For another ten to twenty years in our country, it could be said that the priority of international law over Russian law is recognized. The Constitution of the Russian Federation (Art. 15) speaks eloquently about this. If domestic rules of law are contrary to international, then the latter are considered higher in importance. Rather, they were considered until recently. Today everything has changed. The priority of international law over Russian is now recognized only in exceptional cases. We will try to figure this out.
Is the priority of international law over Russian always recognized?
At the end of 2015, the State Duma of the Russian Federation adopted a contradictory law: the subordination of European courts over domestic ones is canceled. Now the priority of international law over Russian law is recognized with the consent of the Constitutional Court of the Russian Federation.
What does it mean?
This law means that our country literally distanced itself from Strasbourg. Now, the ECHR (European Court of Human Rights) cannot directly influence our jurisprudence.
Opinions on this subject were divided: some rejoice, considering that the "legal occupation" of our country has ended, while others, on the contrary, are at a loss for this law. And it is not a matter of patriotism. In fact, the State Duma adopted an absolutely unconstitutional law. It says that if the norms of international law are contrary to domestic, Russian, then it is international that are considered the main ones. In other words, the priority of international law over Russian law is recognized by the Constitution of the Russian Federation.
Changing the Basic Law again?
Apparently, it will be necessary to amend the Basic Law of the country again. Until 2015, it was assumed that if, for example, the ECHR recognizes the decision of our courts as unfair, it will be necessary to change them. Now in such cases, the verdict from Strasbourg will fall to the Constitutional Court. If the latter recognizes that the decision of the ECHR is contrary to the Constitution of the Russian Federation, then for our country this decision will not have any legal force.
Absolutely paradoxical situation, at first glance: a decision will be made on the basis of compliance with the norms of the Constitution initially with a clear violation of this very Constitution (Article 15). Only one way out: to abolish this article of the Basic Law of the country.
The end of the occupation or the beginning of arbitrariness?
Active people were divided into two camps:
- Patriots . We are glad that finally, the legal control over our country has ended.
- Liberals . They complain that now Russia has lost its last hope for a fair and humane court.
Of course, one can object both to the other. We agree that if someone there, unfriendly to our country, has the highest legal authority over us, then this is not very good. In fact, this is the lack of sovereignty in the state. Yes, of course, our legal system leaves much to be desired. But at least she’s independent of Uncle Sam.
On the other hand, many who have encountered the judicial system are not very happy with it: they complain about subjectivity, lack of clear laws, failure to comply with procedural rules, formal decision-making, etc.
Therefore, for some, the ECHR seems to be a hope of hope for justice, which today is allegedly depriving the citizens of our country.
But the fact remains: the priority of international law over Russian law is recognized in cases of approval by the Constitutional Court of the Russian Federation.
"Legal nihilism" only in Russia?
In fact, our country is not the only one. On February 26, 2004, in the case of Gergul against Germany, the German Constitutional Court issued something similar in its decision. He ruled that the decision of the ECHR serves only as a guideline for the adoption of domestic decisions. It is optional to follow.
On October 22, 2014, the Constitutional Court of the Italian Republic also established that there should be a priority of the Basic Law of Italy over the norms of the ECHR.
Thus, we can conclude that Russia is not the only country that has adopted a law on the independence of decisions from the ECHR.
Why is this attitude towards Strasbourg?
This attitude to the international court can be explained: decisions are often made without taking into account the specifics of domestic law. There is a human rights convention. It is the same for all countries that have ratified it, including Russia, which adopted it in 1998. Decisions are made only on the basis of this Convention, without deepening in domestic legislation.
However, our officials are a little cunning, seeing the reason for the appearance of such a law only in the "incorrect interpretation of the ECHR of our internal laws." The lawmakers blame Strasbourg for ignorance of psychology, mentality, culture, traditions. In fact, this means only one thing: a new original ideology is being built in Russia. How many times have we heard of our identity, spirituality, exclusivity, etc.? In fact, Russia has taken one more step to preserve its political and legal system.
Who appoints the judges? The president. Therefore, it is naive to believe that Russia will put up with practice when many legal matters go beyond the influence of the political sphere. Although the priority of international law over Russian law is recognized by the Constitution of the Russian Federation, in practice it was necessary to change this for our officials.
The Yukos affair is a serious blow to the positions of Russia's political elites
It all started with the scandalous affair of Yukos. International courts have sued Russia for several billion dollars in favor of the former owners of the concern. After that, it became clear: it was time to change something in this system. Recall that Khodorkovsky was accused of dishonest privatization. The billionaire himself said that the practice that his company used was normal at that time. Of course, the law was applied to Khodorkovsky, which did not apply to other companies loyal to the Kremlin, but this should not justify Yukos.
International courts have been politicized in this process. There was a clear violation of Russian law. The fact that the laws did not apply to other market participants should not, in the opinion of Russian lawyers, relieve the owners of the oil company from liability. But, as it turned out, international courts recognized the case as politicized and sided with the disgraced oligarch.
Such a process has made it clear to our authorities: it is time to distance ourselves from all such organizations, as an unpleasant precedent is created for future processes.
As a result, a law appeared under which the priority of international law over Russian law is recognized after checking the Constitutional Court of the Russian Federation for compliance with the decision of the ECHR with the Basic Law of the Russian Federation.
Changing the procedure for filing a complaint against Russia with the ECHR
However, it is worth noting that our country has not left the international legal system. Officially, the Constitutional Court of the Russian Federation explains that, nevertheless, the priority of international law over Russian law is recognized, albeit formally. Most likely, this refers to non-political cases, in which they nevertheless will annul the decisions if the ECHR does not agree with our justice. However, in any case, now this is left to the discretion of the Constitutional Court of the Russian Federation.
The rules for filing a complaint to Strasbourg have also changed. Earlier in a civil case, for example, it was enough to lose it in the second instance, and it was already possible to file a complaint with an international court. The ECHR did not consider the cassation and supervisory-appeal complaints to be an effective judicial defense, since they did not have the right to make a new decision. Now - they can, according to a new reform, which changed the order of appeal to Strasbourg. Today you need to get to the Supreme Court of the Russian Federation before you file a complaint with the International Court of Human Rights.