitution. This post considers key parts of the decision for their compliance with Russia’s obligations under international law, in light of the contextual ‘dialogue’ between Council of Europe institutions and Russia’s judicial and lawmaking authorities.
Following a request by Russia’s Ministry of Justice, the Constitutional Court considered whether it was possible to execute the Anchugov judgment, where the ECtHR found a violation of the Russian prisoners’ right to vote protected by Protocol 1(3) of the European Convention on Human Rights (ECHR), in accordance with Russia’s Constitution. Article 32(3) of the Constitution prohibits ‘citizens detained in a detention facility pursuant to a sentence imposed by a court’ to vote or to stand for election.
Relying on its decision invalidating a similar prohibition in Hirst v. United Kingdom (an analysis of which can be found here), the European Court decided that Russia’s blanket ban on voting rights for all convicted prisoners serving a sentence was disproportionate to the legitimate government aims of ensuring civic responsibility, respect for the rule of law, and the proper functioning of a democratic society (paras. 102-103). In finding a violation of Article 3 of Protocol 1 in Anchugov, the Court held that Russia exceeded its margin of appreciation in failing to secure the applicant’s right to vote in light of ‘modern- day penal policy and of current human rights standards’, by imposing a general ban that resulted in automated, general and indiscriminate disenfranchisement. (paras. 107-110) With respect to enforcement, noting that the ECtHR only evaluates the compatibility of existing domestic measures with the ECHR, the Court recommended different approaches that Russia could take to augment protections of prisoner voting rights (para. 111):
In the present case, it is open to the respondent Government to explore all possible ways in that respect and to decide whether their compliance with Article 3 of Protocol No. 1 can be achieved through some form of political process or by interpreting the Russian Constitution by the competent authorities – the Russian Constitutional Court in the first place – in harmony with the Convention in such a way as to coordinate their effects and avoid any conflict between them.
Accordingly, it was up to Russian authorities to ensure better protection of prisoner voting rights in Russia either by constitutional lawmaking, or by means of judicial interpretation of Article 32(3) of the Constitution, reconciling it with the European Court’s interpretation of Article 3 of Protocol 1.
The April 19 decision was the Constitutional Court’s first on the enforceability of the ECtHR’s judgments, since the Court’s mandate was broadened by the December 2015 Amendments to the Federal constitutional law on the Constitutional Court of Russian Federation (‘Amendments’). The Amendments concretized operative passages of the Constitutional Court’s own July 14, 2015 judgment No 21-P that expressly recognized the Constitution’s superiority over international treaties, and suggested a procedural mechanism empowering the Constitutional Court with the authority to determine whether a Strasbourg decision is incompatible with the Constitution, and is not to be implemented. Faced with Anchugov and other burdensome European Court judgments, particularly its rulings in Markin v. Russia and the Yukos case, the latter ordering Russia to pay 1.9 billion euros to shareholders of the oil giant and perceived by many as the real catalyst of the July 2015 judgment, Russia’s Parliament responded with the Amendments. These entitled the Constitutional Court, upon a request by the President or government, to review a contradiction between the provisions of a treaty as interpreted by the treaty body and the provisions of the Constitution, and to declare decisions of international courts as ‘unenforceable’.
The Amendments were subsequently evaluated for compliance with international law by the European Commission for Democracy through Law (Venice Commission). In its Interim Opinion of March 15 2016, the Commission acknowledged situations where decisions of international tribunals might contradict the Constitution, and held that in so far as the Amendments ‘reflect that the Constitutional Court is empowered to rule on conformity with the Constitution of’ an international decision, they are not in violation of international law. Regardless of the relationship between the domestic and international norms however, the Commission reiterated that a State is bound by Article 26 of the Vienna Convention on the Law on Treaties (VCLT) to respect treaties and, pursuant to Article 27 of the VCLT, it cannot invoke the provisions of its internal law as justification for its failure to perform a treaty, including the ECHR. Any future declaration by the Constitutional Court of unenforceability of a judgment of the ECtHR, the Commission concluded, would violate Article 46 of the ECHR–an unequivocal legal obligation that ‘includes the obligation for the State to abide by the interpretation and the application of the Convention made by the Court in cases brought against it.’ The Constitutional Court’s ability to declare a judgment of the ECtHR ‘unenforceable’, preventing the execution of the judgment in any manner in Russia, is therefore contrary to international law.
The April 19 decision of the Constitutional Court contains three main findings:
1. First, that the execution of the Anchugov judgment with respect to ‘general measures’ requiring changes to Russian legislation which would permit categorized restrictions on voting rights of some, not all, citizens sentenced to prison terms, was ‘impossible’. Article 32(3) of the Constitution, which ranks above international treaties in Russia’s legal hierarchy, unequivocally prohibits voting rights without exceptions to all inmates in detention facilities, as determined by penal law.
2. Secondly, that the execution of the judgment with respect to ‘general measures’ requiring just, proportional, and differentiated application of voting rights restrictions was ‘possible’. This is consistent with Article 32(3) of the Constitution, and articles of the Penal Code concretizing its provisions, that do not envision deprivation of voting rights of first time petty offenders whose punishment falls short of ‘detention in a detention facility’. For more serious offenses, detention as punishment commensurate with the gravity of such crimes is imposed by a court sentence; consequently disenfranchisement only follows if milder forms of punishment were insufficient to meet punitive goals as a matter of law.
It remains open to the legislature ‘to optimize the system of criminal punishment, by among other means, the designation of certain regimes of deprivation of liberty as alternative punitive measures, characterized by restriction of liberty but not entailing the deprivation of voting rights’.
3. Thirdly, the execution of the judgment concerning measures of ‘individual character’ with respect to citizens Anchugov and Gladkov was ‘impossible’, since they were sentenced to long prison terms for serious crimes, and therefore could not expect to have access to voting rights even according to the criteria established by the ECtHR.
With respect to the Constitutional Court’s first conclusion, it may well be that the European Court’s ‘evolutive’ interpretation of Article 3 of Protocol 1 of the ECHR came to odds with the ban embodied in Article 32(3) of the Constitution, as argued in the majority opinion of the Constitutional Court. That is, the European Court’s modern-day, expansive interpretation of prisoner voting rights evolved from the point of parity between Russia’s Constitution and Article 3 Protocol 1 in 1998, at the time of Russia’s ratification of the Convention, to the present point of divergence. In this sense, the Court was within bounds of international law to declare that the European Court’s interpretation of Article 3 of Protocol 1 was contrary to the Constitution, which, according to the July 2015 judgment, prevailed over international law. In these circumstances, the Constitutional Court’s options were to declare the judgment as contrary to the Constitution and do nothing, or to suggest ways to reconcile with ECtHR’s judgment through legislative changes, even the modification of the Constitution, or its own interpretations of the Constitution.
The mere prospect of a constitutional change cannot be a bar to the enforceability of the European Court’s judgment, however. And the European Court did not require a constitutional change. Indeed, noting the difficulty of amending the Constitution, the ECtHR in Anchugov permitted Russia to consider other approaches to implementing the judgment. As we will see below, the Constitutional Court’s judges themselves suggest a number of such harmonizing approaches.
Moreover, the disparity between the Constitution and the ECHR does not give the Constitutional Court the right to ‘insist’ on the interpretation of Article 3 Protocol 1 of the Convention based on the understanding of the provision that prevailed at the time of Russia’s ratification of the treaty, refusing implementation. The execution of international obligations stemming from a treaty in force for a State is incumbent upon all State bodies, including the Constitutional Court. Acting in its capacity as a state organ, the Court’s declaration of the unenforceability of a binding decision interpreting the ECHR therefore runs contrary to Article 46 of the European Convention. Thus, like the Amendments, the Decision constitutes an internationally wrongful act engaging Russia’s responsibility under international law.
The Constitutional Court’s second point has been seen as the silver lining of the decision. The Court authorizes the legislature to change mandatory prison sentences to alternative punishment, such as time at a corrective settlement colony, which would not be accompanied by a prisoner losing his voting rights. This would enable some differentiation in disenfranchisement of prisoners, although arguably short of meeting requirements of Article 3 of Protocol 1. As the authoritative voice on the interpretation and application of the Constitution whose decisions have constitutional value, the finding evidences Constitutional Court’s capacity and ability to harmonize the Anchugov judgment with Article 32(3) of the Constitution. Thus, inasmuch as it could be viewed as a compromise with the European Court, this instruction to the legislature actually underscores the Constitutional Court’s reluctance to use its interpretive powers where doing so might disfavor the petitioner’s interests.
This view finds support in the special opinions of judges Kazantzev and Yaroslavtzev, published several days after the April 19 majority ruling. Judge Yaroslavtzev suggested that the execution of the Anchugov judgment with respect to measures of ‘general character’ is possible without changing or contradicting the Constitution, because according to the Constitution the contents of the prohibition embodied in Article 32(3) should be detailed by other federal laws. Specifically, lawmakers could consider changes to penal and criminal procedure laws in such a way as to provide for partial differentiation of Article 32(3) through the interpretation of terms ‘sentence imposed by the court’, ‘detained’ and ‘detention facility’, along the lines suggested by the majority. Judge Kazantzev argued that since the Constitutional Court has previously interpreted Article 32(3) to limit voting rights, a fortiori it can use its interpretive powers to expand human rights protections in line with the spirit and the letter of the Constitution, ensuring compliance with the ECHR.
Throughout the judgment, the Constitutional Court reiterates its experience of ‘constructive collaboration and mutually respective dialogue with the European Court of human rights.’ By denying individual plaintiffs Anchugov and Gladkov any recourse however, the Constitutional Court preserves its dubious authority to declare unenforceable judgments and just compensation awards to victims of human rights abuses in Russia. Whether or not it is a precursor to a similar review of the Yukos judgment, the April 19 decision leaves open the door to further ‘constitutionality’ inquiries on behalf of the government and the President, challenging the applicability of binding international law in violation thereof.
Suggested Citation: Ilya Nuzov, Russia’s Constitutional Court Declares Judgment of the European Court “Impossible” to Enforce, Int’l J. Const. L. Blog, May 13, 2016, at: http://www.iconnectblog.com/2016/04/russias-constitutional-court-declares-judgment-of-the-european-court-impossible-to-enforce